Stafford v. Duval County Public Schools

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

SPENCER STAFFORD,

Plaintiff,

Case No. 3:21-cv-1007-TJC-LLL

v.

DUVAL COUNTY PUBLIC

SCHOOLS,

Defendant.

ORDER

Plaintiff Spencer Stafford is suing his employer, Duval County Public

Schools (“DCPS”), for race discrimination, retaliation, and a hostile work

environment, all under Title VII of the Civil Rights Act of 1964. Doc. 1. The

claims are based on Stafford’s concerns with the promotional process, failure to

promote him, poor interactions with his supervisor, and limited response to his

complaints about these concerns. Id. This case is before the Court on DCPS’s

Motion for Summary Judgment, Stafford’s opposition, and DCPS’s reply and all

exhibits thereto. Docs. 44, 45, and 46 respectively.

I. Facts1

A. Overview of Stafford’s Employment and the Promotional Process

Stafford, an African-American, started with DCPS in 1995 as a temporary

carpenter and became a permanent carpenter a year later. Doc. 1 ¶10; Doc. 44-

4 at 123. DCPS is part of the City of Jacksonville consolidated government and

therefore Jacksonville’s Civil Service and Personnel Rules and Regulations (“CS

Rules”) apply. 2 Doc. 44-15 ¶9. The CS Rules govern job description

development, and job descriptions include promotional requirements

determining eligibility for the job. Id. ¶10; Doc. 44-6 at 51-53.

When the number of qualified applicants exceeds the number of available

positions, the CS Rules require a promotional exam, with positions awarded

based on the highest passing score. Doc. 44-15 ¶12. If the number of openings

and qualified applicants is the same, however, no promotional exam is required.

Id. ¶11; Doc. 44-6 at 51-53 (citing CS Rule 4.03(1)(A)(3)).

Carpentry is one of several trade groups within Facilities Maintenance.

See id. ¶¶13-14. In 2014, a Carpenter Lead Worker position was created,

1 These facts are construed in the light most favorable to Stafford. In

some instances, citations include CM/ECF page references for clarity. Citations

to condensed deposition transcripts are to the deposition page number.

2 Stafford’s employment with DCPS is also governed by a Collective

Bargaining Agreement. See Doc. 44-4 at 125-26.

responsible to assist the Carpenter Foreperson, Carlos Hendrix.3 Doc. 44-15

¶¶5-6; see Doc. 44-4 at 124-25, 140. The promotional requirements for

Carpenter Lead were as follows: “[a]ll permanent employees who have served

for one (1) year in the class of Carpenter and meet the open requirements may

apply.” Doc. 44-4 Exh. 18. Of the seven carpenters taking the exam, Stafford

had the highest passing score and became Carpenter Lead. Id. at 124-25; Doc.

44-15 ¶6.

Other trade groups include Plumbing, Paint, HAR (Heat, Air, and

Refrigeration), and Utilities. See Doc. 44-15 ¶¶13-14; Doc. 44-6 Exh. 3. Each of

these trades has one or more foreperson4 roles and one or more lead roles to

assist a foreperson. See Doc. 44-6 at 32; Doc. 44-15 ¶14, Exh. D.5 Promotional

requirements for Plumbing, Paint, HAR, and Carpenter Foreperson allow

employees with one year of the appropriate trade experience, including as lead,

to apply.6 Doc. 44-15 ¶14, Exh. D; see also Doc. 44-6 at 32. For Utilities,

3 Once Hendrix became foreperson in 2007, he supervised all carpenters,

including Stafford. See Doc. 44-4 at 140; Doc. 44-11 ¶¶5-6; Doc. 44-9 ¶3. As

Carpenter Foreperson, Hendrix was on the committee that created the

promotional exam for the lead role. Doc. 44-15 ¶24; Doc. 44-1 at 32.

4 The Court references foreperson, but some documents use foreman.

5 Exhibit A to Doc. 44-15 is missing, causing later exhibits to be

mislabeled. The document referenced as Exhibit B is labeled as Exhibit A, etc.

Information in the missing Exhibit A is elsewhere in the record.

6 In 2016 the promotional requirements for Carpenter Foreperson were

changed to the following: “[a]ll permanent employees who have served for a

period of at least one (1) year in the class of Carpenter Lead Worker or

promotion to foreperson requires experience in the lead role, and often results

in an automatic promotion without an exam from lead to foreperson if the

foreperson role becomes available.7 See Doc. 44-15 ¶15; Doc. 44-6 at 18-19, 29-

30, 52-53.

In 2020, Hendrix announced plans to retire. Doc. 44-15 ¶8; Doc. 44-13

¶13. At that time, Stafford was the only African-American in a lead role for a

skilled trade. Doc. 1 ¶31. Anticipating there would be multiple qualified

applicants, a committee of six people was formed to develop the promotional

exam. See Doc. 44-15 ¶¶22-23. Four were from Facilities Maintenance: Hendrix;

Guy Kuhl, Maintenance III Station Supervisor; Nerissa Hawkins (a/k/a

Pospychala), Director of Maintenance; and Tarek Ghandour, Executive

Director, Plant Services.8 Doc. 44-15 ¶24; Doc. 44-5 at 4, 6; Doc. 44-13 ¶1; Doc.

Carpenter may apply.” Doc. 44-4 Exh. 19. The previous promotional

requirements did not reference experience in the Carpenter Lead position.

Compare id., with id. Exh. 1.

7 DCPS attributes the difference to the fact that Utilities involves more

than a single discipline and covers a broad variety of work. Experience as lead

provides exposure to the wide variety of tasks, which is necessary for the

foreperson role. Doc. 44-15 ¶16; see also Doc. 44-6 at 21-23, 30-31. Another

example of automatic promotion occurred in 2016, when the electronics lead,

Michael Costley, was promoted to Electronics Foreperson without an exam.

Doc. 44-6 at 12-16. Electronics was part of Facilities Maintenance until 2019.

Doc. 44-15 ¶17.

8 Hendrix reported to Kuhl. Doc. 44-13 ¶¶1-2. Kuhl and Pospychala both

reported to Ghandour. See id. ¶6; Doc. 44-9 ¶¶1-2; Doc. 44-5 at 7. Hendrix

participated on the committee as a subject matter expert and had primary

responsibility for math questions. Doc. 44-6 at 43; Doc. 44-1 at 28-31.

44-9 ¶1. The other two were Dawn Gaughan, District Staffing Supervisor; and

Melissa Brandt, Support Technician, Civil Service Staffing; both of Human

Resources.9 Doc. 44-8 ¶¶1,3; Doc. 44-15 ¶¶23-24, Exh. G.10

The promotional exam included an interview and written exam. Doc. 44-

15 ¶32. The written exam was the same for all applicants. Doc. 44-8 ¶8. The

interview had standard questions and a standard scoring matrix, with each

interview conducted by the same committee members.11 Id.; Doc. 44-9 ¶31; Doc.

44-11 ¶18; Doc. 44-13 ¶21.

The exam was given to five employees in December 2020, but no one

passed.12 Doc. 44-15 ¶32. Because no one passed, the committee was required

9 The level of participation in the committee for Brandt and Gaughan is

unclear. Brandt stated she participated on the exam development committee,

while Hendrix testified she only had responsibility to collect materials.

Compare Doc. 44-1 at 37, with Doc. 44-8 ¶¶2-9. Multiple declarants state the

committee had six members, including both Gaughan and Brandt, but

Pospychala testified Gaughan only participated once to cover for Brandt.

Compare Doc. 44-8 ¶3; Doc. 44-9 ¶21; and Doc. 44-13 ¶16; with Doc. 44-5 at 12-

14. Resolving any issue of participation for Gaughan or Brandt is not necessary

for the Court’s ruling.

10 As noted supra, the declaration references the email as Exhibit H, but

it is labeled Exhibit G.

11 The interview had seven questions and addressed topics such as

identifying general safety rules, techniques to motivate employees, how to train

and motivate employees about changes, how to deal with attendance problems,

how to provide feedback, addressing employee resistance, and options to assess

work needed if the workspace is not accessible. Doc. 44-1 Exh. 8.

12 Passing is 70 or higher. Doc. 44-15 ¶12. At Stafford’s deposition,

counsel for DCPS showed him a log indicating he had reviewed the exam after

to revise the exam, changing at least 25% of the questions. Doc. 44-9 ¶37; Doc.

44-11 ¶26. The committee focused on changing questions with the highest error

rate. Doc. 44-9 ¶37; Doc. 44-11 ¶26. The committee knew how many correct or

incorrect answers were given to each question but did not know how any

individual answered a particular question. Doc. 44-9 ¶37; Doc. 44-11 ¶26. The

exam was given again, to seven employees, in January 2021. Doc. 44-15 ¶33.

Only Daniel Hodges, Caucasian, passed, and he was promoted to Carpenter

Foreperson. Doc. 44-15 ¶33; see Doc. 44-4 at 247-50.

Stafford expressed concerns that Hendrix shared exam information with

others, but there was no evidence of this. Doc. 44-6 at 41-42, 49-50; see Doc. 44-

4 at 74, 236-41; Doc. 44-8 ¶7. Each committee member signed a confidentiality

agreement.13 Doc. 44-15 ¶25. The committee met in a private room and did not

take materials out of the room. Doc. 44-15 ¶25. Pospychala and other committee

members knew Stafford had complained Hendrix shared information and that

Stafford did not think he should have to take a promotional exam.14 See Doc

taking it, but he denies ever having done so. Doc. 44-4 at 230-36, Exh. 30.

13 The Confidentiality Agreements are at Doc. 44-8, Exh. A (Brandt); Doc.

44-11 Exh. A (Hendrix); Doc. 44-13 Exh. E (Kuhl); and Doc. 44-9 Exh. E

(Ghandour). Pospychala’s Confidentiality Agreement is not part of the record.

14 There is no evidence other committee members knew of Stafford’s

complaints to the Office of Equity, discussed infra, except for Gaughan, who was

contacted by Jackson, Executive Director. See Doc. 44-2 at 39, 45-56; see also

footnote 19 infra.

44-5 at 18, 33-37. Three of the committee members–Hendrix, Kuhl, and

Ghandour–had direct knowledge of Stafford’s concerns about Hendrix since

they received Stafford’s email(s) or were involved in follow up to the emails

(further discussion of emails and citations infra). Doc. 44-9 ¶1; Doc. 44-13 ¶1.

Hendrix denied scoring Stafford’s interview lower than other committee

members or trying to influence other members to score Stafford’s interview

lower. Doc. 44-11 ¶24; Doc. 44-9 ¶33; Doc. 44-13 ¶¶23.

According to Gaughan, allowing promotions without an exam for Utility

Foreperson (what was different than for Carpentry) violated CS Rules. Doc. 44-

15 ¶20, Exh. G. Per Gaughan, “[n]o promotion can be given in Civil Service

without testing and creating an eligibility list.” Id. In contrast, Victoria Schultz,

Assistant Superintendent, Human Resources, testified Gaughan was incorrect,

and promotional requirements for foreperson are not required to be the same.15

Doc. 44-15 ¶¶13, 21; Doc. 44-6 at 50-51. Stafford does not know what the CS

Rules require. Doc. 44-4 at 75-76.

B. Interactions with Hendrix

Hendrix became Carpenter Foreperson in 2007, responsible to supervise

all carpenters, including Stafford. Doc. 44-15 ¶4; Doc. 44-9 ¶¶3, 5. As Carpenter

Lead, Stafford reported to Hendrix, shared an office with Hendrix, and had

15 Schultz also confirmed this understanding with the Director of

Employee Services for the City of Jacksonville. Doc. 44-15 ¶21.

responsibilities different from other carpenters, such as ordering supplies. See

Doc. 44-4 at 129-30, 274-75; Doc. 44-9 ¶4; Doc. 44-15 ¶¶5, 7.

In 2018, Hendrix mentioned evaluations were coming up. Doc. 44-4 at

26-28. Stafford interpreted this as a threat because Hendrix had not made a

similar comment before. Id. Stafford complained Hendrix communicated with

him in a harsh and intimidating manner, used a condescending tone and

mannerisms, provided unwarranted criticism, and failed to share project

information. Doc. 1 ¶18; Doc. 44-4 at 31-35; Doc. 44-1 Exh. 9. Stafford

documented interactions with Hendrix and others through notes and text

messages to himself.16 Doc. 44-4 Exhs. 4 (texts), 32 (notes). Even though

Stafford complained Hendrix constantly withheld information, he could only

16 The notes and texts are between 2016 to 2019, and primarily about

Hendrix. See generally Doc. 44-4 Exhs. 4, 32. Two notes are labeled

“harassment,” and describe incidents on April 4, 2017, about Hendrix checking

GPS for Stafford’s location (CM/ECF p. 479), and on May 14, 2018, describing

an interaction about responsibility for schools and Hendrix saying there would

be an exam for the foreperson job once he retired (CM/ECF p. 504). Other

examples include the following: on February 22, 2017, Stafford and Hendrix

argued about priority of work orders (CM/ECF p. 475); on March 12, 2017,

Stafford and Hendrix had a disagreement about completion of work and a

timesheet (CM/ECF p. 477); on April 6, 2017, there was an argument about

receipts not being in order (CM/ECF p. 480); on June 1, 2017, coworker remark

about “Black guys” playing ball and Hendrix remarked about using a black

trash bag to go out in the rain (CM/ECF p. 488); on September 8, 2017, Hendrix

told Stafford to get the “f---” out of the way (Stafford responds saying “don’t mess

at me or treat me like a child”) (CM/ECF p. 493). Some of the notes describe

what Stafford believes to be errors by Hendrix, such as ordering the wrong part,

smoking or lying about smoking, or improperly scheduling a project. E.g., Doc.

44-4 Exhs. 4, 32.

recall a few specific instances. See Doc. 44-4 at 31-45, 262-68; Doc. 44-9 ¶7.

Stafford testified there were often problems with Hendrix’s demeanor,

and that Hendrix cursed at him once. See Doc. 44-4 at 40-45, 262-68. Stafford

thought Hendrix was abrupt with other employes but was more abrupt with

Stafford and that Hendrix did not treat Caucasian employes in a similar

manner. Doc. 44-4 at 274-75, 327. Others testified Hendrix could be harsh or

gruff, but that Hendrix did not treat Stafford differently than others. Doc. 44-3

at 20-21; Doc. 44-7 ¶¶4-5; Doc. 44-9 ¶6; Doc. 44-10 ¶4; Doc. 44-12 ¶¶4-5; Doc.

44-14 ¶4. Hendrix knew he sometimes got on Stafford’s nerves. Doc. 44-11 ¶9.

Stafford could not recall Hendrix making any racial comments to or about

him. Doc. 44-4 at 259-62. Hendrix called Stafford a narcissist, which Stafford

thought might have been a disguised racial slur. Doc. 44-4 at 177-78, 190-92. A

painter, Timothy Haynes, testified Hendrix made two racial comments between

2015 and 2017.17 Doc. 45-6 at 6, 26-40. Haynes did not report either comment

and neither comment was about Stafford. See Doc. 45-6 at 26-36. There was no

other evidence of Hendrix making racist remarks. See Doc 44-3 at 14-17; Doc.

44-7 ¶¶4-5.

17 One instance was Hendrix telling someone he was “tired of these black

bitches” complaining, referring to a Black principal. Doc. 45-6 at 26-33. Another

comment was after a Black child asked a question about breakfast and Hendrix

commented, “I guess these black bitches can’t feed their kid [sic] at home.” Doc.

45-6 at 35-36.

C. Complaints and Response

In March 2018, prompted by a complaint from Stafford, there was a

meeting with Stafford, Hendrix, Kuhl, and Ghandour to discuss communication

between Stafford and Hendrix.18 Doc. 44-4 at 287, Exh. 4 (CM/ECF p. 158).

More than a year later, in June 2019, Stafford sent an email to Kuhl with the

subject line “Communication between [Hendrix] and [Stafford]” and mentioned

“hit and miss” communication. Doc. 44-13 Exh. A. The email provided examples

of “communication breakdowns” and complained Hendrix talked to him in a

“demanding tone.” Id. There was no mention of race or discrimination. See id.

Kuhl shared the information with Ghandour, and Ghandour asked Hendrix to

be more aware of his tone of voice. Id. ¶6. They suggested the office be

rearranged to address Stafford’s concern that Hendrix was “looking over his

shoulder.” Id. Kuhl and Ghandour acknowledged Hendrix can use a harsh tone

or communicate in a gruff manner, but believed this was how Hendrix

sometimes communicated and the issues between Hendrix and Stafford

reflected a personality conflict, not complaints of race discrimination. Id. ¶¶ 3-

10; Doc. 44-9 ¶¶6-13.

In June 2020, Stafford emailed Kuhl and Ghandour again, with the

subject line “Problems with [Hendrix]” and stated:

18 Hendrix reported to Kuhl, who reported to Ghandour. Doc. 44-13 ¶¶1-

2, 6; Doc. 44-9 ¶¶1-2.

I’m still having problems with Mr. Carlos Hendrix and the way he

communicates with me. His tone and body language, which I guess

are supposed to be intimidating, . . . are still problematic. He

continues to keep important information from me until the last

minute. I’m sure he highlights to you whenever I make a mistake,

but I don’t make no more mistakes than him, that’s a fact.

Doc. 44-13 Exh. B. In email or other communications with Kuhl and Ghandour,

Stafford did not mention discrimination or claim issues were due to race. Id.

¶¶4-9; Doc. 44-9 ¶¶7-8, 11-13; see also Doc. 44-4 at 326.

On June 29, 2020, Stafford complained to the Office of Equity and

Inclusion/Professional Standards (“Office of Equity”).19 Doc. 44-4 at 174-80,

Exh. 33; Doc. 44-15 ¶27. Stafford followed up by email July 20, 2020, and spoke

to the head of the office, Sherry Jackson, a few days later. Doc. 44-4 Exh. 33;

Doc. 44-2 at 24-37, Exh. 2. These complaints were largely about not being

automatically promoted to foreperson and the testing process, but Stafford also

mentioned race concerns. Doc. 44-2 at 24-37, Exh. 2. Stafford complained Black

applicants were being overlooked and Jackson understood his complaints about

unfairness in the promotion process were also based on his race. Doc. 44-2 at

30-32. Although Stafford and Jackson spoke in July, there was not further

communication between them until Stafford reached out again (twice) in

November 2020, regarding the promotional exam for Carpenter Foreperson.

19 Around this time, the head of the Office of Equity changed from

Josephine Jackson to Sherry Jackson. See Doc. 44-2 at 22-24; Doc. 44-4 at 286-

87, Exh. 33.

Doc. 44-2 Exh. 7. Jackson followed up with Gaughan on November 19, 2020,

and Gaughan believed the concern was about CS Rules and “did not fall under

the Office of Equity.”20 Doc. 44-2 at 46-48, Exh.7. Jackson did not treat it as a

complaint her department needed to investigate. Doc. 44-2 at 48-53.

DCPS did an investigation into Stafford’s concerns about the promotional

exam and process for developing the exam but did not investigate his concerns

about discrimination or harassment. Doc. 44-6 at 38-39. The DCPS

investigation concluded the promotional process and exam were proper and no

information had been improperly shared. Id. at 38-44.

II. Analysis

A. Standard

Under Federal Rule of Civil Procedure 56(a), a “court shall grant

summary judgment 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.”

Further, the Court will construe evidence in the light most favorable to Stafford.

See Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014).

20 This may be what prompted Gaughan’s email in November 2020,

stating lack of a promotion exam for Utilities Foreperson violated CS rules. Doc.

44-15 ¶¶23-24, Exh. G. Jackson thought Stafford did have meetings with other

HR representatives during the interim. Doc. 44-2 at 47-48. At some point,

Stafford asked to review his personnel file but was told the file was not in place

and once he could review the file, realized an evaluation was missing. See Doc.

44-4 at 271, Exh. 4 (CM/ECF p. 167).

B. Overview

Stafford brings claims for race discrimination, retaliation, and a hostile

work environment. See generally Doc. 1. DCPS disputes each claim. See

generally Doc. 17. Stafford’s primary complaint is about the promotional

process to Carpenter Foreperson. Stafford argues, as Carpenter Lead, he should

have been promoted automatically, like the process for Utilities Foreperson,

and that even if an exam was required, the exam development process and exam

itself were flawed and biased. His complaints about the promotion process apply

to the discrimination and retaliation claims. Stafford also complains about

interactions with his supervisor, alleging Hendrix created a hostile work

environment and that Hendrix’s involvement in the promotion process allowed

for bias and negatively impacted Stafford. See Doc. 1.

C. Promotion Process for Carpenter Foreperson

Stafford’s main argument is he should have been automatically promoted

to Carpenter Foreperson because he was the only Carpenter Lead. He argues

such automatic promotions have happened historically in trades, but there is

no evidence to support this. Of the six trade groups, only two have recently used

or allowed automatic promotions– Utilities and Electronics (which moved out of

Facilities Maintenance in 2019). When Hendrix announced his retirement in

2020, Utilities was the only trade in Facilities Maintenance with an automatic

promotion process, and the four others, including Carpentry, used a

promotional exam–open to employees who met the experience requirements,

either in the trade or as lead. Using promotional exams has been the process

for each of these trades for multiple years, even decades.

Stafford essentially argues the promotion process was changed to

negatively impact him, but there is no evidence to support this. 21 The

Carpenter Lead position was created in 2014, and Stafford became lead in 2015.

Before the Carpenter Lead position existed, promotion to Carpenter Foreperson

required one year of carpenter experience.22 After Stafford became lead, the

promotional requirements for Carpenter Foreperson were changed once–to

allow experience as either lead or carpenter to satisfy the promotion

requirements. The change specifically allowed lead experience to also meet the

promotional requirement. There is no evidence that promotion to Carpenter

Foreperson was ever limited to individuals with lead experience.

Stafford next argues the trades should have to use the same process and

different promotion practices among the trades violate CS Rules and is

21 Alternatively, Stafford claims when he moved to the lead position, he

was told he would be automatically promoted to foreperson without an exam.

The record lacks evidence of who allegedly said this and an automatic promotion

to Carpenter Foreperson is contradicted by the record evidence showing

promotional eligibility always included carpenter experience and was never

limited to lead experience.

22 There was no reference to lead experience because the lead role did not

exist.

discriminatory towards him.23 As support, Stafford relies on Gaughan’s email.

This fails for two reasons. One, there is no evidence the CS Rules require

promotional requirements be the same for different trade groups. Two,

Gaughan’s email states promotional exams are required and the lack of an exam

for Utilities is a violation of CS Rules. Therefore, even if Gaughan is correct, a

promotional exam was required for promotion to Carpenter Foreperson.

Stafford also has complaints about the exam and its development. These

include (1) information about study materials was confusing, (2) exam questions

were scored incorrectly, (3) there should not have been an interview component,

and (4) an outside vendor should have developed and administered the exam.

Critically, there is no evidence of different treatment with the exam. The same

written exam (each time) was given to everyone and scored the same. The same

interview questions and scoring matrix were used and the committee members

participating in interviews were the same. The study resources identified were

the same for everyone.

The issue for the Court is whether the exam was discriminatory or

retaliatory for Stafford and not whether the exam was good or fair or whether

23 Stafford argues there was “unequal treatment in [the DCPS] promotion

procedure for the open Carpenter Shop Foreman position which required an

internal examination when other Caucasian leadermen/lead workers had been

promoted directly to vacant foreman positions without taking and passing an

internal examination.” Doc. 1 ¶32.

study materials were helpful or confusing. See Chapman v. AI Transp., 229 F.3d

1012, 1030 (11th Cir. 2000) (noting a court will “not sit as a super-personnel

department that reexamines an entity’s business decisions.”) (quoted authority

omitted). Because the exam, including the interview portion, was the same for

everyone, Stafford’s complaints about the exam are not evidence of

discrimination or retaliation.24 Similarly, while use of an outside vendor might

be preferable, there was no requirement to do so and failure to use an outside

vendor, under circumstances here, is not evidence of discrimination, retaliation,

or ultimately of pretext.

D. Race Discrimination Claims

Stafford does not allege direct evidence of race discrimination, so the

claim is analyzed under the McDonnell Douglas burden shifting framework.25

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

Douglas, “[i]f the plaintiff makes out a prima facie case, the burden then shifts

24 There is no evidence that the test key to either exam was incorrect,

that any question was scored differently for an individual, or that any question

was improper or discriminatory. Stafford testified about one question and

answer he thought was incorrect, but his testimony indicates he misinterpreted

the question. Doc. 44-4 at 217-26.

25 The Court is mindful the McDonnell Douglas paradigm is an

evidentiary framework that does not change the ultimate question of whether

there is enough evidence to establish illegal discrimination. Tynes v. Fla. Dept.

of Juv. Just., 88 F.4th 939, 941 (11th Cir. 2023).

to the defendant to articulate a legitimate reason for the adverse action. If the

defendant does so, the plaintiff must then show that the defendant’s proffered

reason for the adverse action is pretextual.” Hurlbert v. St. Mary’s Health Care

Sys., Inc., 439 F.3d 1286, 1297 (11th Cir. 2006) (internal citation omitted).

To establish a prima facie case of race discrimination, Stafford must show:

(1) he is a member of a protected class; (2) he was qualified for the position; (3)

he suffered an adverse employment action; and (4) he was replaced by a person

outside his protected class or was treated less favorably than a similarly-

situated individual outside his protected class.” Maynard v. Bd. of Regents, 342

F.3d 1281, 1289 (11th Cir. 2003) (citing McDonnell Douglas, 411 U.S. at 802).

To satisfy the fourth element, the alleged comparator must be “similarly

situated in all material respects.” Lewis v. City of Union City, 918 F.3d 1213,

1224 (11th Cir. 2019). A similarly situated comparator will ordinarily have (1)

engaged in the same behavior; (2) been subject to the same employment policy,

guideline, or rule; (3) had the same supervisor; and (4) shared a similar

employment or disciplinary history. Id. at 1227-28.

To establish pretext, the plaintiff must show “the proffered reason was

not the true reason for the employment decision . . . 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.” Jackson v. Ala. State Tenure Comm’n, 405 F.3d 1276,

1289 (11th Cir. 2005) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248, 256 (1981)). The evidence for pretext “must reveal such weaknesses,

implausibilities, inconsistencies, incoherencies or contradictions in the

employer’s proffered legitimate reasons for its actions that a reasonable

factfinder could find them unworthy of credence.” Vessels v. Atlanta Indep. Sch.

Sys., 408 F.3d 763, 771 (11th Cir. 2005) (cleaned up).

Stafford cannot establish a prima facie case. While he is a member of a

protected class and failure to promote is an adverse employment action, there

is not a comparator and Stafford was not qualified because he did not pass the

exam.26 Because Hodges passed the exam, he is not a proper comparator.

Examples of automatic promotions from the Electronics or Utilities groups do

not involve comparators because the promotion requirements for those trade

groups were different. Even if Stafford could establish a prima facie case, he

lacks evidence to rebut the legitimate reason he was not selected for Carpenter

Foreperson–he failed to pass the exam.

Stafford argues the alleged problems with the promotion process and

26 As discussed above, Stafford argues the exam was improper, especially

the interview portion. Doc. 45 at 8. Even if the interview scores were eliminated,

however, Stafford did not have a passing score on either written exam. On the

first exam, he answered 39 of 60 correctly, a score of 65%, and scored lower on

the second exam, answering 38 of 60 correctly. Id. Seventy percent is the lowest

passing score. Doc. 44-15 ¶12.

exam amount to pretext, sufficient to survive summary judgment. 27 For

example, he argues justifications for difference in promotional requirements

among different trades were not documented, were subjective, and were

provided only after the Carpenter Foreperson exam was developed and given.

Doc. 45 at 1. This presumes documented justification for the differences are

required, but there is no evidence of such a requirement. Further, Stafford has

not provided evidence to call DCPS’s reasons for promotional differences among

the trades into question, much less evidence to show that differences were due

to his race, and such a disagreement is insufficient to establish pretext. See

Chapman, 229 F.3d at 1030.

Two racial remarks from Hendrix between 2015 and 2017, made when

Stafford was not present, not about Stafford and not about the promotion

process (which involved a number of people besides Hendrix), are not sufficient

to establish pretext as it relates to the promotion process and decision in 2020

and 2021. See Maholanyi v. Safetouch of Tampa, Inc., No. 3:14-cv-1161-TJC-

JRK, 2016 WL 3595743, at *6 (M.D. Fla. July 5, 2016) (noting that even if

alleged age remarks were made by supervisor they were insufficient to establish

27 Stafford argues the lack of investigation into his complaints is a

deviation from process that shows pretext and seems to argue a reasonable

investigation might have resulted in a different outcome with the foreperson

exam or promotion. Doc. 45 at 15. These arguments are addressed in the

retaliation section.

pretext) (citing Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1229

(11th Cir. 2002) (additional citations omitted)). Stafford’s attempts to show

pretext are just disagreements with business decisions made by and policy

implemented by DCPS. Stafford “is not allowed to recast [DCPS’s] proffered

nondiscriminatory reasons or substitute his business judgment for that of

[DCPS].” Chapman, 229 F.3d at 1030.

Alternatively, Stafford argues there is a “convincing mosaic” of

circumstantial evidence sufficient to support a triable issue. Doc. 45 at 10-16.

Stafford argues it is improper to allow automatic promotions for Utilities but

not other trades, the interview was subjective, and an investigation would have

shown racial animus. See id. Stafford’s complaints about process problems or

weaknesses, fall well short of evidence that allows a fact finder to conclude

Stafford was not promoted due to his race. These concerns do not create a

convincing mosaic that Stafford’s race played a role in the decision to not

promote him or in development of the exam. Cf. Jenkins v. Nell, 26 F.4th 1243,

1250-51 (11th Cir. 2022) (reversing summary judgment for defendant–employer

and finding a convincing mosaic based on disparate discipline, race–based

comments, large number of departures of white operators after new manager,

and additional evidence).

Therefore, summary judgment is due to be granted in favor of DCPS as

to the race discrimination claim.

E. Retaliation

A prima facie case of retaliation under Title VII requires (1) protected

activity, (2) a materially adverse action, and (3) a causal connection between

the two. Kidd v. Mando Am. Corp., 731 F.3d 1196, 1211 (11th Cir. 2013).

Stafford is unable to establish a prima facie case because there is no adverse

employment action causally connected to any protected activity.

As a starting point, the promotional requirements for Carpenter

Foreperson have not changed since being updated in 2016. Stafford made

multiple complaints about Hendrix, but there is no evidence Stafford

complained in 2016 or before, so the promotional requirements did not change

because of Stafford’s complaints. Accordingly, to the extent the retaliation claim

is based on not being automatically promoted or having to take the exam, there

is not a prima facie case of retaliation, because there is no protected activity

causally connected to the development of the promotion requirements in 2016.

Stafford complained to Kuhl, Ghandour, sometimes both, about problems

with Hendrix in 2018, 2019, and 2020, These complaints described Hendrix

withholding information, using a harsh tone or aggressive body language,

engaging in unwarranted criticism of Stafford, and other communication

problems with Hendrix. Stafford did not tell Kuhl or Ghandour he thought the

problems were related to his race or possible race discrimination. These

complaints are not protected activity. See Hunsaker v. Found. Partners Grp.,

LLC, No. 6:18-cv-1996-ACC-DCI, 2020 WL 10355118, at *11 (M.D. Fla. Dec. 23,

2020) (noting complaints about rude or dismissive behavior not based on a

protected characteristic is not protected activity) (citing Coutu v. Martin Cty.

Bd. of Cty. Comm’rs, 47 F.3d 1068, 1074 (11th 1995)).

Stafford argues the temporal proximity between his complaints and the

exam process is sufficient to show causal connection. Doc. 45 at 16-17. The last

of these complaints was at least three months before the exam committee began

meeting in late October See Doc. 44-9 Exh. B. Even if viewed as protected

activity, the complaints are too distant from any adverse action to support a

causal connection solely based on temporal proximity. See Brown v. Ala. Dep’t

of Transp., 597 F.3d 1160, 1182 (11th Cir. 2010) (citations omitted).

Stafford also complained in July and November 2020 to the Office of

Equity, and those complaints did mention race. The Office of Equity concluded

the complaints were primarily about the promotion process and not race.

Therefore, it did not investigate, even though it arguably should have. It did,

however, bring the concern to the attention of others with responsibility to

address the testing concerns. DCPS did assess whether it was proper to have a

promotional exam for the Carpenter Foreperson, whether Hendrix should have

participated, and whether Hendrix shared information.

Stafford argues the failure to investigate is an adverse action supporting

retaliation. However, the failure to investigate a complaint is generally not

construed as retaliation for making the same complaint. Perry v. Schumacher

Grp. of La., No. 2:13-cv-36-JES-NPM, 2020 WL 6938391, at *3 (M.D. Fla. Nov.

25, 2020) (noting failure to investigate a complaint is generally not considered

an adverse action because the employee does not suffer harm as a result of the

failure to investigate) (citing Entrekin v. City of Panama City, Fla., 376 F. App’x

987, 995 (11th Cir. 2010)).

Stafford contends “being subjected to a flawed promotional process” is an

adverse employment action. Doc. 45 at 17. Because Stafford did not pass the

promotional exam, the failure to promote is not an adverse action that can

support his retaliation claim. Nonetheless, Stafford argues his complaints about

Hendrix improperly impacted the promotion process, including development of

the exam. Specifically, Stafford argues Hendrix should not have participated in

developing the exam or in selecting the new foreperson and that Hendrix biased

other committee members by sharing information about Stafford’s complaints.

See Doc. 45 at 15-17; Doc. 44-4 at 80, 167.

Three committee members–Hendrix, Kuhl, and Ghandour–knew of

Stafford’s complaints about Hendrix because they were involved in receiving

and responding to Stafford’s concerns. Hendrix mentioned to others on the

committee that Stafford thought Hendrix shared information and Stafford

objected to taking the exam. There is no evidence committee members, apart

from Gaughan, knew of Stafford’s complaints to the Office of Equity. The

requirement for Stafford to take the exam existed prior to his complaints.

Therefore, the complaints did not cause Stafford to have to take the exam and

are not causally related to the requirement that Stafford take the exam.

Although most committee members knew Stafford objected to the exam or had

complaints about Hendrix, there is no evidence, apart from Stafford’s

speculation, this impacted development of the exam or the promotional process.

Finally, Stafford complained Hendrix shared information about the exam,

but admitted he did not have direct knowledge Hendrix had shared information.

Assuming arguendo that such sharing could be an adverse employment action,

DCPS did investigate this concern and did not find evidence of sharing. Apart

from Stafford’s own belief, there is no evidence that Hendrix shared information

with others. Therefore, Stafford’s surmise about improper sharing is not

sufficient for a prima facie case or to establish pretext. See Hunsaker, 2020 WL

10355118, at *11 (noting “the non-moving party cannot create a genuine issue

of material fact through speculation”) (citing Shiver v. Chertoff, 549 F.3d 1342,

1343 (11th Cir. 2008)).

If a prima facie case were established, the burden shifting of McDonnell

Douglas would apply, and Stafford must provide evidence to show the reason

for an adverse action is pretextual. As already discussed, there is no evidence

showing the reason Stafford was not promoted to Carpenter Foreperson was

pretext, because it is undisputed he failed the exam. No other adverse action is

at issue. Accordingly, summary judgment is due to be granted in favor of DCPS

as to the retaliation claim.

F. Hostile Work Environment

To establish a race-based claim for a hostile work environment, Stafford

must prove (1) he belongs to a protected class, (2) he was subjected to

unwelcome harassment based on race, and (3) the harassment was severe or

pervasive enough to alter the terms and conditions of his employment. Adams

v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1248-49 (11th Cir. 2014). Only conduct

that is based on a protected category, such as race, may be considered in a

hostile work environment analysis. Jones v. UPS Ground Freight, 683 F.3d

1283, 1297 (11th Cir. 2012). Behavior that is merely unfair or rude, but not tied

to a protected characteristic, does not support a hostile work environment.

Hunsaker, 2020 WL 10355118, at *11 (citing Coutu, 47 F.3d at 1074).

Stafford complains Hendrix was a poor communicator, withheld critical

information, and was often abrupt, threatening, and intimidating. Stafford

complains Hendrix once cursed at him. A painter overheard Hendrix make two

racial remarks between 2015 and 2017, but neither remark was made to or

about Stafford. Stafford believed Hendrix communicated poorly or harshly with

others, but the behaviors were worse with Stafford, especially compared to how

Hendrix treated Caucasian employees. Other DCPS employees, including

people who supervised Hendrix and people whom Hendrix supervised, agree he

sometimes communicated in a harsh style. Stafford complained these behaviors

occurred often or constantly over a period of years but could offer only a few

examples of the problem behavior, despite sending himself texts and making

notes. Harris v. Public Health Tr. of Mia.-Dade Cnty., 82 F.4th 1296, 1305 (11th

Cir. 2023) (affirming summary judgment for employer on hostile work

environment claim even though one comment was highly offensive, because

offensive remark was not directed at plaintiff and remaining incidents over

several years were not “sufficiently severe or pervasive to alter the terms and

conditions of her employment.”)

Apart from Stafford’s own belief that Hendrix treated him more harshly

because of his race, there is no evidence that any poor behavior was due to

Stafford’s race, and even if it were attributable to race, it does not rise to the

level of being severe or pervasive. Therefore, summary judgment is due to be

granted in favor of DCPS as to the hostile work environment claim.

III. Conclusion

The evidence showed that Hendrix was a difficult boss, who made racial

remarks in the past (not addressed to Stafford), and that he and Stafford had a

challenging relationship. The evidence also shows there were potential

inconsistencies in the DCPS promotion process. But there are no triable issues

that the failure to promote Stafford was based on his race or that DCPS

retaliated against him. Use of a promotional exam for Carpenter Foreperson

was not discriminatory or retaliatory. Even if Stafford could establish a prima

facie case of discrimination or retaliation, he cannot rebut the legitimate reason

he was not promoted—because he did not pass the promotional exam. The hostile

work environment claim fails because there is no evidence of severe or pervasive

treatment impacting the terms and conditions of Stafford’s employment.

Accordingly, it is hereby

ORDERED:

1. Defendant’s Motion for Summary Judgment, Doc. 44, is

GRANTED.

2. The Clerk is directed to enter judgment in favor of Duval County

Public Schools and against Spencer Stafford and close the file.

DONE AND ORDERED in Jacksonville, Florida the 11th day of March,

2024.

f y. Cimotheg Corrig □□

TIMOTHY J. CORRIGAN

“= _~United States District Judge

ddw

Copies to:

Counsel of record

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