Williams v. R.T.G. Furniture Corp.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

TONY WILLIAMS,

Plaintiff,

v. Case No. 8:22-cv-2330-VMC-CPT

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 Tony

Williams responded on November 20, 2023. (Doc. # 54).

Defendants replied on December 4, 2023. (Doc. ## 55, 56). For

the reasons that follow, the Motions are granted.

I. Background

A. RTG and SEIDS

R.T.G. Furniture Corp. (“RTG”) is a furniture store

chain. (McBride Decl. at ¶ 3). The company owns a distribution

center in Lakeland, Florida. (Id.). At this center, RTG uses

logistics and delivery companies to deliver furniture. (Id.).

One of these logistics companies is SE Independent Delivery

Services, Inc. (“SEIDS”). (Id.; Crossley Decl. at ¶ 3).

RTG and SEIDS are two separate companies. (McBride Decl.

at ¶ 4; Crossley Decl. at ¶ 4). They have different reporting

structures and management. (McBride Decl. at ¶ 4; Crossley

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,” or (3) “control the terms

and conditions” for each other’s employees. (McBride Decl. at

¶ 4; Crossley Decl. at ¶ 4). RTG and SEIDS also maintain their

own employment-related policies and procedures. (McBride

Decl. at ¶ 4; Crossley Decl. at ¶ 4). “RTG ha[s] no control

over the terms and conditions of SEIDS employees, and SEIDS

ha[s] no control over the terms and conditions of RTG

employees.” (McBride Decl. at ¶ 4).

Even so, the companies overlap in some respects. SEIDS

operates out of RTG’s Lakeland distribution center and other

RTG locations, despite also having its own locations. (Doc.

# 51-3 at 78:16-79:6); (Crossley Decl. at ¶ 3). Additionally,

both SEIDS and RTG utilize Retail Management Services

Corporation (“RMSC”) for managerial and administrative

services. (McBride Decl. at ¶ 1); (Doc. # 55 at 2). The

employee handbooks for RTG and SEIDS are also very similar in

form and content. (Doc. # 54-2; Doc. # 54-3).

SEIDS’s performance of logistics and delivery services

for RTG has changed in recent years. “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 [nationwide].” (McBride Decl. at ¶ 5; Crossley Decl.

at ¶ 5). This transition eliminated the jobs of “the vast

majority of SEIDS employees performing the LoadOut function.”

(Crossley Decl. at ¶ 5). Several employees in loadout were

transitioned into other positions within SEIDS. (Id. at ¶ 6).

RTG also offered employment to many of the individuals

impacted by the transition. (McBride Decl. at ¶ 5). These

individuals were free to either “accept or decline as they

wished.” (Id. at ¶ 5).

B. Williams’s Employment with SEIDS

Williams, who identifies as Black and African American,

began his employment with SEIDS in the 1990s. (Williams Depo.

at 28:23-29:19); (Doc. # 1 at ¶ 15). He was promoted to a

supervisor position in 1997 and later promoted to a manager

position around 2000. (Williams Depo. at 35:4-16, 47:11-16).

Over the remainder of Williams’s employment, he held manager

positions in the loadout, quality, and returns departments.

(Id. at 47:17-21, 55:1-7, 59:19-25).

Due to the transition of the SEIDS loadout department to

RTG, Williams was transferred to a position in SEIDS’s returns

department on July 22, 2019. (Crossley Decl. at ¶ 6). Williams

later received a salary increase after his annual review.

(Id. at ¶ 2 & Ex. C).

Williams testified at his deposition that he was jointly

employed by SEIDS and RTG from 1993 to 2020. (Williams Depo.

at 271:3-8). He believes everyone who worked at SEIDS was

also an employee of RTG. (Id. at 272:8-12). He further

testified that, until about 2000, his paychecks said RTG and

he had an RTG handbook, as well as that his benefits were

previously provided through RTG and he had an RTG email and

badge. (Id. at 282:6-8, 282:19-22, 283:12-15, 283:21-284:1,

286:7-21).

However, Williams also testified that, as a SEIDS

employee, he could not receive direction from RTG employees

and RTG employees would have to ask his boss at SEIDS if they

wanted him to do something. (Id. at 102:17-23). He also stated

that he could not discipline, hire, decide the pay of, or

provide input on the performance of the RTG employees he

worked with. (Id. at 274:12-25). Similarly, Williams noted

that his work schedule was assigned by SEIDS employees. (Id.

at 285:19-24). In addition, at his deposition, Williams was

able to clearly differentiate the SEIDS positions from the

RTG positions, and the SEIDS employees from the RTG employees.

(Id. at 67:14-16, 122:25-123:2, 154:20-25, 277:13-17).

As Susan McBride, Head of HR for RMSC, explained, “RTG

had no control over the terms and conditions of” Williams’s

employment with SEIDS. (McBride Decl. at ¶¶ 1, 4). RTG states

that the company never employed Williams and “also never

extended any offers of employment to him as part of the load

out function transition.” (Id. at ¶ 6).

C. Alleged Discriminatory Incidents

Due to the transition of the loadout department, SEIDS

transferred Angela Cook (Caucasian), a longtime employee, to

the Lakeland distribution center. (Doc. # 50-5 at 65:18-66:6,

134:1-12). After the transition, Cook became Williams’s

supervisor. (Id. at 64:18-65:17). Williams originally

responded positively to Cook’s transfer; he remembered

saying, “That’s good. She a good worker, I remember her.”

(Williams Depo. at 118:25-119:1). However, Williams also

stated that he did not originally know that she would become

his supervisor. (Id. at 119:1-2).

On August 11, 2020, Williams asked Cook if he could leave

early for lunch since it was his birthday. (Id. at 129:9-14,

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

on BPT time,” which she clarified meant “Black People Time,”

and then proceeded to laugh. (Id. at 129:15-19). According to

Williams, only he and Cook were part of this conversation.

(Id. at 129:20-23).

In response, Williams told Aubrey Henry, Transportation

Manager for SEIDS, what Cook had said. (Id. at 131:25-132:11);

(Doc. # 50 at ¶ 12). Henry directed Williams report the

comment to HR. (Williams Depo. at 132:11-16). However,

Williams never did so. (Id. at 132:17-24).

Williams also stated that he told Travis Houston (Black,

African American), a loadout manager for RTG, about the “Black

People Time” comment. (Id. at 130:17-18). However, Houston’s

recollection of the comment differs from that of Williams.

Houston testified that Williams told him about the “Black

People Time” comment, but that Williams had said that Cook

had told Williams and “a couple guys in the breakroom,” “what

do you think you’re on, you think you on black people time or

what, what do you guys think you’re doing.” (Houston Depo. at

185:20-186:3, 328:6-14). Houston did not hear Cook make this

comment. (Id. at 186:20-21). According to McBride, RTG never

received any complaint regarding the “BPT” or “Black People

Time” comment. (McBride Decl. at ¶ 9).

Williams testified that this comment was not isolated.

Specifically, Williams testified that Cook would also use

terms like “Black mother. Black A. . . . black lazy . . .

[d]umb and stupid,” when referring to employees at the

Lakeland distribution center. (Williams Depo. at 184:12-24).

Williams also testified about other comments and actions

he believes provide evidence of discrimination. He testified

that the first incident of discrimination occurred when Mark

Razon, an RTG employee, told him that Dave Bennett

(Caucasian), Vice President for RMSC, wanted to “change the

culture.” (Id. at 105:11-17, 128:6-129:5); (Doc. # 51-6 at

46:11-47:14). Williams interpreted the statement as “racist

because we all – we was all black managers and we was mostly

black workers and Hispanic. So to change the culture, that

was a racist statement.” (Williams Depo. at 128:21-25).

Similarly, Razon later told Williams that Bennett was “going

to change the culture of the delivery department.” (Id. at

105:3-17).

Further, Williams stated that Brian Beckham, RTG’s

Operations Manager, and Razon were very rude to him. (Id. at

170:19-172:4); (Doc. # 51 at 8). He also raised concerns about

Cook being placed over him in the corporate hierarchy after

her transfer; his loss of job responsibilities; Cook telling

him that Jerry Brennan, Senior Director of Operations with

SEIDS, told Cook to tell Williams not to speak in a meeting

with Bennett; and Joe Tipping, a Vice President with SEIDS,

not responding to these issues. (Williams Depo. at 91:5-11,

156:1-157:15, 173:25-178:7, 192:6-12); (Doc. # 50 at 13);

(Doc. # 51-6 at 16:4-7). Williams also stated that Razon

physically threatened Williams before Razon was terminated,

as well as in two additional altercations. (Williams Depo. at

193:1-196:8). Further, he testified that “somebody by the

name of Anthony” told him “they want y’all out of here so bad

it hurts” and told him to “be careful.” (Id. at 150:6-151:1).

D. The Flower Game

The Federal Trade Commission (“FTC”) has recognized

scams such as the “Mandala Game” and “Blessing Circle” 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 January

24, 2024).

The FTC issued a public warning about these scams in May

2020. Id. In these scams, individuals are invited to join a

circle by making a cash contribution to the person who invited

them. Id. The recruited individual is usually told that they

will receive large returns on their investment. Id. Once the

individual makes a payment, they are placed on the board. Id.

They move towards the center of the board by recruiting others

to join the circle. Id. Once the individual reaches the

center, they begin to collect the money from new recruits.

Id. These scams depend on recruiting new people, so that money

will continue to flow into the game. Id. Once a board runs

out of new recruits, no new money is added to the board, and

everyone not yet at the center of the board walks away with

no financial reward. Id.

In August 2020, the FTC published another consumer

warning. 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-

fake-savings-club (last visited January 24, 2024). The

warning states 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.” 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, RTG’s HR department “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 to which he was invited by

and paid Williams $500 to join and the other to which he was

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

¶ 10). Jackson stated that Williams and Houston told him that

he would receive a return of $12,000 for his investment in 4-

6 weeks. (Id.). He also stated that, after a while, he noticed

that he was not advancing toward the center of the boards,

despite several individuals joining each one. (Id.). As a

result, Jackson asked for his money back. (Id.). In response,

“[Williams] told him to ‘trust the process.’” (Id.).

Eventually, Jackson went to RTG’s HR department and filed his

complaint against Williams and Houston. (Id.).

On August 27, 2020, Jahnu Rodriguez (Hispanic), VP of

Corporate Security for RMSC, began his investigation into

Jackson’s allegations. (Id. at ¶ 11). He interviewed

approximately 25-30 witnesses at the Lakeland distribution

center between September 1 and 9, 2020, for his investigation.

(Id.).

“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.” (Id. at ¶ 12). “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 actually 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.’”

(Id. at ¶ 13). During his deposition, Williams agreed that to

move to the center of the board, participants needed to

recruit other people to 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.” (McBride Decl.

at ¶ 14). However, Jackson provided screenshots of messages

that depicted Houston inviting Jackson to join the flower

game for $1,500. (Id.). At his deposition, Houston admitted

that he had participated and received money from the flower

game. (Houston Depo. at 238:1-3, 239:4-8, 240:5-14, 241:3-

18).

“Finally, when [] Snead was interviewed about the flower

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

funds.” (McBride Decl. at ¶ 15). “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 Susan McBride, the head of HR for RMSC,

“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 ¶ 1, 18). “If RTG had received such a

report, RTG would have investigated, and taken appropriate

action if the investigation substantiated the allegations.”

(Id.). According to Susan Crossley, an employee in SEIDS’s

Operations department, the same is true of SEIDS. (Crossley

Decl. at ¶ 8).

E. Williams’s Termination

RTG shared the findings of Rodriguez’s September 2020

investigation into the flower game with SEIDS management.

(McBride Decl. at ¶ 16). “As a result of their solicitations

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

three individuals were terminated for ‘gross misconduct’ from

their respective employment.” (Id.). SEIDS made the decision

to terminate Williams’s employment. (Id.).

According to McBride, “[a]t no point did [Williams]

complain to RTG that he was being discriminated or retaliated

against, or harassed, based on any protected characteristic.”

(Id. at ¶ 17).

F. Procedural History

Williams initiated this action on October 11, 2022,

asserting claims for race, color, and national origin

discrimination under the FCRA and Section 1981. RTG and SEIDS

filed their answers (Doc. ## 7, 9), and the case proceeded

through discovery.

Now, RTG and SEIDS both seek summary judgment on all

claims. (Doc. ## 50, 51). Williams has responded (Doc. # 54),

and RTG and SEIDS have replied. (Doc. ## 55, 56). 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, Williams asserts claims for race,

color, and national origin discrimination under the FCRA and

Section 1981 against both SEIDS and RTG.1 (Doc. # 1).

A. No Joint Employment

As a preliminary matter, there is no genuine dispute of

material fact that RTG and SEIDS are not joint employers.

Claims under the FCRA and Section 1981 may only be brought by

employees against their employers. Llampallas v. Mini-

Circuits, Lab, Inc., 163 F.3d 1236, 1243 (11th Cir. 1998).

Therefore, while the parties agree that Williams was an

employee of SEIDS, Williams may only bring his claims against

RTG if RTG qualifies as his joint employer. See (Doc. # 1 at

1 In Williams’s response, he appears to raise a retaliation

claim for the first time. See (Doc. # 54 at 17) (citing

caselaw relevant to retaliation claims). Claims not raised in

a complaint cannot be raised for the first time in a response

to a summary judgment motion. See Iraola & CIA, S.A. v.

Kimberly-Clark Corp., 325 F.3d 1274, 1286 (11th Cir. 2003)

(affirming a district court’s refusal to allow a plaintiff

“to raise a new claim” in their response to a motion for

summary judgment). Therefore, the Court will not consider

this claim.

¶ 5) (alleging that “Defendants acted as and were joint

employers of Plaintiff”).

“[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) (citing McKenzie

v. Davenport-Harris Funeral Home, 834 F.2d 930, 933 (11th

Cir. 1987)).

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

Pa., 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, Williams provides some information indicating that

RTG and SEIDS are joint employers. He testified that he was

jointly employed by the companies between 1993 and 2020, and

that he believed that all SEIDS employees were also employed

by RTG. (Williams Depo. at 271:3-8, 272:8-12). He further

testified that, until about 2000, his paychecks said RTG and

he had an RTG handbook, as well as that his benefits were

previously provided through RTG and he had an RTG email and

badge. (Id. at 282:6-8, 289:19-22, 283:12-15, 283:21-284:1,

286:7-21). Additionally, Williams emphasizes that both RTG

and SEIDS used the same Lakeland distribution center, in a

workflow involving employees from both companies. (Doc. # 54

at 18). The companies also both used RMSC as a HR provider.

(McBride Decl. at ¶ 1); (Doc. # 55 at 2).

However, even when viewed in the light most favorable to

Williams, this information does not create a genuine dispute

of material fact that RTG and SEIDS are joint employers. 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,” or (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” Williams’s

employment with SEIDS. (McBride Decl. at ¶ 4). In short,

despite some contrary indications from dated paperwork, RTG

and SEIDS do not exercise sufficient control over each other’s

employees to qualify as joint employers. 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) (determining that a company was

not a joint employer because it “did not control the hiring

and firing of the [other company’s] 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).

Williams’s testimony that he was unable to receive

direction from RTG employees or discipline, hire, decide pay

for, or comment on the performance of RTG employees, as well

as his ability to distinguish between SEIDS and RTG employees,

provide further evidence that RTG and SEIDS were not his joint

employers. (Williams Depo. at 67:14-16, 102:17-23, 122:25-

123:2, 154:20-25, 274:12-25, 277:13-17).

That RTG and SEIDS both used the Lakeland warehouse for

furniture delivery, used the same HR provider, and maintained

similar handbooks, (Crossley Decl. at ¶ 3); (McBride Decl. at

¶ 1); (Doc. ## 54-2, 54-3); (Doc. # 55 at 2), does not negate

this evidence.

Since RTG was not Williams’s employer, RTG cannot be

held liable for harm to Williams under the FCRA or Section

1981. See Llampallas, 163 F.3d at 1243 (determining that

claims under the FCRA and Section 1981 may only be brought by

employees against their employers). Therefore, RTG’s motion

for summary judgment on all counts is granted in full.2

Additionally, because RTG and SEIDS are not joint

employers, each company’s actions cannot be attributed as the

2 Even if RTG and SEIDS were joint employers and the conduct

of each company’s employees could be attributed to the other

company, Williams’s discrimination claims against RTG under

the FCRA and Section 1981 would still fail. No reasonable

jury could determine that Williams’s termination from SEIDS

resulted from discrimination, given the evidence that SEIDS

terminated Williams for participating in and soliciting funds

for the flower game, which Rodriguez’s investigation had

determined was a pyramid scheme. (Crossley Decl. at ¶ 7).

actions of the other. Rather, as Williams was only ever

employed by SEIDS, the Court will only consider SEIDS’s

actions during Williams’s employment. Thus, comments and

actions by RTG employees will not be used to support

Williams’s claims against SEIDS.

B. SEIDS’s Motion

In Williams’s complaint, he asserts claims for race,

color, and national origin discrimination under the FCRA and

Section 1981 (Counts I-VI). (Doc. # 1).

The Court will discuss 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

Section 1981 discrimination claims have the same requirements

of proof and use the same analytical framework); 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.”).

1. Discrimination Claims

To prevail on his discrimination claims, Williams must

demonstrate that “it is more likely than not,” based on either

direct or circumstantial evidence, “that [his] termination

was based on an illegal discriminatory criterion.” Jones v.

Bessemer Carraway Med. Ctr., 151 F.3d 1321, 1323 (11th Cir.

1998).

Williams asserts that he has both direct and

circumstantial evidence for his claims. However, neither form

of evidence is sufficient to preclude granting SEIDS summary

judgment on these 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 statements upon which Williams relies

(Doc. # 54 at 6-8) qualify as direct evidence of

discrimination.

First, Williams asserts that the several statements by

Cook constitute direct evidence: (1) her comment about

returning on “Black People Time” and (2) her references to

Black employees as “Black ‘mother f****r,’ ‘Black A*****e’,

‘lazy,’ ‘dumb,’ and ‘stupid.’” (Doc. # 54 at 7-8); (Williams

Depo. at 184:12-24). These statements are offensive. However,

they do not qualify as direct evidence that Williams’s

termination was motivated by discrimination.

“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).

While Williams does not provide a specific timeframe for most

of Cook’s comments, he highlights that her “Black People Time”

comment was made only “a few days” before he was called to

discuss the flower game. (Doc. # 54 at 9). However, even

assuming that these comments were made sufficiently close to

Williams’s termination, they do not constitute direct

evidence. Cook was not involved in the flower game

investigation, see (McBride Decl. at ¶ 2 & Ex. A) (describing

the investigation and its findings), and even Williams does

not believe she was involved in his termination, see (Williams

Depo. at 154:9-12) (stating that the termination “had to be

[by] Dave Bennett”). Further, Cook’s statements are not

clearly connected to Williams’s termination. 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’”).

Second, Williams asserts that Bennett’s comments about

changing the culture of the warehouse and delivery department

constitute direct evidence. (Doc. # 54 at 8). Williams

testified that Razon told him that Bennett wanted to “change

the culture.” (Williams Depo. at 128:6-129:5); (Doc. # 51-6

at 46:11-47:14). Williams interpreted the statement as

“racist because we all – we was all black managers and we was

mostly black workers and Hispanic. So to change the culture,

that was a racist statement.” (Williams Depo. at 128:21-25).

Additionally, Razon later told Williams that Bennett was

“going to change the culture of the delivery department.”

(Id. at 105:7-17).

However, neither of these comments constitutes direct

evidence. These comments do involve Bennett, who may have

made the decision to terminate Williams. (Id. at 154:9-12).

However, neither statement was explicitly discriminatory in

nature. See Ossmann, 82 F.4th at 1015 (defining “[d]irect

evidence of discrimination” as “prov[ing] existence of a fact

without inference or presumption”). “[O]nly the most blatant

remarks” qualify as direct evidence. Carter, 870 F.2d at 582.

These comments do not meet this standard. Additionally,

Williams has not provided evidence that the comments were

tied to his termination. Therefore, the Court would need to

make inferences to interpret these comments as evidence

supporting Williams’s discrimination claims. As such, these

comments do not qualify as direct evidence.

Third, Williams highlights that after Razon informed

Williams of Bennett’s comments about changing the culture,

Razon physically threatened Williams. (Doc. # 54 at 8).

However, as Razon was an employee of RTG, (Williams Depo. at

105:7-17), his actions cannot be attributed to SEIDS.

In sum, no direct evidence of discrimination exists.3

Thus, Williams has not established a prima facie case based

on direct evidence.

(b) Circumstantial Evidence

In Williams’s response, he also argues that he has

established a convincing mosaic of discrimination. (Doc. # 54

at 11-14). He does not address the framework established by

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). (Id.).

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.

3 Williams alleges additional instances of discrimination.

However, he does not suggest that they are direct evidence of

discrimination (Doc. # 54 at 6-8), and the Court determines

that none qualify.

(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. (citation omitted).

Williams has not shown a convincing mosaic of

discrimination based on race, color, or national origin by

SEIDS.

As an initial point, Beckham and Razon were RTG

employees. (Williams Depo. at 105:7-17, 170:19-172:4); (Doc.

# 51 at 8). Therefore, their comments and actions towards

Williams cannot be attributed to SEIDS. Additionally, the

other comments and actions that Williams highlights do not

suffice to show a convincing mosaic of discriminatory

evidence. These incidences include (1) Cook’s “Black People

Time” comment and other offensive language, (2) Bennett’s

comments about changing the culture in the warehouse and

delivery department, (3) Cook’s placement over Williams in

the corporate hierarchy, (4) Williams’s loss of job

responsibilities, (5) his instructions to keep quiet at a

meeting, and (5) the lack of response from Tipping. (Id. at

91:5-11, 105:7-17, 128:6-129:5, 129:15-19, 131:25-132:11,

156:1-157:15, 173:25-178:7, 184: 12-24; 192:6-12). Some of

this evidence is offensive and discriminatory, such as Cook’s

language. However, much is race-neutral in nature.

Even if the Court believed these comments sufficiently

supported Williams’s claims, Williams still could not

establish a convincing mosaic of discrimination. Williams has

not shown that the reason provided for his termination, his

participation in and solicitation of funds for the flower

game, 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 v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121,

1136 (11th Cir. 2020) (quoting Chapman v. AI Transp., 229

F.3d 1012, 1030 (11th Cir. 2000)); see also Worley v. City of

Lilburn, 408 F. App’x 248, 251 (11th Cir. 2011) (“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. 1999).

Here, SEIDS states that the company terminated Williams

because he participated in and solicited money for the flower

game. (Crossley Decl. at ¶ 7). Further, Williams admits he

participated in the flower game and received money from it.

(McBride Decl. at ¶ 13 & Ex. A).

Williams’s argument that Rodriguez’s report

mischaracterized the flower game as a pyramid scheme instead

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

and African American people is unpersuasive. (Doc. # 54 at 3-

4). The flower game was not a legitimate “sou sou” because

many participants never got their money back. (McBride Decl.

at ¶ 12). This failure to return the money “invested”

motivated Jackson to complain about the flower game and

Williams’s involvement in it to RTG’s HR. (Id. at ¶ 10).

Rather, the flower game provided a false promise of large

financial reward. (Id. at ¶¶ 10, 12); 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-fake-savings-club (last visited

January 24, 2024) (“These kinds of illegal pyramid schemes .

. . promise you’ll make more money than you put in and depend

on recruiting new people to keep money flowing into the

fund.”). Thus, SEIDS correctly concluded that Williams had

solicited money from employees for a pyramid scheme.

Williams further argues that “[h]ad [the flower game]

been a lottery pool, a sports betting club, or one of the

many other forms of ‘gambling’ that take place in

predominantly white workplaces across America, [RMSC’s]

investigation would have likely arrived at a different

conclusion.” (Doc. # 54 at 4). However, “SEIDS never received

any complaints from any individual regarding ‘lottery pools’

or ‘sports betting pools’ at the Lakeland distribution

center.” (Crossley Decl. at ¶ 8).

Williams’s argument that the RMSC report

mischaracterized the flower game also does not shed light on

whether SEIDS genuinely relied on this characterization when

deciding to terminate Williams. “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, 408 F. App’x at 251.

Here, there is no evidence that SEIDS 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).

RTG directed Rodriguez to investigate the flower game.

(McBride Decl. at ¶ 11 & Ex. A). In doing so, Rodriguez

interviewed 25-30 people and reviewed written evidence.

(Id.). As a result, he determined that the game was an illegal

pyramid scheme. (Id. at ¶ 16 & Ex. A). All three RTG and SEIDS

employees found to have solicited money for the flower game

were terminated based on their participation in the flower

game. (Id. at ¶ 16). There is no reason to doubt that SEIDS

relied in good faith on Rodriguez’s investigation in deciding

to terminate Williams.

“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).

While Williams has provided some evidence that he experienced

discriminatory behavior while employed by SEIDS, he has not

created a genuine dispute of material fact that his

termination was caused by discrimination.

2. Hostile Work Environment Claims

In Williams’s response, he argues that he was subject to

a hostile work environment. See (Doc. # 54 at 8-10) (arguing

that “Plaintiff has adduced evidence of a hostile work

environment”). In both RTG’s and SEIDS’s replies, Defendants

argue that these claims were not properly pled in the

complaint and, therefore, should not be considered by the

Court. (Doc. # 55 at 1-2); (Doc. # 56 at 1-2).

Williams’s complaint alleged race, color, and national

origin discrimination under the FCRA and Section 1981. (Doc.

# 1). The complaint does not list hostile work environment as

a separate count, nor explicitly mention hostile work

environment or harassment within any count. At most, the facts

section of the complaint includes one reference to Williams

being subject to “harassment” by Ms. Cook and the FCRA counts

state that he was subject to race-, color-, and national

origin-based animosity. (Doc. # 1 at ¶¶ 33, 43, 54, 65).

Courts have previously refused to consider a hostile

work environment claim where the plaintiff did not separately

plead it. In Palmer v. Albertson’s LLC, 418 F. App’x 885 (11th

Cir. 2011), the Eleventh Circuit upheld a district court’s

decision not to consider a plaintiff’s hostile work

environment claim, stating:

Where a plaintiff has alleged a host of claims based

on discrete facts of discrimination in just one

count, we have noted that the plaintiff failed to

comply with [Federal] Rules [of Civil Procedure] 8

and 10.

The district court did not err in declining to

consider Palmer’s hostile work environment claim.

In his complaint, Palmer included only two counts:

“COUNT I DISABILITY DISCRIMINATION” and “COUNT II

RETALIATION.” Even if those two counts contained

sufficient factual allegations on which to base a

plausible hostile work environment claim, . . .

Palmer did not articulate that he was making that

claim. He should have asserted such a claim and

done so in a separate count “so that [Albertson’s

could] discern what he is claiming and frame a

responsive pleading.” . . . In any event, even

accepting all of his factual allegations as true,

Palmer has failed to state a hostile work

environment or harassment claim under the ADA.

Palmer’s use of the words “harassed” in his

statement of facts and “hostile” in his disability

discrimination claim neither stated a plausible

claim for relief nor provided Albertson’s with

sufficient notice to defend against a harassment or

hostile work environment claim. His attempt to

raise such a claim in response to Albertson’s

motion for summary judgment came too late.

Id. at 889-90 (citations omitted); see also Hogancamp v. Cnty.

of Volusia, No. 6:18-cv-600-RBD-GJK, 2019 WL 11288567, at *12

n.29 (M.D. Fla. Apr. 1, 2019) (refusing to consider

allegations that Plaintiff was subjected to a hostile work

environment because Plaintiff did not include “a separate

claim for a hostile work environment”); Brantley v. CSX

Transp., Inc., No. 3:23-cv-1127-MMH-MCR, 2023 WL 6392690, at

*1 (M.D. Fla. Oct. 2, 2023) (“If Plaintiff intends to assert

retaliation or hostile work environment claims, he must set

forth those claims in separate counts and identify the

specific factual allegations on which each claim is based.”).

Therefore, the Court agrees with RTG and SEIDS that

hostile work environment was not sufficiently pled in

Williams’s complaint. Even so, the Court notes that, had

Williams sufficiently pled hostile work environment, the

claims would not have survived summary judgment.

“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 (citations 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 Williams’s hostile work environment

claims, Williams highlights: (1) Cook’s “Black People Time”

comment, (2) Cook’s references to employees at the Lakeland

distribution center as “Black mother. Black A. . . . black

lazy . . . [d]umb and stupid,” (3) Bennett’s statement about

changing the warehouse culture, relayed to Williams by Razon,

(4) Bennett’s statement about changing the culture in the

delivery department, also relayed to Williams by Razon, and

(5) Razon’s physical threats to Williams. (Williams Depo. at

184:12-24); (Doc. # 54 at 9-10).

As noted above, the Court will not attribute Razon’s

actions to SEIDS, as he was an RTG employee. (Id. at 105:7-

17). The remaining comments do not establish that a hostile

work environment existed.

Again, Bennett’s comments about changing the culture of

the warehouse and the delivery department were not stated

directly to Williams and are not race-based in nature.

Therefore, they cannot independently establish that Williams

was subject to a hostile work environment.

Cook’s “Black People Time” comment and other comments

about Black employees are offensive racial comments. However,

even considered in conjunction with Bennett’s comments, they

are not as severe or pervasive as conduct that has survived

summary judgment in other courts. See, e.g., Hedgeman v.

Austal, U.S.A., L.L.C., 866 F. Supp. 2d 1351, 1364 (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’”). Additionally, while the “Black People

Time” comment was directed at Williams (Williams Depo. at

129:15-19), the other comments were made to him primarily in

reference to other employees. See (Id. at 186:21-187:5)

(“[S]he said it in front of me because I guess she wanted me

to hear her talk that way, but she couldn’t talk to me that

way because I’m professional. . . . [S]he talked to me like

that when she first got there and I let her know, I’m not

going to be talked to like that.”).

Therefore, had Williams properly pled hostile work

environment claims, RTG and SEIDS would still have been

granted summary judgment.

Summary judgment is granted to SEIDS on Counts I-VI.

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.

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

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

Delivery Services, Ince. and against Plaintiff Tony

Williams on all counts of the complaint.

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

pending deadlines and CLOSE the case.

DONE and ORDERED in Chambers in Tampa, Florida, this

29th day of January, 2024.

VIRGINIA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE

39