# Jackson v. City of Cape Coral

> District Court, M.D. Florida · February 1, 2024

URL: https://www.frixlaw.com/law-library/cases/10115027

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** February 1, 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/10115027

## How later opinions describe it (automated extraction)

- 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”
- stating that Title VII adopted the affirmative defenses of the EPA
- stating that one of the ways “Title VII differs from the EPA” is that “plaintiff must prove discriminatory intent” under Title VII

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10115027. Public record. Not legal advice.