Jackson v. City of Cape Coral

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

BRIDGET JACKSON, an

individual,

Plaintiff,

v. Case No: 2:22-cv-408-JES-NPM

CITY OF CAPE CORAL,

Defendant.

OPINION AND ORDER

This matter comes before the Court on the City of Cape

Coral’s (the Defendant or the City) Motion for Summary Judgment

(Doc. #28) filed on October 11, 2023. Bridget Jackson (the

Plaintiff or Jackson) filed Responses in Opposition (Docs. ##29-

30) on November 1, 2023, to which the Defendant filed a Reply

(Doc. #31). For the reasons set forth below, the motion is

granted.

I.

This is an employment discrimination case. Jackson is a

woman who alleges that her employer, the City, violated the Equal

Pay Act of 1964 (EPA), 29 U.S.C. § 206(d), and Title VII of the

Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e-2 et

seq., by paying her male counterpart a greater salary for

substantially equal work in substantially similar positions and

under similar working conditions. (Doc. #18.) The City denies

the allegations. (Doc. #19.) The undisputed material facts

(hereinafter the “summary judgment facts”) are as follows:

The City hired Jackson on October 15, 2001. In 2017, Jackson

was promoted to City Ordinance Inspector (COI) and began to earn

at a 13 pay grade. Well inspections were a listed duty and

responsibility of COIs, and the City’s previous COI, Wilber

Fischer (Fischer), had conducted all well inspections for the

City until his 2017 retirement. “As soon as [Jackson] was hired

into the [COI] position” she informed the City she was

uncomfortable conducting well inspections. Jackson Dep. 51:6-7.

The inspection of wells therefore fell exclusively on David

Miller (Miller), a Well Field Maintenance Mechanic for another

department within the City. Miller earned at a 15 pay grade.

In May 2018, the City created a new position titled

‘Construction Inspector’ (CI) within the department and placed

Miller in that position. Since CI’s were compensated at a 15 pay

grade, Miller’s salary remained unchanged. Miller continued to

inspect all the wells. In October 2018, Miller was promoted to

Senior Construction Inspector (SCI) at pay grade 19, and he

continued to inspect the wells.

In the spring of 2019, Jackson and another COI contacted

the City’s human resources department, expressing their belief

that they should be classified as CI’s instead of COI’s. The

City engaged an outside consulting firm to conduct a compensation

and position review. The consulting firm recommended COI’s be

compensated at a 14 pay grade instead of 13, and the City accepted

the recommendation.

In January 2020, the City simplified the inspection method

for wells. Shortly thereafter Jackson began to inspect wells;

she was promoted to CI, and her pay grade increased from 14 to

15.

Jackson again questioned her job duties and rate of pay,

and the City performed a desk audit and again engaged the outside

consulting firm. The desk audit concluded that Jackson, Miller,

and another CI were “doing the same job.” (Doc. #29, Ex. 9, p.

5.)1 The consulting firm recommended that COIs be compensated at

a 15 pay grade and that the SCIs (Miller) and the CIs (including

Jackson) be reclassified as COIs.

The City accepted and implemented the recommendations on

May 1, 2021. Jackson was reclassified from a CI to COI, but her

salary remained unchanged since both positions were at a 15 pay

grade. Similarly, Miller was reclassified from SCI to COI, and

his salary pay grade 19 remained unchanged—but for a different

1 Jackson labeled this exhibit as “Exhibit 8.” However, the

exhibit appears on the Court’s CM/ECF system as Exhibit 9. The

Court will cite each exhibit herein by the numerical number

assigned to it by the Court's CM/ECF system.

reason. Despite COI’s being compensated at a 15 pay grade, Miller

kept his pay grade at 19 pursuant to The City’s Code of Ordinance,

which provides:

(c) An employee’s rate of pay after reclassification

shall not be less than the minimum nor more than the

maximum of his or her new pay grade. However, in the

event a reclassified employee’s rate of pay in his or

her former pay grade was greater than the maximum of

his or her new pay grade, the employee’s rate of pay

shall remain the same as in the former pay grade. The

rate of pay for those employees shall remain fixed at

that pay rate until pay range adjustments cause the

established pay range maximum to exceed the employee’s

rate of pay.

Cline Decl. ¶ 15 (quoting Cape Coral, Fla., Code § 2-

37.8(c)(hereinafter “the Ordinance”)). Jackson remains employed

by the City as a COI at pay grade 15.

II.

Summary judgment is appropriate only when the Court is

satisfied that “there is no genuine dispute as to any material

fact and that the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “An issue of fact is ‘genuine’ if

the record taken as a whole could lead a rational trier of fact

to find for the nonmoving party.” Baby Buddies, Inc. v. Toys

“R” Us, Inc., 611 F.3d 1308, 1314 (11th Cir. 2010). A fact is

“material” if it may affect the outcome of the suit under

governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). “A court must decide ‘whether the evidence presents

a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a

matter of law.’” Hickson Corp. v. N. Crossarm Co., Inc., 357

F.3d 1256, 1260 (11th Cir. 2004)(quoting Anderson, 477 U.S. at

251).

In ruling on a motion for summary judgment, the Court views

all evidence and draws all reasonable inferences in favor of the

non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007);

Tana v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010). However,

“if reasonable minds might differ on the inferences arising from

undisputed facts, then the court should deny summary judgment.”

St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198

F.3d 815, 819 (11th Cir. 1999)(quoting Warrior Tombigbee Transp.

Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-97 (11th Cir.

1983)(finding summary judgment “may be inappropriate even where

the parties agree on the basic facts, but disagree about the

factual inferences that should be drawn from these facts”)). “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, then the court

should not grant summary judgment.” Allen v. Bd. of Pub. Educ.,

495 F.3d 1306, 1315 (11th Cir. 2007).

The City asserts that “[t]here exists no genuine issue as

to any material fact” and that it is entitled to summary judgment

in its favor. (Doc. #28, p. 2.) Jackson sees it differently.

III.

The Court will address three procedural disputes between

the parties before addressing their substantive arguments.

First, the City requests that either or both of Jackson’s

Responses to the summary judgment motion be stricken for

violating this Court’s Local Rules and the Case Management Order.

(Doc. #31, pp. 1-2.) Jackson filed two separate Responses

totaling 35 pages. (See Docs. ##29-30.) The first is Jackson’s

memorandum of law in opposition to the Motion (Doc. #29), and

the second is Jackson’s response to the City’s statement of facts

“designed solely to respond to Defendant’s Statement by

identifying which of the factual grounds [from] Defendant’s

motion are disputed.” (Doc. #30, pp. 1-2.)

Jackson’s Responses run afoul of this Court’s Case

Management Order, which states that “[a]n opposition to a motion

for summary judgment must include a memorandum of law and a

specifically captioned section titled, ‘Response to Statement of

Material Facts’ in a single document not to exceed 20 pages in

length.” (Doc. #17, p. 5)(emphasis added.) Jackson’s Responses

also violate this Court’s Local Rules since the Responses are

“longer than twenty pages inclusive of all parts.” M.D. Fla. R.

3.01(b).

The City’s Reply also violates the Local Rules. The Reply

was nine pages (see Doc. #31) when a “reply must not exceed seven

pages inclusive of all parts.” M.D. Fla. R. 3.01(d); (see also

Doc. #17, p. 5.)

Neither party requested leave to file an oversized brief.

See M.D. Fla. R. 3.01. Rather than strike the offending documents

or portions thereof, the Court will exercise its discretion and

consider the briefs in the interest of judicial efficiency. See

Equity Lifestyle Properties, Inc. v. Fla. Mowing And Landscape

Serv., Inc., 556 F.3d 1232, 1240 (11th Cir. 2009)(“A district

court has inherent authority to manage its own docket ‘so as to

achieve the orderly and expeditious disposition of cases.’”

(quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991))).

Second, Jackson stated in her deposition she had no evidence

that her comparator made more money because of his gender. (See

Doc. #28, pp. 11-12.) The City argues that this resolves the

case, and the Court need not go further. However, summary

judgment does not simply test a party’s understanding of the

record, but requires the court to make its determination after

a review of the entire record. That determination has not yet

been made in this case, so the Court must reject the City’s

invitation to stop.

Lastly, Jackson argues summary judgment is improper

“because Defendant’s Motion fails to address Plaintiff’s

contention that she was discriminated against by Defendant on

the basis of her sex and gender when the City unfairly and

unequally assigned overtime (or overtime pay) to Mr. David

Miller.” (Doc. #29, p. 3.) The City counters that Jackson never

alleged overtime improprieties, and is now attempting to “change,

modify, or advance a new theory of claimed discrimination in

response to the City’s motion for summary judgment.” (Doc. #31,

p. 4.) Jackson’s Amended Complaint (Doc. # 18-1) does not assert

any claim relating to overtime assignments or pay, but alleges

a salary discrepancy (Doc. #18-1, ¶¶ 4, 20) and “additional

benefits, including more retirement pension benefits (which are

based on salary).” (Id. at ¶¶27-28.). New matters such as

overtime cannot now be asserted to defend against summary

judgment.

V.

A. Equal Pay Act

Count I alleges a violation of the Equal Pay Act, asserting

that Jackson’s male counterparts were paid more and received

additional benefits for doing the same work as plaintiff. (Doc.

# 18-1, ¶¶ 23-30.)

“The Equal Pay Act is divided into two parts: a definition

of the violation, followed by four affirmative defenses.”

Washington Cnty. v. Gunther, 452 U.S. 161, 169 (1981). An

employer violates the EPA when it discriminates “between

employees on the basis of sex by paying wages to employees in

such establishment at a rate less than the rate at which he pays

wages to employees of the opposite sex in such establishment for

equal work on jobs the performance of which requires equal skill,

effort, and responsibility, and which are performed under similar

working conditions . . . .” 29 U.S.C. § 206(d)(1). The four

affirmative defenses concern whether “such payment is made

pursuant to (i) a seniority system; (ii) a merit system; (iii)

a system which measures earnings by quantity or quality of

production; or (iv) a differential based on any other factor

other than sex.” Id.

Courts analyze EPA claims under a three-step burden-

shifting framework. First, the plaintiff bears the burden of

establishing a prima facie case. “A plaintiff establishes a prima

facie case under the Equal Pay Act if she shows that her employer

paid ‘different wages to employees of opposite sexes for equal

work on jobs requiring equal skill, effort, and responsibility,

and which [we]re performed under similar working conditions.’”

Bowen v. Manheim Remarketing, Inc., 882 F.3d 1358, 1362 (11th

Cir. 2018)(alteration in the original)(quoting Irby v. Bittick,

44 F.3d 949, 954 (11th Cir. 1995)). Second, if a prima facie

case is shown, the burden shifts to the defendant to justify the

differential by establishing at least one of the four affirmative

defenses by a preponderance of the evidence. Steger v. Gen.

Elec. Co., 318 F.3d 1066, 1078 (11th Cir. 2003). Third, if the

defendant succeeds, the burden shifts back to the plaintiff to

show with affirmative evidence that the justifications are

pretextual. Schwartz v. Fla. Bd. of Regents, 954 F.2d 620, 623

(11th Cir. 1991). The Court evaluates all evidence proffered by

the plaintiff in the light most favorable to her case. Mulhall

v. Advance Sec., Inc., 19 F.3d 586, 591 (11th Cir. 1994).

(1) Jackson’s prima facie case

“A plaintiff establishes a prima facie case by comparing

the jobs held by the female and male employees, and by showing

that those jobs are substantially equal” with unequal pay.

Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1533

(11th Cir. 1992). “The standard for determining whether jobs are

equal in terms of skill, effort, and responsibility is high.”

Waters v. Turner, Wood & Smith Ins. Agency, Inc., 874 F.2d 797,

799 (11th Cir. 1989). “The prima facie case . . . focuses solely

on the primary duties of each job, not duties that are incidental

or insubstantial.” Miranda, 975 F.2d at 1533. “Although job

titles [and job descriptions] are entitled to some weight in

this evaluation, ‘the controlling factor under the Equal Pay Act

is job content’—the actual duties that the respective employees

are called upon to perform.” Id. (quoting Hodgson v. Behrens

Drug Co., 475 F.2d 1041, 1049 (5th Cir. 1973)). “[T]he skills

and qualifications actually needed to perform the jobs are

considered,” but not “the skills and qualifications of the

individual employees holding those jobs.” Id. Experience is

relevant as a defense, but irrelevant to the prima facie inquiry.

Id. at n.18; Mulhall, 19 F.3d at 592. Establishing a prima facie

case against just one employee of the opposite sex suffices.

Mitchell v. Jefferson Cnty. Bd. of Educ., 936 F.2d 539, 547 (11th

Cir. 1991).

Jackson succeeds in establishing a prima facie case of

gender discrimination under the EPA for some, but not all, of

the time-period she alleges. The proffered comparator is Miller.2

Jackson argues that “there is sufficient evidence available in

the record for a reasonable juror to conclude Plaintiff and Mr.

Miller occupy a similar job.” (Doc. #29, p. 11-12.) But this is

only true for some of the time-period, since Jackson’s and

Miller’s actual job content differed for some time. (See Doc.

#29, p. 6)(“It just so happens that Plaintiff used her skill set

to do mostly land use inspections and Mr. Miller used his skill

set to do well inspections, as directed and assigned by the

City.”). Jackson focuses on the job descriptions to assert the

jobs were substantially equal, but this is an improper focus:

As to the job descriptions, the Trial Judge was

clearly correct to place her reliance elsewhere. The

controlling factor under the Equal Pay Act is job

content— the actual duties that the respective

employees are called upon to perform. Job descriptions

2 See Gosa v. Bryce Hosp., 780 F.2d 917, 918 (11th Cir.

1986)(“A male to whom a female plaintiff is compared for purposes

of determining whether a wage discrepancy exists for Equal Pay

Act purposes is referred to as a ‘comparator.’”).

prepared by the employer may or may not fairly describe

job content.

Hodgson, 436 F.2d at 724 (citing 29 C.F.R. § 800.121 (1970)).3

The actual duties significantly differed for much of the

time. It was not until the City simplified the well inspection

process in January 2020 that Jackson began to inspect wells

alongside Miller. (Doc. #30, p. 4)(“[I]t is not disputed that

well inspections were exclusively performed by Mr. David Miller

from the time the City chose to move him to the Building Division

until the City choose [sic] to change the well inspection

procedure . . . .”); (Id., p. 6)(“[I]t is undisputed that The

City did begin to modify the inspection method for wells to make

it a less time consuming [sic] around January 2020 . . . .”).

Thus, Jackson and Miller did not have substantially equal jobs

until January 2020 when they began to perform jobs with the same

actual job content. Miller is an inappropriate comparator for

EPA purposes before that date, and no proper comparator is

identified for the pre-January 2020 time period.

Miller’s email, the desk audit, and the consulting firm’s

letter substantiate this finding since all three came after

3 “Decisions of the former Fifth Circuit issued before

October 1, 1981 constitute binding precedent in the Eleventh

Circuit.” United States v. Bird, 79 F.4th 1344, 1353 n.4 (11th

Cir. 2023)(citing Bonner v. City of Prichard, 661 F.2d 1206,

1207 (11th Cir. 1981) (en banc)).

January 2020. Thus, the desk audit concluded they were “doing

the same job” (Doc. #29, Ex. 9, p. 5) and the consulting firm

found the jobs had ”the same essential duties” and recommended

they “be reclassified as [COI’s] in grade 15.” (Doc. #29, Ex. 8,

p. 1.) Additionally, the desk audit states that an Erosion

Control certification was required for the CI and SCI roles.

(Doc. #29, Ex. 9, p. 1.) Jackson testified in deposition that

she obtained that certification in 2019, Jackson Dep. 11:13, in

hopes of “obtain[ing] a higher paid position,” namely the SCI

role. Id. at 14:4-9. Since Miller’s SCI job required greater

qualifications than Jackson’s COI job, which she occupied in all

of 2019, it follows they were not substantially equal jobs. See

Miranda, 975 F.2d at 1533.

Jackson’s reliance on Miller’s email is misplaced for two

reasons. First, Jackson offers the email to show that “Mr. Miller

stated in an email to the City that he and Ms. Jackson ‘do

virtually the same job.’” (Doc. #29, p. 7)(quoting (Doc. #29,

Ex. 10.)) But Jackson takes the quoted language out of context.

The full email reads as follows:

Lisa, I believe I understand what this is really all

about. Someone believes they should be a senior

construction inspector because they do virtually the

same job. I personally agree, if they have the

qualifications they should have the chance to become

a senior as well. Look forward to having your company

tomorrow!

(Doc. #29, Ex. 10.) A reading of the full sentence does not state

that Miller believes “someone” does the same job.

Second, even if Miller’s email had been before January 2020,

and could be interpreted as Jackson asserts, Miller is the

comparator, not the alleged decisionmaker. See Steger, 318 F.3d

at 1079 (finding the district court correctly precluded

statements from non-decisionmakers as irrelevant and unfairly

prejudicial since ‘statements by non-decisionmakers, or

statements by decisionmakers unrelated to the decisional

process’ at issue will not satisfy the employee's burden.”

(quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989)

(O'Connor, J., concurring)).

For these reasons, Jackson has established a prima facia

case of discrimination under the EPA, but only from January 2020

onward.

(2) Affirmative Defenses

Since plaintiff establishes a prima facie case under the

EPA, she simultaneously “establishes a form of ‘strict

liability’” that may only be rebutted by one of the affirmative

defenses under the Act. Meeks v. Computer Assocs. Int'l, 15 F.3d

1013, 1019 (11th Cir. 1994)(quoting Miranda, 975 F.2d at 1533).

To do so, the employer bears a heavy burden of persuasion that

can only be satisfied if it proves by a preponderance of the

evidence that “the factor of sex provided no basis for the wage

differential.” Steger, 318 F.3d at 1078(quoting Irby, 44 F.3d at

954). The City offers two main defenses: that Miller’s salary

was forcibly red circled4 due to the Ordinance, and that Miller

had superior well inspection experience. (Doc. #28, p. 17.)

Jackson seemingly concedes these explanations suffice and that

the burden returns to her. (Doc. #29, p. 8)(“The Defendant has

proffered reasons that the pay discrepancy is based on

affirmative defenses under the EPA, so the burden shifts back to

the Plaintiff . . . .”) The Court agrees that the City has met

its burden and the burden of proof returns to Jackson.

The “based on any other factor other than sex” affirmative

defense is a “broad” and “catch-all exception” under the EPA.

Corning Glass Works v. Brennan, 417 U.S. 188, 198, 204 (1974).

Under it, courts “may consider factors such as the ‘unique

characteristics of the same job; . . . an individual's

experience, training or ability; or . . . special exigent

circumstances connected with the business.’” Steger, 318 F.3d at

1078 (alteration in the original)(quoting Irby, 44 F.3d at 955).

Congress recognized legitimate red circling as a special exigent

circumstance, see Glenn v. Gen. Motors Corp., 841 F.2d 1567,

1571 (11th Cir. 1988), so it is accepted as an affirmative

4 “The term ‘red circle’ describes ‘certain unusual, higher

than normal, wage rates which are maintained for many reasons.’”

Mulhall, 19 F.3d at 595 (quoting Gosa, 780 F.2d at 918).

defense. Mulhall, 19 F.3d at 596 (“When a claimant identifies a

legitimately red circled employee as a comparator, the employer

has an affirmative defense.”).

It is undisputed that Miller had more than two years of

experience inspecting wells by the time Jackson inspected her

first well in January 2020. Since Miller possessed superior

experience, the City offers a legitimate nondiscriminatory

reason and affirmative defense under the EPA. See Irby, 44 F. 3d

at 956. It is also undisputed that the Ordinance was in effect

when the City reclassified Jackson and Miller to the same

position. This red circling is a legitimate nondiscriminatory

reason and affirmative defense under the EPA. See Mulhall, 19

F.3d at 596. The City has proven by a preponderance of the

evidence that the pay differential from January 2020 onward was

based on factors other than sex. The burden therefore returns to

Jackson to show pretext.

(3) Pretext

“To rebut an employer's legitimate nondiscriminatory

reasons for its adverse action, the employee must produce

evidence which directly establishes discrimination or which

permits the jury to reasonably disbelieve the employer's

proffered reason.” Steger, 318 F.3d at 1079 (citing Ross v.

Rhodes Furniture, Inc., 146 F.3d 1286, 1290 (11th Cir. 1998)).

“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.’” Fernandez v. Trees, Inc., 961 F.3d

1148, 1156 (11th Cir. 2020)(quoting Wilson v. B/E Aerospace,

Inc., 376 F.3d 1079, 1086 (11th Cir. 2004)). “[O]nly the most

blatant remarks, whose intent could mean nothing other than to

discriminate on the basis of some impermissible factor constitute

direct evidence of discrimination.” Id. (alteration in the

original).5

The second method of rebutting an employer’s legitimate

nondiscriminatory reasons depends on “whether the plaintiff has

demonstrated 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.”. Ezell v. Wynn, 802 F.3d

1217, 1227 (11th Cir. 2015)(quoting Jackson v. State of Ala.

State Tenure Comm'n, 405 F.3d 1276, 1289 (11th Cir.2005)).

Plaintiff “must meet each proffered reason ‘head on and rebut

it, and [she] cannot succeed by simply quarreling with the wisdom

5See also Harris v. Monroe Cnty. Pub. Libr. Bd. of Trustees,

No. 22-11236, 2023 WL 6866602, at *5 n.11 (11th Cir. Oct. 18,

2023); Kelley v. Howden, No. 21-13573, 2022 WL 17259720, at *4

(11th Cir. Nov. 29, 2022), cert. denied, 143 S. Ct. 2497, 216 L.

Ed. 2d 456 (2023)).

of that reason.’” Furcron v. Mail Centers Plus, LLC, 843 F.3d

1295, 1313–14 (11th Cir. 2016)(quoting Chapman v. AI Transp.,

229 F.3d 1012, 1030 (11th Cir. 2000)). “Further, ‘the inquiry

into pretext centers on the employer's beliefs, not the

employee's beliefs,’ and ‘[a] plaintiff is not allowed to

[merely] recast an employer's proffered nondiscriminatory

reasons or substitute [her] business judgment for that of the

employer.’” Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1313 (11th

Cir. 2018)(alterations in the original)(quoting Alvarez v. Royal

Atl. Developers, Inc., 610 F.3d 1253, 1265-66 (11th Cir. 2010)).

Jackson does not directly rebut any of the City’s proffered

reasons. Jackson’s responsive memorandum does not address the

Ordinance or red circling, much less rebut them. (See Doc. #29.)

Rather, Jackson curtly states that “the [O]rdinance [is] not

material to this case” since it “was written and passed after

the City chose not to fully and comprehensively train Ms. Jackson

on how to perform well inspections or change the method of well

inspections, as it would do in the future.” (Doc. #30, p. 11.)

The Ordinance was in effect when the triggering event (Miller’s

reclassification) occurred, and Jackson makes no attempt to

explain why it becomes immaterial simply because it did not exist

at some earlier point.

Jackson’s only other mention of the Ordinance is that the

“Ordinance . . . speaks for itself.” (Id., p. 9.) The Court

agrees. It’s clear and unambiguous terms say that “in the event

a reclassified employee’s rate of pay in his or her former pay

grade was greater than the maximum of his or her new pay grade,

the employee’s rate of pay shall remain the same as in the former

pay grade.” Cline Decl. ¶ 15 (quoting Cape Coral, Fla., Code §

2-37.8(c)). Jackson produces no evidence or argument that could

lead a reasonable jury to disbelieve that it was the Ordinance

that caused Miller’s greater pay grade to remain the same after

his reclassification.

Jackson fairs no better regarding the City’s proffered

reason of Miller’s greater experience inspecting wells. “The

defense of experience . . . is capable of being rebutted; for

example, the plaintiff could show that he or she had equal or

more experience of the same type. . . . to gain experience one

must necessarily spend time in an activity.” Irby, 44 F.3d at

956. Jackson asserts that “Mr. Miller’s promotion was unsupported

since he did not have more experience than Plaintiff and did not

have greater seniority than Plaintiff.” (Doc. #29, p. 8.) Yet it

is undisputed that Jackson began inspecting wells in January

2020, while Miller began inspecting wells in 2017. (See Doc.

#30, p. 4). Jackson’s conclusory statement is insufficient to

rebut the City’s well inspection experience justification. Thus,

Jackson exposes no weakness, implausibility, inconsistency,

incoherency, or contradiction in the City’s well inspection

experience justification.

Jackson also attempts to show pretext by stating that gender

discrimination is evident because: (1) the City did not

sufficiently train her; (2) Miller was unqualified for his

promotion; (3) “the City changed the well inspection procedure

for Mr. Miller[] but not for [her];” and (4) Miller received

“preferential treatment” as evident from him having “his own

office separate from” female coworkers along with “more frequent

overtime assignments,” excusals from meetings, and his refusal

to partake in certain trainings. (Doc. #29, pp. 8-10.)

Jackson’s statements, by themselves, fail to establish that

the City’s identified reasons were pretextual. “[C]onclusory

allegations of discrimination, without more, are not sufficient

to raise an inference of pretext or intentional discrimination

where [an employer] has offered . . . extensive evidence of

legitimate, non-discriminatory reasons for its actions.” Carter

v. City of Miami, 870 F.2d 578, 585 (11th Cir. 1989)(alterations

in the original)(quoting Young v. General Foods Corp., 840 F.2d

825, 830 (11th Cir. 1988)). Even if true, ineffective training,

accensions, inspection procedures, office placement, and

Jackson’s other allegations do not undermine the effect of either

the Ordinance or Miller’s experience. At most, they might call

into question the judgment of the employer, but

antidiscrimination employment statutes were “not designed to

make federal courts ‘sit as a super-personnel department that

reexamines an entity's business decisions.’” Denney v. City of

Albany, 247 F.3d 1172, 1188 (11th Cir. 2001)(quoting Elrod v.

Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.1991)). “We

are not in the business of adjudging whether employment decisions

are prudent or fair. Instead, our sole concern is whether

unlawful discriminatory animus motivates a challenged employment

decision.” Rojas v. Fla., 285 F.3d 1339, 1342 (11th Cir.

2002)(quoting Damon v. Fleming Supermarkets of Fla., Inc., 196

F.3d 1354, 1361 (11th Cir.1999). In other words, “[w]e do not

ask whether the employer selected the ‘most’ qualified candidate,

but only whether it selected the candidate based on an unlawful

motive.” Denney, 247 F.3d at 1188. To answer that question, “our

inquiry is limited to whether the employer gave an honest

explanation of its behavior.” Chapman, 229 F.3d at 1030 (11th

Cir. 2000)(quoting Elrod, 939 F.2d at 1470 (11th Cir.1991)).

Jackson failed to carry her burden when she offered conclusory

allegations in lieu of any evidence that could “permit a

reasonable factfinder to conclude that the employer's proffered

‘legitimate reasons were not what actually motivated its

conduct.’” Combs v. Plantation Patterns, 106 F.3d 1519, 1538

(11th Cir. 1997)(quoting Cooper–Houston v. Southern Ry. Co., 37

F.3d 603, 605 (11th Cir.1994)).

Jackson asserts that at the very least, these allegations

create “a genuine issue of material fact, which precludes

granting Defendant’s Motion for Summary Judgment.” (Id. at p.

8.) That is not so either:

[I]n considering whether a plaintiff has presented a

jury question on pretext, we have required that the

plaintiff point to facts which, if true, would present

a basis for the disbelief of the defendant's overall

justification. . . . The plaintiff must call into

question the veracity of the defendant's ultimate

justification itself.

Isenbergh v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436,

444 (11th Cir. 1996). The summary judgment facts are undisputed,

and Jackson cannot avoid summary judgment with unsubstantiated

allegations. “Federal Rule of Civil Procedure 56 requires that

a party defending against a motion for summary judgment respond

with affidavits, depositions, or other evidence to demonstrate

that there are material facts that must be presented to a jury

for resolution.” Miranda, 975 F.2d at 1533. “‘[B]ecause the

plaintiff bears the burden of establishing pretext, [s]he must

present significantly probative evidence on the issue to avoid

summary judgment.’” Id. Put differently, “a plaintiff is entitled

to survive summary judgment, and judgment as a matter of law, if

there is sufficient evidence to demonstrate the existence of a

genuine issue of fact as to the truth of each of the employer's

proffered reasons for its challenged action.”

Combs, 106 F.3d at 1529. Jackson fails to carry her burden since

she has proffered only unrelated and unsubstantiated conclusory

allegations instead of affirmative evidence directly challenging

the veracity of the City’s stated justifications.

Jackson has established a prima facie case for only a

portion of the time-period; the City has shown justifications

for the pay differential for the relevant time period; and these

justifications have not been shown to be pretextual. The City

is entitled to summary judgment as to the EPA count.

B. Title VII Claim

Jackson asserts in Count II of the Amended Complaint that

the pay differential also violated Title VII. “Title VII and

the Equal Pay Act exist side by side in the effort to rid the

workforce of gender-based discrimination.” Miranda, 975 F.2d at

1527.

“Title VII, in pertinent part, makes it unlawful for an

employer to ‘discriminate against any individual with respect to

h[er] compensation . . . because of such individual's . . .

sex.’”

Ledbetter v. Goodyear Tire & Rubber Co., 421 F.3d 1169, 1185

(11th Cir. 2005), aff'd, 550 U.S. 618 (2007), superseded by

statute on other grounds, Lilly Ledbetter Fair Pay Act of 2009,

Pub.L. 111–2, as stated in Davis v. Bombardier Transp. Holdings

(USA) Inc., 794 F.3d 266, 269-70 (2d Cir. 2015)(quoting 42 U.S.C.

§ 2000e–2(a)(1)). To succeed in a Title VII claim, an employee

“must show ‘through either direct evidence or circumstantial

evidence’ that her employer acted with discriminatory intent.”

Jefferson v. Sewon Am., Inc., 891 F.3d 911, 921 (11th Cir.

2018)(quoting Wilson, 376 F.3d at 1085). The same definition of

direct evidence as discussed within the EPA applies. See supra

Section III.A.3.

“If the plaintiff presents direct evidence that the employer

acted with discriminatory motive and the trier of fact believes

it, then the employer can avoid liability only if he or she

satisfies the trier of fact by a preponderance of the evidence

that the same employment decision would have been reached in the

absence of the discriminatory motive.” Burns v. Gadsden State

Cmty. Coll., 908 F.2d 1512, 1518 (11th Cir. 1990) “In contrast,

circumstantial evidence only ‘suggests, but does not prove, a

discriminatory motive,’ and may be evaluated under the burden-

shifting test established in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Jefferson,

891 F.3d at 921–22 (quoting Wilson, 376 F.3d at 1086). Jackson

advances her argument exclusively on circumstantial evidence,

(see Doc. #29, p.16), so the McDonnell Douglas framework applies.

“Under this framework, the plaintiff initially must

establish a prima facie case of discrimination.” E.E.O.C. v.

Joe's Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002).

“The burden then shifts to the employer to rebut this presumption

by producing evidence that its action was taken for some

legitimate, non-discriminatory reason.” Id. “If it meets that

burden, the presumption of intentional discrimination drops out

of the case and [the plaintiff] must demonstrate that [the

employer]’s ‘proffered reason was merely a pretext for unlawful

discrimination, an obligation that merges with the plaintiff's

ultimate burden of persuading the factfinder that [he] has been

the victim of intentional discrimination.’” Ossmann v. Meredith

Corp., 82 F.4th 1007, 1014 (11th Cir. 2023)(cleaned up)(quoting

Lewis v. City of Union City, 918 F.3d 1213, 1220–21 (11th Cir.

2019)).

While they share some overlap, “there is a significant

difference between Title VII and the EPA as to both elements and

burdens of proof.” Meeks, 15 F.3d at 1019. One such difference

is that “[a] plaintiff suing under the Equal Pay Act must meet

the fairly strict standard of proving that she performed

substantially similar work for less pay,” but “there is a relaxed

standard of similarity between male and female-occupied jobs”

under Title VII. Miranda, 975 F.2d at 1526. Additionally, if

successful in “establishing a prima facie case, the plaintiff in

a Title VII action creates [only] a rebuttable ‘presumption that

the employer unlawfully discriminated against’ him”— not a form

of strict liability like the EPA. U.S. Postal Serv. Bd. of

Governors v. Aikens, 460 U.S. 711, 714 (1983)(quoting Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 254

(1981)). “Under Title VII, the risk of nonpersuasion always

remains with the plaintiff,” Meeks, 15 F.3d at 1019, unlike the

EPA where the burden of persuasion falls on the defendant to

establish a justification. Mulhall, 19 F.3d at 592 n.12. “Once

that justification is offered [under Title VII], the presumption

of discrimination falls away and the plaintiff tries to show not

only that the employer's justification was pretextual, but that

the real reason for the employment action was discrimination.”

Tynes v. Fla. Dep't of Juv. Just., 88 F.4th 939, 944 (11th Cir.

2023); see also Mulhall, 19 F.3d at 597 (stating that one of the

ways “Title VII differs from the EPA” is that “plaintiff must

prove discriminatory intent” under Title VII).

(1) Jackson’s prima facie case

“The plaintiff establishes a prima facie case of sex

discrimination under Title VII by demonstrating that she is

female and that the job she occupied was similar to higher paying

jobs occupied by males.” Miranda, 975 F.2d at 1529. Specifically,

“plaintiff must show that she and her comparators are ‘similarly

situated in all material respects.’” Lewis, 918 F.3d at 1224.

This does not require plaintiff to prove “that she and her

comparators are identical save for their” gender, or that they

have “precisely the same title. Nor will minor differences in

job function disqualify a would-be comparator.” Id. at 1227

(internal citation omitted). But a plaintiff cannot establish a

Title VII prima facie case against comparator “employees who are

differently situated in ‘material respects’—e.g., who engaged in

different conduct, who were subject to different policies, or

who have different work histories.” Id. Plaintiff must prove her

prima facie case by a preponderance of the evidence. Miranda,

975 F. 2d at 1528.

Jackson has already made a prima facie case under the EPA

from January 2020 onward, and the Court finds the same evidence

establishes a prima facie case under Title VII for those same

dates. Mulhall, 19 F.3d at 598 (“Clearly, if plaintiff makes a

prima facie case under the EPA, she simultaneously establishes

facts necessary to go forward on a Title VII claim.” (citing

EEOC v. White & Sons Enterps., 881 F.2d 1006, 1008, 1010 (11th

Cir. 1989)). The question is whether Jackson has made a prima

facie case under Title VII’s less stringent standard for the

time-period excluded from her EPA prima facie claim. The Court

finds she has not.

Even under Title VII’s less stringent standard, Jackson

still has not made a prima facie case other than from January

2020 onward. While “disparate pay is an adverse employment

action under Title VII,” Bowen, 882 F.3d at 1364, “[t]reating

different cases differently is not discriminatory, let alone

intentionally so.” Lewis, 918 F.3d at 1222–23. It is undisputed

that when Miller began inspecting wells in 2017, that was solely

his responsibility, and no other person inspected wells for the

City. It is also undisputed that it was not until January 2020

that Jackson began to inspect wells alongside Miller. Given that

Jackson and her comparator had no overlap in job functions before

January 2020, it cannot be said they shared only “minor

differences in job function.” Lewis, 918 F.3d at 1227. Rather,

they were “differently situated in ‘material respects’—e.g., who

engaged in different conduct . . . .” Id. Jackson has a Title

VII prima facie case from January 2020 onward but not before.

(2) Employer Justifications

“[E]stablishing a prima facie case of discrimination

entitles the plaintiff to judgment—to victory—if the employer

either can't, won't, or doesn't provide a nondiscriminatory

explanation for its actions.” Id. at 1222. “Defendant's burden

of production in rebutting the prima facie case is ‘exceedingly

light.’” Miranda, 975 F.2d at 1529 (quoting Perryman v. Johnson

Products, Inc., 698 F.2d 1138, 1142 (11th Cir.1983)).

“[D]efendant must merely proffer non-gender based reasons, not

prove them.” Meeks, 15 F.3d at 1019 (citing Miranda, 975 F.2d at

1529). “[A]ll that matters is that the employer advance an

explanation for its action that is not discriminatory in nature.”

Schoenfeld v. Babbitt, 168 F.3d 1257, 1269 (11th Cir. 1999).

The City offers the same justifications: The Ordinance and

Miller’s superior well inspection experience. (See Doc. #28, p.

20.) See Miranda, 975 F. 2d at 1528 (stating that Title VII

adopted the affirmative defenses of the EPA)(citing Gunther, 452

U.S. 161); see also Williamson v. Alabama Dep't of Mental Health

& Mental Retardation, No. 21-13274, 2023 WL 5287873, at *8 (11th

Cir. Aug. 17, 2023)(per curiam)(stating that “superior . . .

experience . . . is a legitimate, non-discriminatory reason”

under Title VII). Jackson concedes the City has met its burden

(Doc. #29, p. 12), and the Court agrees. The burden returns to

Jackson.

(3) Pretext

“A plaintiff may overcome the employer's asserted

legitimate reasons and avoid judgment as a matter of law ‘either

directly by persuading the court that a discriminatory reason

more likely motivated the employer or indirectly by showing that

the employer's proffered explanation is unworthy of credence.”

Taylor v. Runyon, 175 F.3d 861, 867 (11th Cir. 1999)(quoting

Combs, 106 F.3d at 1528). The inquiry follows that utilized by

the EPA, again turning on “whether the plaintiff has demonstrated

‘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.” Combs, 106 F.3d at

1538(quoting Sheridan v. E.I. DuPont De Nemours & Co., 100 F.3d

1061, 1072 (3d Cir. 1996). But a plaintiff’s Title VII burden to

demonstrate pretext mixes with her need to demonstrate

intentional discrimination. Ossmann, 82 F.4th at 1014.

“[O]nce the plaintiff introduces evidence sufficient to

permit the factfinder to disbelieve the employer's proffered

explanations, summary judgment is not appropriate, because

‘[i]ssues of fact and sufficiency of evidence are properly

reserved for the jury.’” Combs, 106 F.3d at 1530 (quoting

Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913 (11th

Cir.1993)). But “[i]f the plaintiff does not proffer sufficient

evidence to create a genuine issue of material fact regarding

whether each of the defendant employer's articulated reasons is

pretextual, the employer is entitled to summary judgment on the

plaintiff's claim.” Chapman, 229 F.3d at 1024–25.

Jackson offers the same arguments for Title VII pretext as

she did for EPA pretext. (See Doc. #29, pp. 12-13.) For the same

reasons, those arguments are insufficient under Title VII. See

supra Section III.A.3. They do not create a genuine issue of

material fact that could establish that the City’s justifications

are pretextual and much less that intentional discrimination

occurred. The City is entitled to summary judgment as to

Jackson’s Title VII claim.

Accordingly, it is now

ORDERED :

1. Defendant’s Motion for Summary Judgment (Doc. #28) is

GRANTED and judgment will be entered on both counts of the

Amended Complaint in favor of The City of Cape Coral and against

Bridget Jackson.

2. The Clerk shall enter judgment accordingly, terminate

all pending motions and deadlines as moot, and close the file.

DONE AND ORDERED at Fort Myers, Florida, this Ist

day of February, 2024.

az (OE

che ) AK Took

ade E. STEELE

SHYIOR UNITED STATES DISTRICT JUDGE

Copies: Counsel of record