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

> District Court, M.D. Florida · January 29, 2024

URL: https://www.frixlaw.com/law-library/cases/10115025

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** January 29, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10115025

## How later opinions describe it (automated extraction)

- stating that “[o]ne example of direct evidence would be a management memorandum saying, ‘Fire Earley — he is too old’”
- affirming a district court’s refusal to allow a plaintiff “to raise a new claim” in their response to a motion for summary judgment
- explaining that Title VII and Section 1981 discrimination claims have the same requirements of proof and use the same analytical framework

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10115025. Public record. Not legal advice.