“Phillips could not prevail, then, by arguing that she did not believe her actions to be insubordinate or that she should not have been fired for her insubordinate conduct—but that is not what she says. Instead, Phillips insists that the conduct itself never happened.”
How later courts described this case
- “Phillips could not prevail, then, by arguing that she did not believe her actions to be insubordinate or that she should not have been fired for her insubordinate conduct—but that is not what she says. Instead, Phillips insists that the conduct itself never happened.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
EBONY KELLEY,
Plaintiff,
v. Case No. 8:23-cv-1162-WFJ-SPF
ALLEGIANT AIR, LLC d/b/a
Allegiant Airlines,
Defendant.
_______________________________/
ORDER
Before the Court is Defendant’s motion for summary judgment (Dkt. 33),
Plaintiff’s response (Dkt. 40), and Defendant’s reply (Dkt. 42). After careful
consideration of the submissions of the parties, the applicable law, and the entire
file, the Court concludes Defendant’s motion is due to be granted.
Plaintiff Ebony Kelley, a black African American woman, sues Allegiant Air,
LLC (“Allegiant”) for racial discrimination and retaliation under 42 U.S.C. § 1981.
Dkt. 1. After a company investigation of a racial complaint made by a white co-
worker, Plaintiff was suspended and then terminated. Plaintiff alleges
discrimination because her non-black co-worker was not reprimanded or
terminated for similar offending conduct. She claims Allegiant terminated her in
retaliation for informing the general manager of the Pinellas International Airport,
human resources (“HR”), and Allegiant’s CEO about past “racial” conduct of the
co-worker. Defendant seeks summary judgment on both counts.
PERTINENT FACTS
The facts are set forth in the light most favorable to the nonmoving party,
Plaintiff.1 On February 24, 2021, Plaintiff accepted a position as trainee for a
customer service agent with Allegiant at the Pinellas International Airport in
Pinellas County, Florida (identified as “PIE”). Dkt. 36-2. After she successfully
passed training, Plaintiff became a part-time customer service agent on April 30,
2021. Dkt. 36-1 (Dep. of Kelley) at 25. Because Plaintiff desired to hold a lead or
supervisory position in customer service or ground operations, she applied for
these jobs as early as June 2021, when openings became available. Dkt. 36-1 at
29; Dkt. 36-14 at 2.
Attendance warning
On July 12, 2021, however, Plaintiff received a warning for attendance
violations. Dkt. 36-5 (Corrective Counseling Form of 7/7/2021); Dkt. 41 at 2, 3
(Plaintiff’s admission of receipt on 7/12/2021). This “Level 2 Warning” issued
1 United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
after she “called off” for her scheduled shift at least six times over two months.2
Id. This warning is significant because it generally excludes consideration for a
promotion or transfer. 3 Under Allegiant’s policies, an employee is not eligible for
a promotion the first six months of employment as well as for twelve months after
receiving a Level 2 or higher discipline. Dkt. 36-3 at 31; Dkt. 36-1 at 34 (“The
policy says it will stay on your record for 12 months.”). Nevertheless, these
requirements may be waived in “extraordinary or unique situations.” 4 Id.
Offending behavior of another employee
Undeterred by her warning, Plaintiff applied for the October 2021 posting of
an available lead position as a customer service or ground operations agent. Dkt.
2 Calling off or calling out refers to an employee calling Allegiant to report he or she will not be
coming to work (taking unscheduled time off) when he or she has no available sick time. Dkt.
36-13 at 5.
3 The Team Member Handbook, or employee handbook, provides in pertinent part:
Team Member eligibility for promotions and transfers will be based on, but not
limited to:
1. Ability to meet criteria of the new position as defined in the job description
2. Completion of at least six (6) months in the current position
3. No disqualifying corrective counseling
a. Disqualifying or corrective counseling is defined as an ongoing
Performance Improvement Plan (PIP); performance or conduct infractions
at a Corrective Counseling Level 2 or Final; or attendance infractions at a
Corrective Counseling Level 2 or Final.
Corrective counseling is defined as an ongoing performance improvement.
In extraordinary or unique situations, the eligibility requirements listed may be
waived if approved by People Services.
Dkt. 36-3 at 31. “People Services” means the HR department. Dkt. 41-3 at 4.
4 Plaintiff admits that her situation was not unique, but “it could have been [unique] . . . had they
approved me.” Dkt. 36-1 at 34.
36-1 at 34; Dkt. 36-14 at 3. Plaintiff believes Allegiant discriminated against her
by not hiring her for this position. Dkt. 36-1 at 34. It was about this time that she
started receiving comments about her hair. Id. at 35 (“I need to perm it. It’s nappy.
Is it yours?”). She told John Jordan, a black co-worker, about how all the co-
workers were touching her hair every day. Id. at 14. The only person who Plaintiff
can name as someone who touched her hair was “Stacey”—a white co-worker. Id.
at 12. As she touched Plaintiff’s hair, Stacey asked if it was real. Id. The team
leads Vivian Vega and Trey Wingfield acted swiftly, pulled Stacey to the side, and
spoke with her. Id. Stacey never bothered Plaintiff again. Id. Plaintiff admits that
none of the individuals who were responsible for hiring or promoting ever made
these types of statements about her hair. Dkt. 36-1 at 35. She further admits that
she did not report the hair comments or hair touching to any supervisor or HR
other than Angela Peterson, the general manager, which occurred over a year later
in November 2022. Dkt. 36-1 at 13, 15; Dkt. 36-2.
Conditional approval for training in Airport Operations
In December 2021, Peterson conditionally approved Plaintiff to train in
airport operations to potentially fill the position of a base operations agent. Dkt.
36-1 at 35, 36; Dkt. 36-13 at 7; Dkt. 36-15 at 3. The operations job required
expertise in using the Excel program, which Plaintiff understood. Dkt. 36-1 at 36.
Plaintiff took a “crash course” in Excel at college in 2016. Dkt. 36-1 at 38. She
admitted, although she told Peterson that she had used Excel in the past, she had
difficulty during training in using the Excel program in operations. Dkt. 36-1 at
36, 38. Her supervisors in ground operations, as well as co-worker John Jordan,
told Peterson that Plaintiff was not grasping the duties of the position. Dkt. 36-15
at 3. According to Peterson, Plaintiff “struggled with Excel” and the two of them
reached the conclusion that Plaintiff would be better off resuming her tasks as a
customer service agent. Dkt. 36-13 at 7.
Plaintiff vehemently denies that she amicably agreed to return to her prior
position. According to Plaintiff, the two supervisors in ground operations, Melissa
Simmons and Marc Small, “were constantly saying that I needed to go back to [the
customer service agent]” role. Dkt. 36-1 at 39. The two started to harass her
because they did not want her in ground operations. Id. at 91. They harassed her
“by excessively . . . micromanaging” her when they did not act this way toward
others. Id. Plaintiff claims that “they were excessively mean” and Simmons spoke
to her in a “disgusting” or “sarcastic” tone. Id. at 91–92. Plaintiff told Jordan
about Simmons and Small but never alerted anyone else or used the company
reporting procedure to lodge her complaints. Id. at 92–93.
Plaintiff believes that not receiving full approval for a transfer to airport
operations was racial discrimination because in comparison to other employees,
she did not receive the same training. Dkt. 36-1 at 39. Specifically, she mentioned
Jaquana (“Jay”) Cunningham (African American) and “Amari” (“brown-skinned”)
as individuals who received better training in operations. Id. at 39, 40. It was
Cunningham who was selected as the base operations agent in airport operations.
Dkt. 36-1 at 40; Dkt. 36-15 at 3.
More job applications
Despite her ineligibility arising from the attendance warning, Plaintiff
continued to apply for promotions. On December 30, 2021, Plaintiff applied for a
lead customer service agent position. Dkt. 36-1 at 40, 41. Allegiant canceled this
job requisition before it was filled. Dkt. 36-14 at 4. On January 20 and April 30,
2022, Plaintiff applied again for a customer service agent lead position. Dkt. 36-14
at 4; Dkt. 36-1 at 40, 41. Allegiant used the January requisition to promote four
new internal leads: Trey Wingfield (Caucasian), Curtis Edwards (Caucasian),
Alaysha Dixon (African American), and Jeremy Lee (Hispanic). Dkt. 36-14 at 4:
Dkt. 36-1 at 41, 93. On April 30, 2022, Plaintiff also sought a stations supervisor
job, but Ray Smith (Hispanic) was internally promoted to this position. Dkt. 36-14
at 4–5. Allegiant did not promote Plaintiff for these positions because she
remained on an active Level 2 warning for attendance. Dkt. 36-14 at 3, 5.
Meanwhile, Plaintiff received a second counseling in early March 2022 for
attendance—calling out for shifts. Dkt. 36-6 (Corrective Counseling Form of
3/4/2022); Dkt. 36-1 at 43. This “Coaching Discussion” is not considered
disciplinary action. Dkt. 36-1 at 43. Even though Plaintiff still carried the July
2021 attendance warning, Peterson approved her application for a full-time
customer service agent position on April 1. Dkt. 36-1 at 43; Dkt. 36-14 at 4. An
increase in hours is not considered a promotion. Dkt. 36-14 at 4.
At last, on July 12, 2022, Plaintiff’s Level 2 warning expired. On July 17,
she applied for a non-supervisory, hourly, part-time position as a charter ramp
representative. Dkt. 36-14 at 5. Allegiant offered this position to Plaintiff, but she
did not timely accept. Dkt. 36-1 at 44, 45. On July 31, Plaintiff applied for
another part-time position—a grounds operations agent commissary lead, which
opening was closed without a hire or promotion. Dkt. 36-14 at 5; Dkt. 36-1 at 45.
Plaintiff’s final application on August 12 for a position in Laredo, Texas, as a non-
supervisory stations representative-customer care employee was denied. Dkt. 36-
14 at 5; Dkt. 36-1 at 45. Plaintiff does not allege discrimination concerning any of
these three positions. Dkt. 36-1 at 44–46.
Final Warning for Attendance
In November 2022, she received another disciplinary action for both
attendance and tardiness. Dkt. 36-7 (“Corrective Counseling Form of 11/21/2022).
This third action was a “Final Warning” issued “due to call outs and recent lates for
[Plaintiff’s] shifts” and cautioned that “any further occurrences may result in
termination from the company.” Id. The attachment to the warning shows the last
infraction prompting the action occurred on November 17, 2022. Id. at 3. Plaintiff
and Peterson met on November 22, to discuss this final warning. Dkt. 36-15 at 4.
Plaintiff refused to sign the form. Dkt. 36-7 at 2.
At the meeting with Plaintiff about attendance, Peterson asked Plaintiff if
she had heard any rumors about racial tensions or a “race war” at work. Dkt. 36-
15 at 4; Dkt. 36-1 at 15, 18. Plaintiff, for the first time, told Peterson about co-
worker Stacey touching her hair in the past but that the two leads (Vega and
Wingfield) addressed the situation immediately. Dkt. 36-1 at 13, 16–17. Plaintiff
did not mention any other employees specifically but told Peterson that “a majority
of the workers” were touching or commenting on her hair. Dkt. 36-1 at 13, 16.
Plaintiff told her she was unaware of any race war. Dkt. 36-1 at 18; Dkt. 36-15 at
4.
Incident with co-worker Buch and ensuing Investigation
On the night of November 20, 2022, an incident occurred between Plaintiff
and Jennelle Buch, a ground operations agent, in the Allegiant breakroom. Dkt.
36-1 at 52; Dkt. 36-11 at 6; Dkt. 36-14 at 6; 29–30. Around 9:30 p.m., Buch was
on a company computer working on required learning paths called “Universities,”
when Plaintiff walked in and asked her to get off the computer so that she could
enter “gate notes” or flight information and also to print something. Id. Plaintiff
kept insisting that she needed the computer Buch was using because Plaintiff,
perhaps mistakenly, believed that it was the closest computer with printing
capabilities. Dkt. 36-11 at 6–7. Buch, on the other hand, understood that the
computer she was using was designated for ground operations agents, like herself,
to complete their mandatory courses and that customer service agents, like
Plaintiff, have many more available computers. Buch declined to get up from the
computer but was feeling bullied. Id.; Dkt. 36-14 at 29.
After Buch repeatedly responded to Plaintiff’s requests by telling Plaintiff to
find another computer, Plaintiff responded with either “This is racist!” or “Is this
racist?” Dkt. 36-11 at 6; Dkt. 36-14 at 6; Dkt. 36-14 at 29, 30. At that point, Buch
logged off the computer and spoke with her team lead, Reinaldo Berrios. Dkt. 36-
11 at 6–7. Berrios had witnessed the incident and after Buch asked to go home, he
told her she could, provided she had completed her work. Dkt. 36-11 at 6; Dkt. 36-
1 at 63, 70. Others who witnessed the incident were Carlos Huertas (ground
operations agent), and Kalista Stone (ground operations agent). Dkt. 36-11 at 7;
Dkt. 36-14 at 7, 30.
Buch also reported the incident to Peterson. Dkt. 36-11 at 6–7. Peterson set
up a meeting about seven days later, on November 28, to discuss the matter with
Buch and Valentina Zacco (HR specialist). Id. at 8. At the meeting held November
28, Buch relayed the events of November 20. Dkt. 36-14 at 30. Buch remembered
that long before the November 20 occurrence, she and Plaintiff had discussed race.
Dkt. 36-11 at 5. For example, with Buch present, Plaintiff told other African
Americans “not [to] act so white skinned,” which Buch found offensive because
Plaintiff had previously told her that Buch’s ancestors were slave-owners when
they were not. Dkt. 36-11 at 5; Dkt.36-14 at 7; Dkt. 36-14 at 30. As requested,
Buch submitted a written statement concerning the breakroom incident. Dkt. 36-
14 at 29 (email dated 11/28/2022).
At this juncture, Anna Mortimer (HR specialist III) took over as lead
investigator of Buch’s complaint. Dkt. 36-14 at 2, 5, 7. On December 12,
Mortimer and Phillip Marran (a PIE supervisor) interviewed Plaintiff concerning
the breakroom incident. Dkt. 36-1 at 62; Dkt. 36-14 at 8, 27; Dkt. 41-11 at 5.
Plaintiff denied stating “This is racist” or using the word “racist” and told them
racism did not come up that night. Dkt. 41-11 at 5. Plaintiff said she had heard the
“buzz lately about racial tensions” at Allegiant but it did not involve her. Id.; Dkt.
36-1 at 66. Although not mentioned in Mortimer’s contemporaneous notes,
Plaintiff testified at deposition that in the discussion of December 12, Plaintiff
accused Buch of previously making racist comments and being a racist. Dkt. 36-1
at 62.
In any event, Plaintiff submitted her written statement on December 15,
which disclosed instances of alleged past exchanges between Plaintiff and Buch,
and perhaps also Buch’s sister, Samantha Buch, who works for Allegiant as a
customer service agent and Buch’s brother, who used to work for Allegiant. Dkt.
36-8 at 4–5. Plaintiff recounted the night of November 20, and wrote that Buch
“was being a bully” and “very mean,” became angry, logged off the computer, and
“stormed out” of the breakroom. Id. at 4. For the first time, Plaintiff alleged that
Buch previously made “the most disrespectful comments about all races . . .
[m]ainly the Hispanic race.” Id. at 5. She continued that Buch once said that
George Washington is the “only white person with that last name . . . because he
was a slave owner.” Id. Plaintiff wrote that when she had parked her car in front
of the airport, she left her hip hop music on “low,” and Buch turned it off “because
it was too ghetto and trashy.”5 Id. When Buch and Buch’s brother changed
5 Buch testified that she recalled Plaintiff moving her car from the parking lot and leaving it out
front, running with the “music blaring.” Dkt. 36-11 at 6. Because it was bothering the
customers, Buch reached into Plaintiff’s idling car and turned the music down. Id.
Plaintiff’s car’s light bulb, they told Plaintiff they got sick afterwards because
“they were hugged by a black person for the first time.” Id. Lastly, she said that a
former ground operations agent told her he overheard either Buch, her sister, or
another co-worker say “getting this ‘n***** b****’ fired.” 6 Id.
Plaintiff admits that she never reported any of these incidents before. Dkt.
36-1 at 56–58, 67. She testified that she did not report these incidents because
Buch was making jokes, even though Plaintiff did not think they were funny. Id.
Furthermore, when Mortimer asked Plaintiff to provide the dates and witnesses to
her newly raised allegations in her written statement, Plaintiff could not do so.
Dkt. 36-8 at 1 (“I wish I did but unfortunately do not. All interactions have been 1
on 1 [with Buch].”).
Witnesses’ Testimony
Two co-workers who witnessed the breakroom incident were also
interviewed on December 12—team lead Berrios and Huertas.
Berrios told Mortimer and Marran that Berrios witnessed the entire
breakroom incident and that it was Plaintiff who brought up the race issue, telling
Buch that the reason Buch would not let Plaintiff use the computer was because
6 No other context is provided for this allegation.
Buch was white and Plaintiff was black. Dkt. 36-14 at 23. As soon as Buch heard
the comment, she logged off the computer, asked to speak with Berrios, and he
gave her permission to clock out early. Id. Berrios confirmed that Buch made no
reference to race. Id. In his written statement submitted the next day, Berrios
wrote that Plaintiff repeatedly asked Buch to get off the computer because she
needed to use it. Dkt. 36-14 at 22. Plaintiff ultimately told Buch that “this is
racist” that Buch would not turn the computer over to Plaintiff. Id. Berrios added
that Plaintiff’s behavior was “inappropriate and not necessary.” Id.
Huertas told Mortimer and Szilvia Nemeth (a PIE supervisor) that he
observed part of the incident while he was having his dinner in the breakroom.
Dkt. 41-11 at 6. Huertas told them that Buch was doing her Universities on the
computer but Plaintiff kept asking her to use that computer. Id. Plaintiff said
something racial, that it was not fair. Id. In his written statement submitted that
day, Huertas wrote that Plaintiff “ was persistent on trying” to get Buch off the
computer, but Buch remained calm and continued to finish her work. Dkt. 36-14 at
24. He recalled that it was Plaintiff who made a racial comment to Buch, which
was otherwise irrelevant to their discussion. Id.
A third eyewitness, Stone, was interviewed on December 19. Dkt. 41-9 at 3.
Stone told Mortimer and Nemeth that when Buch told Plaintiff there were other
computers to use, it was Plaintiff who brought up race, saying “Is this because I am
black?” Dkt. 36-14 at 18. Stone confirmed that Buch said nothing that could be
perceived as invoking race but acknowledged that Plaintiff often brought up the
race card—that Plaintiff was black, and Buch and Stone were white, which always
got under Buch’s skin. Id. In her written statement submitted December 21, Stone
wrote that Plaintiff said to Buch: “But this is the only computer that will let me
print what I need printed. Is it because of race?” Dkt. 36-14 at 15.
Suspension and Termination
On December 19, Mortimer and Nemeth interviewed Plaintiff again. Dkt.
41-9 at 2. Plaintiff stressed that in the breakroom that night, she and Buch did not
speak about racism, and Plaintiff did not make a comment about Plaintiff being
black as the reason Buch would not leave the computer. Dkt. 41-9 at 2. Mortimer
told her that she was concerned about Plaintiff alluding to other employees as
being racist. Id. She told Plaintiff that at least three witnesses who were in the
breakroom that night had corroborated Buch’s allegation that Plaintiff commented
on racism as the reason Buch would not give up the computer. Id. Mortimer told
Plaintiff that she was suspended pending further investigation. Id.
On December 19, Plaintiff sent to the Chairman of the Board and Executive
Director of Allegiant, Maury Gallagher, an email, which provides in pertinent part:
I have been wanting to contact you for a while about the ongoing racial
tensions here at Allegiant . . . it’s out of control how situations are
handled here. I’ve been dealing with racism and all the stereotypes that
go with it since I’ve started [at PIE]. Anytime I mentioned it, it was
swept under the rug as me overreacting. I recently addressed a co-
worker about their racist comments and then I was placed on suspension
pending investigation. . . .
Dkt. 36-14 at 17. Afterwards, on December 20, Mortimer wrote her supervisor,
Adriana Ramirez, stating:
[Plaintiff] denied saying anything [in both investigative meetings and
her written statement] relating to racism to the employee in the situation
because there was nothing racist that occurred. In her email [to
Gallagher] she states “she addressed her coworker about racist
comments.” There is a dishonesty issue with this employee.
Dkt. 36-14 at 16 (email dated 12/20/2022).
On December 22, Mortimer, Peterson, and Brock Gregory (PIE manager)
held a discussion with Buch about the additional, past events raised by Plaintiff in
her December 16 written statement. Dkt. 41-6 at 4–5. Buch submitted a second
statement addressing these incidents. Id. at 2–3. That same day, Mortimer and
Peterson held a meeting with Plaintiff about the additional issues she raised in her
written statement and the email to Gallagher. Dkt. 41-7 at 3–4. Mortimer confirms
that Plaintiff reiterated that she had no witnesses to Buch’s alleged past racial
comments and could not provide specific examples of “racism” in the workplace
and that she did not say anything about race during the breakroom incident. Dkt.
36-14 at 13. Plaintiff did not identify any complaints that were “swept under the
rug” by Allegiant’s management. Id. They told Plaintiff she would remain on
suspension pending further investigation. Dkt. 41-7 at 4.
Several days later, on December 27, Allegiant determined that Plaintiff
should be terminated for misconduct, specifically dishonesty during the course of
the investigation about what transpired on November 20. Dkt. 41-2 at 25; Dkt. 41-
5 at 2. Plaintiff maintains that she was honest. Dkt. 41-2 at 25.
LEGAL STANDARD
Summary judgment is appropriate when “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A fact is material if it may “affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
genuine dispute means evidence “such that a reasonable jury could return a verdict
for the nonmoving party.” Id. It is not enough for the non-moving party to posit
that “the jury might, and legally could, disbelieve the moving party’s evidence.”
Hinson v. Bias, 927 F.3d 1103, 1115–16 (11th Cir. 2019) (citing Anderson, 477
U.S. at 256). The non-moving party must present “affirmative evidence that would
allow a reasonable jury to rule for [her].” Id. (internal quotation marks omitted).
The court must not weigh conflicting evidence or make credibility
determinations but must draw all reasonable inferences from the evidence in favor
of the nonmoving party. United States ex rel. Bibby v. Mortg. Inv. Corp., 987 F.3d
1340, 1346 (11th Cir. 2021) (citations omitted). An inference is reasonable if it is
not based on pure conjecture and speculation. Hinson, 927 F.3d at 1115 (citation
omitted); Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir.
1982) (citations omitted).
If a party attempts to create an issue of fact through an affidavit, that
affidavit “may be disregarded if it ‘flatly contradict[s]’ earlier deposition testimony
without explanation.” Pivac v. Component Servs. & Logistics, Inc., 570 F. App’x
899, 901 (11th Cir. 2014) (quoting Tippens v. Celotex Corp., 805 F.2d 949, 953
(11th Cir. 1986)). Drawing all reasonable inferences in favor of the nonmoving
party, the Court must not determine the witness’s credibility nor weigh the
evidence in reviewing the two. Id.; Feliciano v. City of Miami Bch., 707 F.3d
1244, 1252 (11th Cir. 2013) (citing Anderson, 477 U.S. at 255).
DISCUSSION
I. Race Discrimination under 42 U.S.C. § 1981
Section 1981 prohibits employers from discriminating against employees on
the basis of race in private or public employment contracts. Jenkins v. Nell, 26
F.4th 1243, 1249 (11th Cir. 2022) (citing Ferrill v. Parker Grp., Inc., 168 F.3d 468,
472 (11th Cir. 1999)). “Unlike a Title VII discrimination claim—where a lesser
‘motivating factor’ standard sometimes applies—a § 1981 claim requires proof that
race was a but-for cause of [the] termination.” Ossmann v. Meredith Corp., 82
F.4th 1007, 1014 (11th Cir. 2023) (citing Comcast Corp. v. Nat’l Ass’n of Afr. Am.-
Owned Media, 140 S. Ct. 1009, 1013, 1017 (2020)). The “but-for” test does not
require Plaintiff to prove that race was the “exclusive cause” of her termination.
Ossmann, 82 F.4th at 1014 (emphasis in original). Nonetheless, Plaintiff must
show that “a reasonable jury could conclude that had [she] not been [black], [she]
would not have been terminated.” Id.
A. Failure to promote or transfer
To prove a prima facie case of racial discrimination based on the failure to
promote, Plaintiff must establish that (1) she was a member of a protected class, (2)
she was qualified for and applied for the job, (3) she was rejected, and (4) someone
outside her protected class was promoted. Anthony v. Georgia, 69 F.4th 796, 807
(11th Cir. 2023) (citation omitted). In her response, Plaintiff did not address
Allegiant’s arguments for summary judgment on any alleged discriminatory
failures to transfer or promote. See generally Dkt. 40. To the extent Plaintiff’s
“disputed facts” contains argument, the Court considers the issues raised therein.
Dkt. 41 at 1–5.
First, there is no direct or circumstantial evidence that Plaintiff was
discriminated against when she was not transferred to airport operations after she
started training there in December 2021. Absent waiver or exceptional
circumstances, Allegiant’s policy states that an employee does not become eligible
for a promotion until after working six months provided that the employee does not
have an active “Level 2” or higher warning. This type of warning makes an
employee ineligible for a promotion or transfer for one year. Having received such
a warning July 12, 2021, Plaintiff was ineligible for a promotion or transfer until
July 12, 2022—unless her situation was deemed “extraordinary or unique.” Dkt.
41 at 3; Dkt. 36-1 at 32, 34; Dkt. 36-3 at 31. Notably, she has not shown that
anyone else was an exception to this rule, let alone a non-black person.
According to Plaintiff, Peterson told her that she could train and move to
airport operations.7 Dkt. 41 at 3; Dkt. 36-1 at 32, 34. Peterson states that the
approval was conditional in view of Plaintiff’s disqualifying attendance warning.
Dkt. 36-15 at 3. Peterson eventually told Plaintiff that she needed to return to her
position as a customer service agent because she could not adequately use Excel, a
necessary skill for a base operations agent position. Dkt. 36-15 at 2. According to
Peterson, Jordan told her that Plaintiff did not sufficiently understand how to use
7 It is uncontested that a move to an operations agent position would be considered a transfer (not
a promotion) with no pay raise. Dkt. 36-1 at 35.
Excel in the duties of operations department employees. Id. at 3. Peterson testified
that she discussed with Plaintiff about her struggling with Excel. Dkt. 36-13 at 7.
Although Plaintiff acknowledges that she had some difficulty with Excel, she
blames it on inadequate training in operations. The subject base operations agent
position was filled by Cunningham, an African American female. Dkt. 36-15 at 3.
Second, the lead positions Plaintiff sought throughout 2021 and into 2022
were either unattainable based on a disqualifying event8 or closed and no one was
promoted.9 In addition, after Plaintiff was no longer disqualified, she failed to
timely accept an offer for a part-time job.10 Lastly, she was not offered the position
of stations representative-customer care in Texas (not PIE), for which she applied
in August 2022, but she does not claim that this was due to racism. Dkt. 36-1 at
44–46.
On this record, Plaintiff has failed to establish a prima facie case of race
discrimination for a failure to promote. She was not qualified for a promotion per
the company’s handbook until she had worked there for six months and her
personnel action was free of any Level 2 or higher warnings for one year. When
8 She applied on June 6, 2021, October 24, 2021, December 30, 2021, January 20, 2022, and
April 30, 2022, for customer service agent lead or ground operations agent lead. Also on April
30, 2022, she applied for station supervisor.
9 For the lead positions she sought on June 6, 2021, October 24, 2021, and December 30, 2021,
the positions were closed. Even though she was no longer disqualified when she applied for the
July 31, 2022, grounds operations agent commissary lead position, Allegiant removed this job
opening before it was filled.
10 She applied for and was offered, on July 17, 2022, the position of charter ramp representative.
she reached the six-month mark in August 2021, she was still disqualified due to
her attendance warning of July 12, 2021. When she became eligible for a
promotion one year later, on July 12, 2022, she did not timely accept the offer of
the charter ramp position, and the lead agent commissary position was closed. If
she were qualified for the agent position in airport operations back in December
2021, one must assume both the absence of disqualifying warnings and sufficiency
in Excel. Moreover, this position was filled by an African American female.
Summary judgment is granted on failure to promote.
B. Discriminatory Termination
To establish a prima facie case of intentional race discrimination based on
circumstantial evidence, the plaintiff must show that (1) she was a member of a
protected class, (2) she was qualified for the job, (3) she suffered adverse
employment action, and (4) she was treated less favorably that similarly situated
employees outside her protected class. McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973); Lewis v. City of Union City, Ga., 918 F.3d 1213, 1220–21
(11th Cir. 2019) (en banc) (Lewis I). The burden then shifts to the employer to
rebut the presumption of intentional discrimination by articulating its legitimate,
nondiscriminatory reason for her termination. Lewis I, 918 F.3d at 1221. If the
defendant meets this “exceedingly light” burden of production, the plaintiff must
show the employer’s reason is pretextual.
Even if the plaintiff cannot satisfy the McDonnell Douglas evidentiary
framework, summary judgment will be denied if the plaintiff presents a
“convincing mosaic of circumstantial evidence that would allow a jury to infer
discrimination.” Lewis v. City of Union City, Ga., 934 F.3d 1169, 1185 (11th Cir.
2019) (Lewis II) (citation omitted). Under the “convincing mosaic” analysis, the
plaintiff must highlight evidence of “(1) suspicious timing, ambiguous statements,
or other information from which discriminatory intent may be inferred, (2)
systematically better treatment of similarly situated employees, and (3) pretext.”
Jenkins, 26 F.4th at 1250 (citing Lewis II, 934 F.3d at 1185) (internal quotation
marks omitted). The overarching issue remains whether the true reason the
plaintiff was fired was the discriminatory reason of race. See Tynes v. Fla. Dep’t of
Juvenile Justice, 88 F.4th 939, 946–47 (11th Cir. 2023) (citing Jenkins, 26 F.4th at
1250).
1. McDonnell Douglas framework
Under the McDonnell Douglas framework, Plaintiff easily meets two of the
four elements: she is a black African American, and Allegiant fired her. She was
qualified in the sense that she held the position of a full-time customer service
agent most of her time at Allegiant, up through her discharge. However, Plaintiff
was no longer qualified for the job if she stopped following Allegiant’s attendance
policies as well as demonstrating truthfulness and openness during the
investigation. Cf. Baker v. Sears, Roebuck & Co., 903 F.2d 1515, 1520–21 (11th
Cir. 1990) (per curiam) (holding that plaintiff was no longer qualified where she
failed to meet the employer’s policy regarding performance despite ample and fair
opportunity to do so).
Relying on the last element, Plaintiff argues that she was treated less
favorably than similarly situated employees in the conduct of the investigation. A
similarly situated individual must have been “engaged in the same basic conduct
(or misconduct) as the plaintiff, . . .subject[ed] to the same employment policy,
guideline, or rule . . . [reported to the] same supervisor as the plaintiff, . . . [and]
share[d] the plaintiff’s employment or disciplinary history.” Anthony, 69 F.4th at
805 (quoting Lewis I, 918 F.3d at 1227–28). The plaintiff and comparators must be
sufficiently similar in an objective sense. Id. (citing Lewis I, 918 F.3d at 1228).
Here, Plaintiff must identify a similarly situated non-African American
customer service agent who was not terminated when he or she 1) used a racist
term, or accused a co-worker of racist intentions, and 2) was found dishonest. The
only white co-worker referenced by Plaintiff who made a racist comment to a
black co-worker was terminated, just like Plaintiff. Dkt. 36-1 at 80. There is no
evidence about any potential comparator who invoked racism and was found
dishonest and not terminated. Although Plaintiff suggests that Buch was the one
who was dishonest in the interview, there is no evidence to support this and
Defendant reasonably found it not to be true after conducting an extensive
investigation. Nor does Plaintiff present any evidence that Defendant’s
investigation was unreasonable in light of the contradictory stories told by the
other co-workers.
Nonetheless, Plaintiff asserts two possible comparators: Buch and her sister.
Dkt. 40 at 4–6. All three were customer service agents at the same time of the
incident. Plaintiff argues that Allegiant should have investigated the claims of
racially discriminatory conduct raised in her first interview and written statement
before she was suspended. Buch is a comparator in that she allegedly raised or
initiated racial or racist terms with Plaintiff in the past, but Buch was not
suspended or terminated. Plaintiff also contends that when a prior complaint had
been made to Allegiant about an employee using the “n” word at a bar in the
summer of 2022 (with Buch’s sister present), it was dismissed by Peterson. Dkt.
36-1 at 57; Dkt. 41-4 at 2 (Pl. Decl. in opposition). Plaintiff admits she has no
firsthand knowledge of this event whatsoever. Dkt. 36-1 at 58.
These arguments do not persuade the Court that Buch or her sister were
similarly situated in all material respects, neither having been found dishonest after
an extensive investigation which ultimately resulted in their own admissions of
dishonesty to Defendant’s CEO. Because the absence of comparators does not
necessarily doom Plaintiff’s claim for discrimination, the question of whether the
evidence, considered as a whole, might infer intentional discrimination will be
analyzed using the “convincing mosaic” standard.
2. Convincing mosaic standard
a. Suspicious timing, Ambiguous statements, and other
Information
Plaintiff contends that the timing was suspicious when Mortimer concluded
Plaintiff was dishonest immediately after Plaintiff reported racial discrimination at
Allegiant to now CEO Gallagher (on December 20) but before Plaintiff’s
complaints of past conduct were investigated. Plaintiff posits that the words
attributable to Plaintiff constitute no more than ambiguous statements because
there is no clear consensus on exactly what Plaintiff said in the breakroom on
November 20. As “other information,” Plaintiff argues Allegiant failed to properly
investigate the “race war ” and the past constant touching of Plaintiff’s hair by co-
workers. Additionally, Plaintiff asserts that Mortimer incorrectly and illogically
concluded that Plaintiff was dishonest by informing Gallagher of racial
discrimination at PIE.
In the Court’s view, Plaintiff has not shown that the timing, statements, and
other points raise genuine issues of material fact that race could be inferred as the
true reason for her suspension and termination. Mortimer conducted both
interviews of Plaintiff as well as the witnesses who were in the breakroom on
November 20. She reviewed all the witness statements. Three witnesses
corroborated Buch’s version of the events. Upon her reading the email sent to
Gallagher, Mortimer’s initial assessment appears reasonable—after maintaining
she said nothing relating to racism to Buch, Plaintiff contradicted herself and wrote
that she did address Buch about racist comments. See Dkt. 36-14 at 16. Not
mentioning anything about race yet addressing racist comments with her co-worker
are incompatible statements.
Given that Mortimer held two meetings with Plaintiff about the breakroom
incident and that Plaintiff stood by her denial of bringing up race or saying
anything that could be construed as racist, Plaintiff was terminated for the non-
discriminatory reason of lying during the investigation. See Perry v. Walmart, Inc.,
No. 2:18-cv-606-FtM-29NPM, 2020 WL 1158719, at *6–7 (M.D. Fla. Mar. 10,
2020) (granting summary judgment and finding Perry’s dishonesty in an
investigation about Perry’s use of profanity towards a co-worker was legitimate,
non-discriminatory reason for termination). The Court also finds nothing
suspicious about the timing of her termination, which occurred several days after
her dishonesty was discovered and with the benefit of additional interviews of
Buch and Plaintiff, as well as Buch’s second written statement. Moreover, Plaintiff
provided them no witnesses to Plaintiff’s new complaint about the past touching of
Plaintiff’s hair and the past complaints about Buch and an alleged incident at a bar
that Plaintiff learned from an unidentified purported witness.11
b. Systematic better treatment of similarly situated employees
Plaintiff argues that she was treated differently than Buch in the
investigation of Buch’s complaint because Plaintiff was not believed and her
statements about Buch and others were not considered or taken seriously.
Although Allegiant ultimately believed Buch and the three eyewitnesses, Plaintiff
presents no evidence of systematically better treatment of non-black customer
service agents by Allegiant crediting their facts over hers.
c. Pretext
Allegiant’s proffered reason for suspension and termination was Plaintiff’s
dishonesty in the investigation of Buch’s complaint. To demonstrate pretext, a
plaintiff must show that the reason was ill-founded or false and that the real reason
11 Although Plaintiff attempts to provide some names in her declaration filed in opposition to this
summary judgment, it is uncontested that Plaintiff told Mortimer that any racial comments made
by Buch were witnessed only by Plaintiff.
was unlawful discrimination. St. Mary’s Honor Ctr. v. Hicks, 509 U.S., 515
(1993); Ring v. Boca Ciega Yacht Club Inc., 4 F.4th 1149, 1163 (11th Cir. 2012)
(citation omitted). It is not enough for the plaintiff to simply argue that the reason
was not true or that she did not believe her conduct amounted to dishonesty.12 It is
also insufficient that the plaintiff subjectively believed that she was discriminated
against. See Boone v. Publix Super Markets, Inc., No. 8:18-cv-2523-T-60TGW,
2020 WL 1694163, at *5 (M.D. Fla. Apr. 7, 2020) (citing Perry, 2020 WL
1158719, at *8).
The issue here is whether Allegiant honestly believed Plaintiff’s conduct
amounted to dishonesty. Allegiant is entitled to rely on a good faith belief that
Plaintiff committed the misconduct of lying during an investigation, and even if
Allegiant were proved to be mistaken, this mistake does not show pretext. See
Davidson v. Chspsc LLC, 861 F. App’x 306, 311 (11th Cir. 2021) (unpublished)
(citing Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1266 (11th Cir. 2010) and
E.E.O.C. v. Total Sys. Servs., Inc., 221 F.3d 1171, 1176–77 (11th Cir. 2000)). The
12 In Phillips v. Legacy Cabinets, the Eleventh Circuit concluded the district court did not err on
the issue of pretext because the proffered reason might have been false if a jury chose to believe
the plaintiff that the conduct comprising insubordination itself never happened. 87 F.4th 1313,
1324 (11th Cir. 2023) (“Phillips could not prevail, then, by arguing that she did not believe her
actions to be insubordinate or that she should not have been fired for her insubordinate
conduct—but that is not what she says. Instead, Phillips insists that the conduct itself never
happened.”). Unlike Phillips, while Plaintiff maintains she did not say anything about race
during the breakroom incident, she seemingly took the contrary position in the email to
Gallaher—she had recently addressed a co-worker about their racist comments. The facts here
are distinguishable from those in Phillips.
relevant inquiry is limited to whether Allegiant believed Plaintiff was guilty of
dishonesty, not whether the other witnesses were “lying through their teeth.” See,
e.g., Whitehurst v. Liquid Env’t Sols, Inc., 45 F. Supp. 3d 1328, 1348–49 (M.D.
Fla. 2014) (citation omitted).
Plaintiff claims she was telling the truth that she did not mention race or a
make a racial comment in the breakroom. This assertion, however, is undermined
by Plaintiff’s written statements and her own email to Gallagher. In the email,
Plaintiff seemingly contradicts her prior statements that she never brought up race.
Even if a jury found Mortimer somehow misunderstood Plaintiff’s email to
Gallagher, Plaintiff’s written submissions provide a reasonable basis for Allegiant
to honestly believe Plaintiff was not telling the truth during the investigation.
Allegiant honestly characterized Plaintiff’s multiple versions of the breakroom
incident as dishonest.
Plaintiff further argues pretext based on “inconsistency among witnesses
about what was said, and who was present, that was never interrogated by
Allegiant” and on Buch being unsure of what Plaintiff said to her. Dkt. 40 at 11.
To the contrary, Plaintiff could not identify anyone else who witnessed the
breakroom incident, and Buch and the other witnesses were confident that Plaintiff
asked if Buch was not logging off the computer because of race.
Plaintiff’s displeasure with past conduct concerning employees touching her
hair does not raise an inference of discriminatory pretext. First, Plaintiff did not
contemporaneously bring this issue to the attention of any lead, management, or
HR.13 Her references to discussions with Jordan about her hair are unspecific,
other than she talked with him in the past. See Dkt. 40 at 14; Dkt. 36-1 at 77–78.
Second, the only time Plaintiff objected to unwanted touching and commenting by
a co-worker, was the incident with Stacey which was immediately taken care of by
Vega, Wingfield, and Peterson. Even after Plaintiff wrote the email to Gallagher
and Mortimer questioned Plaintiff about it, Mortimer wrote: [Plaintiff’s] narrative
vacillated and she did not provide much detail regarding her allegations of racism
in PIE, other than her concerns that co-workers had touched her hair and that was
addressed and has since stopped.” Dkt. 41-5 at 2.
With respect to the alleged incident at the bar outside of work, Plaintiff’s
declaration in opposition, for the first time, identifies Dixon as the employee who
told Plaintiff that another co-worker overheard Buch’s sister use the “n” word.
Dkt. 41-4 at 2. This testimony differs from Plaintiff’s deposition testimony that
Buch’s sister and Buch would often hang out with the co-worker who used the
term. Dkt. 36-1 at 58. In any event, Plaintiff admits that she “[does not] know
what really happened” because she was not there. Dkt. 36-1 at 18, 58.
13 Plaintiff did not bring a claim for hostile work environment, nor does she argue one now.
As to the outside incident where someone overheard the phrase
“n*****b**** fired,” very little context is given, other than Plaintiff thought the
person fired might refer to herself. Dkt. 40 at 14. Again, Plaintiff admits that she
was not there when it happened, and the alleged discussion about the event
occurred “way before” she was investigated. Dkt. 36-1 at 77–78.
Overall, Plaintiff did not report any of these incidents to management prior
to the investigation of the incident with Buch. When Peterson met with Plaintiff in
November concerning her final warning for attendance, Peterson asked her about
rumors of a “race war” and racial tensions. Although she brought up the hair-
touching incident, Plaintiff denied she knew of any tensions and failed to inform
Peterson of any of the incidents she later raised in her December 15 statement.
Throughout the investigation of the breakroom incident, including Plaintiff’s
interview with Mortimer concerning her December 15 statement, Plaintiff
maintained she knew no witnesses other than Buch, and all their interactions were
one on one. Dkt. 36-8 at 1. Based on this record, Plaintiff has failed to show
evidence that Allegiant’s reason for termination was permeated by “such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions,”
such that a reasonable factfinder could find it “unworthy of credence.” See Gogel
v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1136 (11th Cir. 2020) (citations
omitted).
II. Retaliation under § 1981
To prove a claim of retaliation under § 1981, an employee must show: “(1)
she engaged in statutorily protected activity; (2) she suffered a materially adverse
action; and (3) there was a causal connection between the protected activity and the
adverse action.” Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1258
(11th Cir. 2012) (internal quotation marks omitted). Although § 1981 requires
discrimination based on race, “Plaintiff is not required to show that the claimed
retaliation be ‘directly due’ to Plaintiff’s race.” Johnson v. Family Practice &
Injury Ctr., Inc., 437 F. Supp. 3d 1108, 1120 (M.D. Fla. 2020) (citing Tucker v.
Talladega City Sch., 171 F. App’x 289, 295–96 (11th Cir. 2006) (per curiam)). A
failure to satisfy any of the three elements renders summary judgment appropriate.
Id. (citation omitted).
Plaintiff claims she was retaliated against because of the past complaints she
raised about Buch during the investigation. Dkt. 36-1 at 93. Plaintiff believes she
was terminated in retaliation for both making these complaints and writing to
Gallagher, who is now the CEO. Id.
To the extent any of the complaints occurred before December 2022,
Plaintiff fails to establish a causal connection between past protected activity and
her termination. Not only is such past conduct too remote in time, but the causal
chain connecting past alleged protected activity and her termination was broken.
Both the breakroom incident leading to the investigation in November and
December 2022, and the discovery of Plaintiff’s misconduct of dishonesty,
constitute superseding, intervening acts. See, e.g., Berry v. Crestwood Healthcare
LP, 84 F.4th 1300, 1312 (11th Cir. 2023) (affirming summary judgment on
retaliation—“intervening discovery of misconduct fatally undermines the probative
value of temporal proximity between her protected activity and her termination”);
Whatley v. Metro. Atlanta Rapid Transit Auth., 632 F.2d 1325, 1329 (5th Cir.
1980). As in Berry, the email from Mortimer about Plaintiff’s dishonesty does not
suggest that Allegiant terminated Plaintiff “because she called corporate” (here,
Gallagher). See Berry, 84 F.4th at 1309. Rather, when Mortimer read Plaintiff’s
email to Gallagher, she discovered that Plaintiff had withheld the truth during the
investigation of the breakroom incident.
In the email, Plaintiff stated that she was suspended when she “recently
addressed a co-worker about their racist comments.” At the meeting after she sent
the email to Gallagher, she explained that when she wrote “addressed a co-
worker,” she was referring to her confrontation of Buch two months prior to the
breakroom incident. Dkt. 41-5 at 2. As Plaintiff had already told Mortimer, she
could not name any witnesses to the past racial comments made by Buch. Nor
could Plaintiff provide any details of the incident two months before she was
suspended. Plaintiff maintained that nothing was said about race during the
breakroom incident.
Also in the email to Gallagher, Plaintiff referenced that racism and
stereotyping were “swept under the rug.” In the interview with Mortimer that
followed, Plaintiff could not think of any specific examples of racism that had been
“swept under the rug” other than the past hair touching. Yet Plaintiff did not report
any touching other than the one incident with Stacey, which was long before the
breakroom incident. Plaintiff’s two leads handled the situation, and Stacey never
bothered Plaintiff again.
Plaintiff has failed to prove that Allegiant’s desire to retaliate was the “but-
for” cause of her suspension and termination. Univ. of Tex. Sw. Med Ctr. v. Nassar,
570 U.S. 338, 352, 360 (2013). The Court concludes that there are no genuine
disputes of material fact precluding summary judgment on retaliation.
CONCLUSION
Accordingly, Defendant’s motion for summary judgment (Dkt. 33) is
GRANTED. The Clerk is directed to enter final summary judgment in favor of
Defendant and against Plaintiff, terminate any pending deadlines and motions, and
close this case.
DONE AND ORDERED at Tampa, Florida, on June 1, 2024.
WILLIAM F.
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:
Counsel of record
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