first citing Holly, 492 F.3d at 1255; then citing Batson v. Salvation Army, 897 F.3d 1320, 1328-29 (11th Cir. 2018); and Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000)
How later courts described this case
- first citing Holly, 492 F.3d at 1255; then citing Batson v. Salvation Army, 897 F.3d 1320, 1328-29 (11th Cir. 2018); and Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000)
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 21-CV-81865-REINHART
DAVID RORIE,
Plaintiff,
v.
SCHOOL BOARD OF PALM
BEACH COUNTY, FLORIDA,
Defendant.
__________________________________________/
OMNIBUS ORDER ON DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT AND PLAINTIFF’S MOTION FOR RECONSIDERATION
[ECF Nos. 102, 131]
Plaintiff David Rorie sues Defendant School Board of Palm Beach County,
Florida (“School Board”) for disability discrimination in violation of the Florida Civil
Rights Act of 1992, Fla. Stat. §760.01 et seq., (“FCRA”) and the Americans with
Disabilities Act, 42 U.S.C. §12101 et seq., (“ADA”). ECF Nos. 28, 40. Mr. Rorie claims
he is disabled due to his generalized anxiety disorder. ECF No. 110 at 6.
The School Board moved for judgment as a matter of law on Mr. Rorie’s
disability discrimination claims (“Summary Judgment Motion”). ECF No. 102.
Mr. Rorie filed a response arguing that the Summary Judgment Motion should be
denied. ECF No. 110. The School Board filed a reply. ECF No. 122. I have reviewed
all the relevant pleadings, including the respective Amended Statements of Material
Facts. ECF Nos. 106, 113.
After the Summary Judgment Motion became ripe, Mr. Rorie moved for
reconsideration of Judge Cannon’s Order granting in part and denying in part
Defendant’s Motion to Dismiss Second Amended Complaint (“MTD Order”) and to
strike this case from the trial calendar (“Motion for Reconsideration”).1 ECF No. 131.
I have reviewed Mr. Rorie’s Motion for Reconsideration and the School Board’s
response in opposition. ECF No. 135. For the following reasons, the School Board’s
summary judgment motion is GRANTED and the Motion for Reconsideration, which
is construed to be a motion for leave to amend the Second Amended Complaint, is
GRANTED.
BACKGROUND
After Mr. Rorie’s case was removed to federal court, he filed a First Amended
Complaint (“FAC”). ECF No. 10. The FAC included eleven causes of action: disability,
religion, and race discrimination in violation of the FCRA (Counts I-III), retaliation
in violation of the FCRA (Count IV), race discrimination in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. (“Title VII”) (Count V), disability
discrimination in violation of the ADA (Count VI), religion discrimination in violation
of Title VII (Count VII), retaliation in violation of Title VII (Count VIII), retaliation
in violation of the ADA (Count IX), hostile work environment in violation of Title VII
(Count X), hostile work environment in violation of the ADA (Count XI). Id. Judge
Cannon granted the School Board’s motion to dismiss the FAC, explained the
1 The parties consented the case to me on March 20, 2023. ECF No. 77.
2
deficiencies in each cause of action, and provided Mr. Rorie one final opportunity to
file a second amended pleading consistent with her order. ECF No. 25.
On February 25, 2022, Mr. Rorie filed his Second Amended Complaint (“SAC”).
ECF No. 28. The SAC included the same causes of action as the FAC for Counts I-IX
and asserted a claim for hostile work environment in violation of the FCRA, Title VII,
and the ADA (Count X) and retaliatory hostile work environment in violation of the
FCRA, Title VII, and the ADA (Count XI). Id. On August 22, 2022, Judge Cannon
granted in part the School Board’s motion to dismiss the SAC and dismissed
Counts II, III, IV, V, VII, VIII, IX, X, and XI with prejudice because Mr. Rorie failed
to cure the deficiencies noted by the Court in its previous Order. ECF No. 40. Counts I
and VI of the SAC, alleging disability discrimination in violation of the FCRA and
ADA, were the only two claims to survive the motion. Id.
On September 13, 2022, Mr. Rorie filed a motion for clarification asking the
Court to clarify, given its order dismissing his retaliation claims with prejudice,
whether he may raise additional claims of retaliation resulting from adverse
employment actions that occurred after he filed the SAC or if he would be required to
file his claims in a separate action. ECF No. 47. Mr. Rorie explained that he was
informally advised, in July of 2022, that his employment with the School Board was
terminated. Id. In late August 2022, after the Court’s order dismissing his retaliation
claims, he received a formal Letter of Termination. Id. Judge Cannon granted
Mr. Rorie’s request for clarification and stated that Mr. Rorie must exhaust his
administrative remedies before bringing the contemplated retaliation claims in court.
3
ECF No. 51. Mr. Rorie’s subsequent request to stay the proceedings pending his
exhaustion of administrative remedies related to his termination was denied on
October 21, 2022. ECF Nos. 53, 67.
SUMMARY JUDGMENT MOTION
I. LEGAL PRINCIPLES
A. Summary Judgment Standard
A party may obtain 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.” Fed. R. Civ. P. 56(a).
The parties may support their positions by citation to the record,
including inter alia, depositions, documents, affidavits, or declarations.
Fed. R. Civ. P. 56(c). An issue is genuine if “a reasonable trier of fact
could return judgment for the non-moving party.” A fact is material if it
“might affect the outcome of the suit under the governing law.” The
Court views the facts in the light most favorable to the non-moving party
and draws all reasonable inferences in its favor.
…
The moving party shoulders the initial burden of showing the absence
of a genuine issue of material fact. Once this burden is satisfied, “the
nonmoving party ‘must make a sufficient showing on each essential
element of the case for which he has the burden of proof.’” Accordingly,
the non-moving party must produce evidence, going beyond the
pleadings, and by its own affidavits, or by depositions, answers to
interrogatories, and admissions on file, designating specific facts to
suggest that a reasonable jury could find in his favor.
Rubenstein v. Fla. Bar, 72 F. Supp. 3d 1298, 1306–07 (S.D. Fla. 2014) (J. Bloom)
(citations omitted). An issue is genuine if “a reasonable trier of fact could return
judgment for the non-moving party.” Miccosukee Tribe of Indians of Fla. v. United
4
States, 516 F. 3d 1235, 1243 (11th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986)). A fact is material if it “would affect the outcome of the
suit under the governing law.” Id. (quoting Anderson, 477 U.S. at 247-48). “The mere
existence of a scintilla of evidence in support of the [non-moving party’s] position will
be insufficient; there must be evidence on which a jury could reasonably find for the
[non-moving party].” Anderson, 477 U.S. at 252. “If more than one inference could be
construed from the facts by a reasonable fact finder, and that inference introduces a
genuine issue of material fact, then the district court should not grant summary
judgment.” Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 996 (11th Cir.
1990) (citations omitted).
In sum, the School Board must first offer facts that, when viewed in the light
most favorable to Mr. Rorie, are sufficient to show that the School Board would be
entitled to judgment as a matter of law. If the School Board does so
successfully, Mr. Rorie bears the burden of producing additional undisputed evidence
showing that the School Board is not entitled to judgment at this stage or that,
contrary to the School Board’s assertion, disputed issues of material fact remain.
Federal Rule of Civil Procedure 56 and Local Rule 56.1 set forth the procedures
for pleading (and responding to) a Motion for Summary Judgment. Rule 56(c) states:
(1) Supporting Factual Positions. A party asserting that a fact . . . is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations . . . admissions, interrogatory answers, or other materials;
or
5
(B) showing that the materials cited do not establish the absence
or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A
party may object that the material cited to support or dispute a fact
cannot be presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited
materials, but it may consider other materials in the record.
Fed. R. Civ. P. 56(c). The Court has discretion to disregard a factual assertion or
dispute that is not properly supported by admissible evidence. Fed. R. Civ. P. 56(e);
S.D. Fla. L.R. 56.1(c), (d).2 A factual assertion that is not properly disputed may be
deemed admitted “provided that: (i) the Court finds that the material fact at issue is
supported by properly cited record evidence; and (ii) any exception under Fed. R. Civ.
P. 56 does not apply.” S.D. Fla. L.R. 56.1(c).
B. ADA and FCRA
The ADA prohibits discrimination by an employer against a “qualified
individual on the basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and
other terms, conditions, and privileges of employment.” 42 U.S.C. §12112(a).
“Establishing a prima facie case under the ADA requires a plaintiff to show that, at
the time of the adverse employment action, [he] had a disability, [he] was a qualified
individual, and [he] was subjected to unlawful discrimination because of [his]
2 As the Seventh Circuit aptly pointed out, “Judges are not like pigs, hunting
for truffles buried in briefs.” See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
1991).
6
disability.” United States Equal Emp. Opportunity Comm’n v. St. Joseph’s Hosp., Inc.,
842 F.3d 1333, 1343 (11th Cir. 2016) (citing Holly v. Clairson Industries, L.L.C., 492
F.3d 1247, 1255-56 (11th Cir. 2007)). “[D]isability-discrimination claims under the
FCRA are analyzed using the same framework as ADA claims.” Holly, 492 F.3d at
1255 (citing D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1224 n.2 (11th Cir.
2005)). Therefore, the ADA and FCRA claims will be considered together.
To survive a motion for summary judgment, a plaintiff must cite evidence that
would allow a reasonable jury to find that the defendant discriminated against him
because of his disability. Todd v. Fayette Cnty. Sch. Dist., 998 F.3d 1203, 1214 (11th
Cir. 2021). The plaintiff “can do this by offering either direct or circumstantial
evidence of discrimination.” Id. Where there is no direct evidence of an employer’s
intent, the Court often analyzes ADA discrimination claims under the burden-
shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Davidson v. Chspsc LLC, 861 Fed. Appx. 306, 310-311 (11th Cir. 2021) (first
citing Holly, 492 F.3d at 1255; then citing Batson v. Salvation Army, 897 F.3d 1320,
1328-29 (11th Cir. 2018); and Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir.
2000)).
The Eleventh Circuit recently clarified how the McDonnell Douglas test
applies in discrimination cases:
Step one is for the plaintiff, who establishes what McDonnell Douglas
calls a “prima facie” case of discrimination when she shows that (1) “she
belongs to a protected class,” (2) “she was subjected to an adverse
employment action,” (3) “she was qualified to perform the job in
question,” and (4) “her employer treated ‘similarly situated’ employees
7
outside her class more favorably.” McDonnell Douglas, 411 U.S. at 802,
93 S.Ct. 1817; Lewis v. City of Union City, 918 F.3d 1213, 1220–21 (11th
Cir. 2019) (en banc). The last requirement is met when the plaintiff
presents “evidence of a comparator—someone who is similarly situated
in all material respects.” Jenkins, 26 F.4th at 1249 (quotation omitted).
The prima facie showing entitles the plaintiff to a rebuttable
presumption of intentional discrimination. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 714–15, 103 S.Ct. 1478, 75 L.Ed.2d
403 (1983). The defendant then rebuts that presumption (if it can) by
offering evidence of a valid, non-discriminatory justification for the
adverse employment action. Id. at 714, 103 S.Ct. 1478. Once that
justification is offered, the presumption of discrimination falls away and
the plaintiff tries to show not only that the employer's justification was
pretextual, but that the real reason for the employment action was
discrimination. Id. at 714–15, 103 S.Ct. 1478; Burdine, 450 U.S. at 256,
101 S.Ct. 1089. This final question “merges with the plaintiff's ultimate
burden of persuading the factfinder that she has been the victim of
intentional discrimination.” Lewis, 918 F.3d at 1221 (quoting Burdine,
450 U.S. at 256, 101 S.Ct. 1089 (alterations adopted)).
Tynes v. Fla. Dep't of Juv. Just., 88 F.4th 939, 944 (11th Cir. 2023). To establish
pretext, a plaintiff must show the employer's proffered reason was false and the real
reason was discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515
(1993).
“[E]stablishing the elements of the McDonnell Douglas framework is not, and
never was intended to be, the sine qua non for a plaintiff to survive summary
judgment in an employment discrimination case.” Smith v. Lockheed-Martin Corp.,
644 F.3d 1321, 1328 (11th Cir. 2011). A plaintiff will also survive summary judgment
if he presents “a convincing mosaic of circumstantial evidence that would allow a jury
to infer intentional discrimination by the decisionmaker.” Id. (quotation marks and
internal citation omitted). A convincing mosaic may consist of “evidence that
demonstrates, among other things, (1) suspicious timing, ambiguous statements, and
8
other bits and pieces from which an inference of discriminatory intent might be
drawn, (2) systemically better treatment of similarly situated employees, and (3) that
the employer's justification is pretextual.” Lewis v. City of Union City, Ga., 934 F.3d
1169, 1185 (11th Cir. 2019) (quotation marks and ellipsis omitted).
II. UNDISPUTED FACTS
1. At all relevant times, Mr. Rorie was employed by the School District as
a Custodial Foreperson and Lead Custodian at Spanish River High School (“Spanish
River”). Defendant’s Amended Statement of Undisputed Material Facts (“DSOF”) ¶6.
2. As Custodial Foreperson, Mr. Rorie was responsible for supervising the
custodial staff and maintaining school cleanliness. DSOF ¶7; ECF No. 102-3 at 1, ¶4.
3. In 2019, Assistant Principal Joshua Wade was assigned the
responsibility of custodial and facility issues. DSOF ¶15.
4. Effective July 1, 2019, Ms. Allison Castellano became Principal of
Spanish River. DSOF ¶18.
5. On October 22, 2019, Mr. Rorie received a Memorandum from Principal
Castellano regarding “Policies/Procedures/Job Knowledge, Written/Oral
Assignments, Attendance and Poor Performance” (“October 22, 2019,
Memorandum”). DSOF ¶30; ECF No. 102-3 at 19-21. Mr. Rorie disputes the reasons
the memorandum was issued, and notes that he refused to sign the memorandum,
but does not dispute that he received the memorandum. Plaintiff’s Amended
Statement of Material Facts (“PSOF’) ¶30.
6. On November 1, 2019, Mr. Rorie was diagnosed with generalized anxiety
9
disorder. PSOF ¶9; ECF Nos. 113-3; 113-34.
7. On December 2, 2019, Mr. Rorie received a Memorandum from Principal
Castellano regarding “Policies/Procedures/Job Knowledge, Written/Oral
Assignments, Attendance and Poor Performance” (“December 2, 2019,
Memorandum”). DSOF ¶31; ECF No. 102-3 at 22-24. Mr. Rorie disputes the reasons
the memorandum was issued, and notes that he refused to sign the memorandum,
but does not dispute that he received the memorandum. PSOF ¶31.
8. On December 16, 2019, Principal Castellano issued a Directive for
Immediate Action to Mr. Rorie (“December 16, 2019, Directive”). DSOF ¶32; ECF
No. 102-3 at 25. Mr. Rorie disputes the reasons the directive was issued, and notes
that he refused to sign the directive, but does not dispute that he received the
directive. PSOF ¶32.
9. On December 17, 2019, Mr. Rorie submitted a Leave Request Form to
Ms. Lisa Core, Confidential Secretary, for intermittent leave to care for his wife.
DSOF ¶45; ECF No. 102-3 at 26-27. Ms. Core forwarded the form to Principal
Castellano. DSOF ¶46; ECF No. 102-3 at 1, ¶10. Principal Castellano signed the form
on December 18, 2019. DSOF ¶46; ECF No. 102-3 at 26. Ms. Core did not provide
Principal Castellano with any medical information attached to Mr. Rorie’s Leave
Request Form. DSOF ¶47.
10. On January 6, 2020, Principal Castellano issued a Directive for
Immediate Action to Mr. Rorie (“January 6, 2020, Directive”). DSOF ¶33; ECF
No. 102-3 at 29. Mr. Rorie disputes the reasons the directive was issued, and notes
10
that he refused to sign the directive, but does not dispute that he received the
directive. PSOF ¶33.
11. On January 6, 2020, Mr. Rorie received a Memorandum from Principal
Castellano regarding “Performance Deficiencies” that directed him to meet with the
Performance Standards manager and Principal Castellano on one of two proposed
dates (“January 6, 2020, Memorandum”). DSOF ¶34; ECF No. 102-3 at 30.3
12. On January 7, 2020, Mr. Rorie received a Memorandum from Assistant
Principal Wade regarding “Professional Judgment” (“January 7, 2020,
Memorandum”). DSOF ¶35; ECF No. 102-3 at 31-32. Mr. Rorie disputes the reasons
the memorandum was issued, and notes that he refused to sign the memorandum,
but does not dispute that he received the memorandum. PSOF ¶35.
13. On January 9, 2020, Mr. Rorie, Principal Castellano, Assistant Principal
Wade, Union Representative Ronald LaPorte, and Human Resources Manager Kevin
Butanowicz attended a meeting to discuss Mr. Rorie’s performance. DSOF ¶36. On
the day of the meeting, Mr. Rorie received a Memorandum of Assistance regarding
“Job Performance” (“January 9, 2020, Memorandum of Assistance”). DSOF ¶37; ECF
No. 102-3 at 33-37. Mr. Rorie disputes the reasons the memorandum was issued, and
notes that he refused to sign the memorandum, but does not dispute that he received
the memorandum or that he attended the meeting. ¶36.
3 Mr. Rorie states that this fact is disputed but provides no evidence to support his
position. PSOF ¶34. Because the School Board supports this fact by properly cited
record evidence and no exception under Fed. R. Civ. P. 56 applies, the fact is deemed
admitted. See S.D. Fla. L.R. 56.1(c).
11
14. On January 14, 2020, Mr. Rorie received a Notice to Meet, directing him
to attend a mandatory meeting on January 16, 2020, with Principal Castellano to
discuss a schedule change. DSOF ¶38; ECF No. 102-3 at 40.
15. On August 27, 2020, Mr. Rorie attended a meeting with Assistant
Principal Wade “to address policies and procedures surrounding COVID-19 cleaning
procedures and paperwork.” DSOF ¶39; ECF No. 102-3 at 41-42. He was
subsequently provided notes purportedly summarizing the conference (“August 27,
2020, Conference Notes”). Id.
16. On October 6, 2020, Mr. Rorie received a Memorandum from Assistant
Principal Wade regarding “Policies/Procedures Self-Management, Job Knowledge,
Written/Oral Assignments and Insubordination” (“October 6, 2020, Memorandum”).
DSOF ¶40; ECF No. 102-3 at 43-45. Mr. Rorie disputes the reasons the memorandum
was issued, and notes that he refused to sign the memorandum, but does not dispute
that he received the memorandum. PSOF ¶40.
17. On February 3, 2021, Mr. Rorie received a “Verbal Reprimand with
Written Notation” for “failure to fulfill the responsibilities of a Custodial Foreperson”,
“Poor Judgment/modeling unprofessional behavior,” and “insubordination” (“Verbal
Reprimand with Written Notation”). DSOF ¶41; ECF No. 102-3 at 47-48. Mr. Rorie
disputes the reasons the Verbal Reprimand with Written Notation was issued, and
notes that he refused to sign the reprimand, but does not dispute that he received the
reprimand. PSOF ¶41.
18. On February 14, 2021, Mr. Rorie requested and received a leave of
12
absence without pay. DSOF ¶48; ECF No. 102-3 at 49. Mr. Rorie was granted
extensions of his leave through June 30, 2022. DSOF ¶¶50-52. On June 20, 2022,
Mr. Rorie was notified that his request for an extension of his leave for 2022-2023
was denied because he exhausted all of his available leave. DSOF ¶53; ECF No. 102-3
at 55.4 Principal Castellano approved Mr. Rorie’s requests for leaves of absence. ¶57.
III. PARTIES ARGUMENTS
The School Board argues that it is entitled to summary judgment because
Mr. Rorie has failed to present prima facie evidence of disability discrimination. ECF
No. 102 at 4-8. Specifically, the School Board argues Mr. Rorie has failed to show
that: (1) the decisionmakers had knowledge of his disability, (2) he suffered an
adverse employment action,5 and (3) any adverse employment action was taken
because of his disability. ECF Nos. 102 at 4-8; 122 at 6-11. Finally, the School Board
argues that Mr. Rorie has failed to present record evidence that its non-
discriminatory reason for the alleged adverse actions – Mr. Rorie’s performance
deficiencies – is a pretext for discrimination. ECF Nos. 102 at 7-8; 122 at 8-9.
Mr. Rorie responds that genuine issues of material fact exist as to whether he
has presented a prima facie case of disability discrimination and whether the School
4 Mr. Rorie states that this fact is disputed but provides no evidence to support his
position. PSOF ¶53. Because the School Board supports this fact by properly cited
record evidence and no exception under Fed. R. Civ. P. 56 applies, the fact is deemed
admitted. See S.D. Fla. L.R. 56.1(c).
5 The School Board contends that the SAC alleges only two adverse employment
actions; Mr. Rorie received criticism and write-ups. ECF No. 102 at 1.
13
Board’s reason for its actions was a pretext for discrimination. ECF No. 110 at 4-13.
Mr. Rorie argues that he suffered from the following acts that constitute adverse
employment action: termination, increased scrutiny, “write ups,” shift changes, and
constantly shifting duties and responsibilities. ECF No. 110 at 7-11.
The School Board replies that Mr. Rorie’s allegations regarding increased
supervision, performance write ups, and changes to work assignments do not amount
to adverse employment action. ECF No. 122 at 3. The School Board further replies
that Mr. Rorie’s alleged termination cannot be considered an adverse employment
action because the SAC did not allege termination as an adverse employment action
and Mr. Rorie did not exhaust his administrative remedies as to that allegedly
discriminatory act. ECF No. 122 at 4.
IV. DISCUSSION
The Court assumes, without deciding, that Mr. Rorie has satisfied the first two
elements of a prima facie case – that he is disabled and is a qualified individual. To
satisfy the third element – discrimination because of his disability – Mr. Rorie must
show he has suffered an adverse employment action because of his disability.
See Sloan v. Miami Dade Fire Rescue, No. 18-21517-CIV, 2019 WL 2869067, at *3
(S.D. Fla. July 3, 2019) (J. Scola); see also Doe v. Dekalb Cnty. School Dist., 145 F.3d
1441, 1445, 1451 (11th Cir. 1998) (citation omitted).
To show adversity, “[a]n ADA plaintiff must demonstrate that a reasonable
person in his position would view the employment action in question as adverse.” Doe,
145 F.3d at 1449. “Any adversity must be material.” Id. “An employment action is
14
considered ‘adverse’ only if it results in some tangible, negative effect on the plaintiff's
employment.” Martin v. Eli Lilly & Co., 702 Fed. Appx. 952, 956 (11th Cir. 2017)
(quoting Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1261 (11th Cir. 2001)). “A
tangible employment action constitutes a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.” Martin, 702
Fed. Appx. at 956 (first quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761
(1998); then citing Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1242 (11th Cir.
2001), overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53 (2006)).
Notably, when evaluating whether an action impacted the “terms, conditions,
and privileges” of employment within the meaning of the ADA, “courts apply the same
precedents used to analyze the adverse actions of Title VII claims.” Hargett v. Fla.
Atl. Univ. Bd. of T., 219 F. Supp. 3d 1227, 1238-39 (S.D. Fla. 2016) (J. Middlebrooks)
(citing Doe, 145 F.3d 1447-48). “Those precedents hold that while Title VII ‘does not
require proof of direct economic consequences in all cases, the asserted impact cannot
be speculative and must at least have a tangible adverse effect on the plaintiff's
employment.’” Hargett, 219 F. Supp. 3d at 1238-39 (citing Davis, 245 F.3d at 1239).
Moreover, an employer cannot discriminate against an employee because of his
disability unless the decisionmaker for an alleged adverse employment action had
knowledge of the disability. Ferreira-Silva v. AW Pro. & Maint. Serv., Inc., No. 21-
CV-61442, 2022 WL 2438156, at *5 (S.D. Fla. June 5, 2022) (J. Moore) (“[I]t is well-
15
established that ‘[a]n employee cannot be fired because of a disability unless the
decisionmaker has actual knowledge of the disability.’”) (quoting Campbell v. Boies,
Schiller, Flexner, LLP, 543 F. Supp. 3d 1334, 1342 (S.D. Fla. 2021) (J. Moore)).
The Court first addresses whether there is a genuine dispute of material fact
regarding whether the relevant decisionmakers had knowledge of Mr. Rorie’s
disability. Then, the Court addresses whether Mr. Rorie has presented sufficient
evidence of an adverse employment action.
A. Knowledge of Disability
As an initial matter, the Summary Judgment Motion identifies Principal
Castellano as the decisionmaker for the adverse actions alleged in the SAC. ECF
No. 102 at 1, 5. However, the evidence submitted in support of the motion reflects
that some of the alleged adverse actions, such as a few of Mr. Rorie’s write-ups, were
issued by Assistant Principal Wade rather than Principal Castellano. Because the
School Board focuses on Principal Castellano as the decisionmaker, the majority of
its arguments only address Principal Castellano’s knowledge of Mr. Rorie’s disability.
In support of its claim that Mr. Rorie failed to show that a decisionmaker had
knowledge of his disability, the School Board cites the following testimony from
Mr. Rorie’s deposition:
Q: My question is: Who at Spanish River High School did you tell you
had a disability?
A. Tell that I have a disability?
Q. Yes, sir.
16
A. I don't know if nobody know I have a disability.
Q. Okay.
A. Yeah, I don't.
ECF No. 102 at 5 (citing ECF No. 102-2 at 8, page 28, lines 15-22). The School Board
also submitted an affidavit by Principal Castellano in which she swears that she was
not aware that Mr. Rorie had a disability. ECF Nos. 102 at 5; 102-3 at 2.
In response, Mr. Rorie cites his deposition testimony stating that Principal
Castellano was aware of his generalized anxiety disorder and that he was seeing a
therapist, because he sent paperwork to her through one or more email. ECF No. 110
at 6 (citing ECF No. 102-2 at 18, page 68, lines 13-25). In addition, he claims that the
School Board admitted in response to a Request for Admission (“RFA”) that it had
notice of his disability. ECF No. 110 at 6. The RFA at issue said, “Admit or deny that
the Defendant was aware of the Plaintiff’s disability.” ECF No. 113-1 at 7. The School
Board’s response said, “Admitted.” ECF No. 113-2 at 4. Next, Mr. Rorie cites his
2021 request for leave, based on his generalized anxiety disorder, and his 2022
request for “ADA accommodations,” as evidence that the School Board was on notice
of his disability. ECF No. 110 at 6 (citing ECF Nos. 113-5, 113-33). Finally, Mr. Rorie
submitted a declaration stating that he told Principal Castellano and Assistant
Principal Wade that he was undergoing treatment for his anxiety at some unspecified
time after his diagnosis in November 2019. ECF No. 113-34 at 2. The declaration also
states that Principal Castellano and Assistant Principal Wade were on notice of his
disability after he filed his Amended Charge of Discrimination (“Amended Charge”)
17
around January 2020. Id.6
In reply, the School Board argues that Mr. Rorie’s declaration and unsupported
deposition testimony that he told Principal Castellano about his disability are
insufficient to meet his burden to refute his other testimony that he did not know if
anyone knew he had a disability and the School Board’s proffered evidence that
Principal Castellano was unaware of his disability. ECF No. 122 at 6-7. In addition,
the School Board contends that it admitted being on notice of Mr. Rorie’s disability in
the RFA response because its employee, Wanda Cummings, processed Mr. Rorie’s
requests for leave and had notice of his disability. Id. Finally, the School Board argues
that Mr. Rorie has failed to submit record evidence that Principal Castellano or
Assistant Principal Wade saw his Amended Charge or knew of its contents. Id.
Because the School Board’s RFA response does not specify who at the School
Board had knowledge of Mr. Rorie’s disability, or when the School Board acquired
this knowledge, it appears to be a general admission of notice. Viewing the evidence
in the light most favorable to Mr. Rorie, the School Board’s RFA response, together
with Mr. Rorie’s declaration, present a genuine dispute of material fact regarding
whether Principal Castellano and Assistant Principal Wade had knowledge of his
disability at the time of some of the alleged adverse employment actions. Based on
the evidence presented by Mr. Rorie, the earliest Principal Castellano or Assistant
Principal Wade learned of his disability was after his diagnosis in November 2019.
6 Although the Amended Charge lacks a legible date, the School Board does not
challenge Mr. Rorie’s statement that the Amended Charge was filed in January 2020.
18
B. Mr. Rorie cannot pursue his disability discrimination claims based on his
alleged termination because his termination is not identified in the SAC as an
adverse employment action.
Mr. Rorie raised his termination as the basis for his disability discrimination
claims for the first time in response to the Summary Judgment Motion. The SAC does
not allege that Mr. Rorie’s termination, which occurred after the SAC was filed,
constitutes an adverse employment action. “‘[C]laims must be presented in the
[c]omplaint’ and ‘a plaintiff may not wait until the response to summary judgment to
raise new claims.’” See Bankston v. Sewon America, Inc., No. 15-CV-00207, 2018 WL
1779451, at *11 n.25 (N.D. Ga. Jan. 31, 2018) (first quoting Ginwright v. Dep’t of
Revenue for Ala., No. 12-CV-473, 2014 WL 2535185, at *9 n.5 (M.D. Ala. June 5,
2014); then citing Tyler v. Kia Motors Mfg. Ga. Inc., No. 14-CV-00147, 2016 WL
9663168, at *16 n.43 (N.D. Ga. Aug. 1, 2016), report and recommendation adopted,
2016 WL 9651774 (N.D. Ga. Sept. 1, 2016), aff’d, 702 Fed. Appx. 945 (11th Cir. 2017);
and Robert v. Archbold Med. Ctr., 220 F. Supp. 3d 1333, 1346 (M.D. Ga. 2016)), report
and recommendation adopted, 2018 WL 1783167 (N.D. Ga. Mar. 9, 2018).
Accordingly, the Court will not consider Mr. Rorie’s termination as an adverse
employment action.7 See id. (declining to consider new adverse employment actions
7 Although not mentioned in Mr. Rorie’s response to the Summary Judgment Motion,
the Court notes that Mr. Rorie’s Amended Statement of Facts also claims that an
alleged demotion in February 2021 constitutes an adverse employment action. ECF
No. 113 at 12, ¶41. Because the demotion is not alleged in the SAC, the Court will
not consider the demotion as an adverse employment action. See Bankston, 2018 WL
1779451, at *11 n.25.
19
alleged in plaintiff’s response in opposition to motion for summary judgment because
the actions were not pled in the complaint).
Because the Court declines to consider Mr. Rorie’s termination on the basis
that it is not presented in the complaint, rather than based on whether Mr. Rorie has
exhausted his administrative remedies, the Court need not evaluate Mr. Rorie’s
undeveloped argument that the “Charge of Discrimination period” was tolled in this
case. See ECF No. 110 at 7-8.
C. The School Board’s alleged increased scrutiny of Mr. Rorie does not constitute
an adverse employment action.
Mr. Rorie argues that Assistant Principal Wade’s increased scrutiny of his
performance, at Principal Castellano’s direction, constitutes an adverse employment
action. ECF No. 110 at 2, 8-9. This argument fails for at least two reasons.
First, Mr. Rorie’s own allegations suggest that the School Board increased
scrutiny of his performance for a reason other than his disability. Mr. Rorie argues
that the increased scrutiny occurred because he complained to the School Board in
December 2018 and October 2019 about the conduct of a custodial trainer, Mr. Greco.
ECF Nos. 110 at 2; 113-13. Mr. Rorie’s complaint about Mr. Greco did not include any
allegations related to Mr. Rorie’s disability. Therefore, accepting Mr. Rorie’s
allegations as true, the School Board’s increased scrutiny of Mr. Rorie was not
because of his disability.
Second, the evidence presented by Mr. Rorie shows that the increased scrutiny
of his performance predates both the onset of his disability, and the date
20
Principal Castellano and Assistant Principal Wade allegedly became aware of his
disability. The undisputed record reflects that the increased scrutiny of Mr. Rorie’s
performance began in the Summer of 2019. See ECF Nos. 113-10 ¶4(a); 113-34 ¶8.
Mr. Rorie was not diagnosed with anxiety until approximately three months later on
November 1, 2019. ECF Nos. 110 at 2; 113-3. The earliest Principal Castellano and
Assistant Principal Wade became aware of Mr. Rorie’s disability was after he was
diagnosed with anxiety and after the increased scrutiny began. ECF No. 113-34 at 2.
Even viewing the record in the light most favorable to Mr. Rorie, the record
does not support an inference that the School Board’s decision to increase scrutiny of
Mr. Rorie was because of his disability because no decisionmaker had knowledge of
his disability when the increased scrutiny began. See Ferreira-Silva, 2022 WL
2438156, at *5. Accordingly, increased scrutiny cannot serve as the adverse
employment action that supports Mr. Rorie’s disability discrimination claims.
D. Mr. Rorie’s write ups do not constitute adverse employment action.
Mr. Rorie claims that the write ups he received constitute adverse employment
action. He does not identify the write ups that he claims constitute adverse
employment action, much less explain how any of the write ups – either individually
or collectively – had a material effect on his employment. The Court assumes for the
purposes of the Summary Judgment Motion that the write ups at issue are the ten
memorandums, directives for immediate action, Verbal Reprimand with Written
Notation, and conference notes that were issued to Mr. Rorie between October 22,
2019, and February 3, 2021, and are attached to the Summary Judgment Motion
21
(“Write Up Documents”). PSOF ¶¶ 22, 30-33, 35-36, 39-41, 43; ECF No. 102-3 at
19-25, 29-38, 41-48. The Write Up Documents scold Mr. Rorie for various performance
deficiencies including demonstrating poor judgment, failure to follow certain
attendance procedures, and failure to properly manage and supervise his
subordinates.8 Id.
Written reprimands are not considered adverse employment actions unless the
reprimands resulted in a “significant change in employment status, such as hiring,
firing, failing to promote, [or] reassignment with significantly different
responsibilities." See Harris v. Universal Logistics, No. 18-CV-01270, 2018 WL
6095197, at *5 (N.D. Ala. Nov. 21, 2018) (citing Davis, 245 F.3d at 1239) (holding that
three written reprimands/corrective action forms did not constitute adverse
employment actions in ADA retaliation case where the reprimands showed no
adverse consequence and plaintiff did not receive further discipline, reduction in pay,
inability to receive future pay raises, or other adverse action as a result of the
reprimands and received a subsequent rate raise); see also Medearis v. CVS
Pharmacy, Inc., 646 Fed. Appx. 891, 898 (11th Cir. 2016) (holding that Title VII
plaintiff’s receipt of “several written reprimands” did not constitute an adverse
employment action where the reprimands were not made part of plaintiff’s personnel
file and plaintiff offered no evidence that the reprimands resulted in a tangible
8 As stated previously, Mr. Rorie refused to sign the Write Up Documents and
challenges the veracity of the allegations in the documents. ECF Nos. 110 at 3; 102-3
at 19-25, 29-38, 41-48; PSOF ¶¶22, 30-33, 35-36, 39-41, 43. However, he does not
dispute that the documents were issued to him.
22
consequence); but see Burdette v. Fed. Express Corp., No. 97-CV-2935, 1999 WL
1788188, at *8 (N.D. Ga. Nov. 8, 1999) (finding written reprimand to be an adverse
employment action in ADA retaliation case without analyzing whether reprimand
had material impact on employment). In the context of a Title VII discrimination
case, the Eleventh Circuit has explained:
Employer criticism, like employer praise, is an ordinary and appropriate
feature of the workplace. Expanding the scope of Title VII to permit
discrimination lawsuits predicated only on unwelcome day-to-day
critiques and assertedly unjustified negative evaluations would
threaten the flow of communication between employees and supervisors
and limit an employer's ability to maintain and improve job
performance. Federal courts ought not be put in the position of
monitoring and second-guessing the feedback that an employer gives,
and should be encouraged to give, an employee. Simply put, the loss of
prestige or self-esteem felt by an employee who receives what he believes
to be unwarranted job criticism or performance review will rarely—
without more—establish the adverse action necessary to pursue a claim
under Title VII’s anti-discrimination clause.
Id.; see also Kristoff-Rampata on behalf of Lombardo v. Publix Super Markets, Inc.,
No. 15-CV-01324, 2016 WL 11431493, at *5 (M.D. Fla. Nov. 17, 2016) (applying Davis’
rationale to ADA retaliation action and finding general criticism and increased
supervision insufficient to establish an adverse employment action in the form of a
constructive discharge).
As an initial matter, the October 22, 2019, Memorandum was issued before
Mr. Rorie alleges anyone at the School Board knew about his disability. Therefore,
this memorandum cannot serve as an adverse employment action. See Ferreira-Silva,
2022 WL 2438156, at *5.
The remaining Write Up Documents are likewise insufficient to constitute
23
adverse employment action because Mr. Rorie has failed to show that the documents
resulted in any impact on his employment, much less a material impact that a
reasonable person in his position would consider adverse. The SAC claims that the
Write Up Documents resulted in Mr. Rorie experiencing anxiety “which resulted in
recurrent mental breakdowns and extreme stress.” ECF No. 28 at 8, ¶48. It further
claims Mr. Rorie “has been deprived of rights, has been exposed to ridicule and
embarrassment, and has suffered emotional distress and damage.” Id. at 10, 19, ¶¶65,
95. Even assuming Mr. Rorie presented evidence of these allegations, these
allegations, without more, do not suggest that a reasonable person in Mr. Rorie’s
position would consider the Write Up Documents adverse. Indeed, an employee is not
guaranteed a stress-free working environment. See Kristoff-Rampata, 2016 WL
11431493, at *5 (“Plaintiff is not guaranteed a stress-free working environment.”)
(citation omitted).
Notably, all but two of the remaining Write Up Documents state that Mr. Rorie
may be subjected to future discipline if he continued to engage in the conduct
discussed in those documents and that the documents could be used to support a
disciplinary case against him.9 However, Mr. Rorie does not point to any evidence
that shows that the documents resulted in further discipline. In addition, some of the
9 The January 6, 2020, Memorandum and the August 27, 2020, Conference Notes do
not mention the potential for future discipline based on the document. ECF No. 102-3
at 30, 41-42. However, the January 6, 2020, Memorandum states that Mr. Rorie
would be subjected to discipline if he failed to attend a meeting about his performance
deficiencies.
24
Write Up Documents are referenced in other documents in the record, such as
subsequent Write Up Documents or Mr. Rorie’s performance evaluations.10 However,
Mr. Rorie does not present any evidence or argument that these subsequent
documents resulted in a negative impact on his employment such that the underlying
Write Up Documents should be characterized as adverse. Accordingly, Mr. Rorie has
failed to satisfy his burden to show by an objective standard that the Write Up
Documents, either individually or collectively, constitute adverse employment action.
Davis, 245 F.3d at 1242 (stating that a Title VII discrimination claim “rarely may be
predicated merely on employer's allegedly unfounded criticism of an employee's job
performance, where that criticism has no tangible impact on the terms, conditions, or
privileges of employment” and finding that two job performance memoranda did not
constitute adverse employment action); see also Hargett, 219 F. Supp. 3d at 1239-40
(finding negative performance review, supplemented by evaluation addendum and
10 The December 2, 2019, Memorandum, December 16, 2019, Directive, January 6,
2020, Directive, January 7, 2020, Memorandum, August 27, 2020, Conference Notes,
and the October 6, 2020, Memorandum were subsequently referenced in either the
January 9, 2020, Memorandum of Assistance, one of Mr. Rorie’s three
“unsatisfactory” performance evaluations between January 6, 2020, and June 17,
2021, or both. ECF No. 102-3 at 13-16, 33-37. The August 27, 2020, Conference Notes
were also referenced in the October 6, 2020, Memorandum. Id. at 43.
Although Mr. Rorie states that he received unidentified “unfair performance
evaluations,” he does not allege that any of his performance evaluations were adverse
employment actions. See e.g., ECF No. 110 at 3, 8. Nor does he present any evidence
or argument that these performance evaluations had any effect on his employment.
Notably, “[n]egative performance evaluations, standing alone, do not constitute
adverse employment action.” See Martin, 702 Fed. Appx at 956 (quoting Lucas, 257
F.3d at 1261).
25
Performance Improvement Plan, did not qualify as a materially adverse action where
plaintiff failed to show that the negative review had a tangible impact on the terms,
conditions, and privileges of her employment).
E. Mr. Rorie’s alleged schedule changes do not constitute adverse employment
action.
Mr. Rorie argues that his “schedule changes” constitute adverse employment
action. ECF No. 110 at 11-12. The SAC alleges that Principal Castellano changed
Mr. Rorie’s shift hours three times within a six-month period. ECF No. 28 at 4, ¶30.
Mr. Rorie does not point to any evidence that his schedule was changed. Nor does he
explain why any alleged change to his schedule was substantial enough to constitute
an adverse employment action.
The School Board submitted evidence that Mr. Rorie’s schedule was changed
one time. ECF No. 102 at 6 (citing ECF No. 102-3 at 40). According to a Notice to
Meet issued to Mr. Rorie on January 14, 2020, Mr. Rorie’s duty hours would change
to 3:00 pm-11:30 pm, Monday-Friday, effective January 21, 2020. ECF No. 102-3 at
40. Neither party has pointed to evidence of Mr. Rorie’s schedule before this change.
Nor is there any evidence that suggests that this particular schedule change should
be characterized as adverse. Indeed, Mr. Rorie does not argue that the schedule
change resulted in a loss of benefits, decreased salary, or otherwise changed the
terms, conditions, and privileges of his employment in such a manner that a
reasonable person in his position would view the schedule change as adverse. See Doe,
145 F.3d at 1448-4; see also Burdette, 1999 WL 1788188, at *8 (finding that ADA
26
retaliation plaintiff did not satisfy his burden to show a shift change from morning to
evening constituted an adverse employment action where no evidence existed by
which to characterize the shift change as adverse); Marshall v. Aryan Unlimited
Staffing Sol./Fanueil Inc./MC Andrew & Forbs Holding, No. 12-81404, 2013 WL
836990, at *3 (S.D. Fla. Mar. 6, 2013) (J. Hurley) (finding that an alleged transfer of
a plaintiff to a night shift, standing alone, does not “describe an ‘adverse action’ which
is actionable under Title VII”) (citations omitted). Accordingly, Mr. Rorie has failed
to satisfy his burden to show by an objective standard that any changes to his
schedule constitute adverse employment action.
F. Mr. Rorie’s alleged change in duties and responsibilities does not constitute
adverse employment action.
Mr. Rorie argues that changes to his duties and responsibilities constitute
adverse employment action. ECF No. 110 at 9-12. Although not clearly articulated to
be changes in duties and responsibilities, the SAC alleges that Principal Castellano
required Mr. Rorie to change the cleaning assignments for his subordinates and
requested he make cleaning schedules. ECF No. 28 at 7-8, ¶¶41, 46. In support of his
claim that his duties and responsibilities were “constant[ly] changing and shifting,”
Mr. Rorie cites screenshots of two emails.11 The first screenshot, dated December 18,
2019, says:
11 Neither party provided the full emails for the Court’s consideration.
27
On Wed, Dec 18, 2019 at 7:06 AM David Rorie <david.rorie@palmbeachschools.org> wrote:
The person who usually cleans the daycare is Llulys Vidal. She has been out of work for almost two weeks. She is
coming back on Thursday. | had the Custodians group clean. We are still missing three Custodians with no help or
replacement. | generally help the Custodians, but since Ms. Castellano's second letter, | am unable. She requires me to
check on each Custodian and how they clean every half an hour. | do this untij my shift is over at 8:30 pm. If time
permits me to, | will assist with changing light bulbs and with group cleaning so they can get back to their areas. | would
like to stay late to help the Custodians get their job duties completed, but since Ms. Castellano had a problem with my
time | am unable to.
ECF No. 110 at 9. The second screenshot, dated September 29, 2020, says:
-__—- Forwarded message ——-—
From: Joshua Wade <joshua.wade@palmbeachschools.org>
Date: Tue, Sep 29, 2020 at 6:30 AM
Subject: Re: Concerns
To: Dannie Bolden Il <dannie.boldenii@palmbeachschools.org>
Cc: David Rorie <david.rorie@palmbeachschools.org>, Jose Pillot <jose_pillot@palmbeachschools.org>
David,
Per the Custodial Foreperson IV job description (posted below) all duties assigned to you are
commensurate with your position. According to district custodial/maintenance leadership (i-e. Dan Bolden
and Jose Pillot), head custodians around the district clean areas as assigned each shift. As we discussed
in the 8/27/2020 meeting, Covid paperwork and follow-through is a non-negotiable. We also discussed
(multiple times) the new custodial area map and how the smaller cleaning areas allow more time to ensure
proper cleaning and sanitizing. Using the district measure of 12-15 minutes per room to properly clean,
your area can be cleaned in approximately 2.5 hours. This leaves you with approximately 5.5 hours each
shift to complete the other requirements of your position.
As to your assertion that you are “being set up to fail” and that there is a plan to “get you fired”, this
accusation is baseless and false. | am concerned that you are asking me to meet with you again to discuss
items we have already discussed and I've walked you through step by step. We discussed this on 8/13,
8/27 and 9/15 in great detail. While | will certainly do it again, below | would like to remind you of the
multitude of support I have provided you over the past year.
ECF No. 110 at 10. Mr. Rorie does not point to any evidence regarding his duties and
responsibilities before these alleged changes. He likewise fails to provide evidence or
otherwise explain why any alleged changes to his duties and responsibilities had a
material effect on his employment or were otherwise sufficiently significant that a
reasonable person in his position would view the changes as adverse. Without
evidence regarding Mr. Rorie’s original responsibilities, or argument from Mr. Rorie
regarding how his duties have changed and why the alleged changes resulted in some
material effect on his employment, it is impossible for the Court to determine whether
28
the alleged changes constitute adverse action. See Long v. Potter, No. 04-CV-2888,
2006 WL, 8432674, at *10 (N.D. Ga. Dec. 1, 2006) (finding that Title VII plaintiff
failed to point to “sufficient evidence in the record that the reassignment of duties
was so undesirable that it constituted a material and significant change in duties or
responsibilities”), report and recommendation adopted, 2007 WL 9701254 (N.D. Ga.
Jan. 26, 2007); see also Diaz v. AIG Marketing, Inc., 396 Fed. Appx. 664, 667 (11th
Cir. 2010) (citing Davis, 245 F.3d at 1244) (“[C]hanges to an employee's work
assignments are rarely sufficiently ‘adverse’ to warrant scrutiny under the anti-
discrimination laws.”). Accordingly, Mr. Rorie has failed to satisfy his burden to show
by an objective standard that the School Board’s changes to his duties and
responsibilities constitutes adverse employment action.
G. The alleged adverse employment actions do not collectively constitute adverse
employment action.
To the extent Mr. Rorie argues that the above alleged adverse employment
actions collectively constitute an adverse employment action, that argument fails for
the same reason the majority of his individual allegations fail: there is no evidence
that the actions had a material impact on his employment such that a reasonable
person in his position would view the actions collectively as adverse. Because
Mr. Rorie has failed to demonstrate that he suffered an adverse employment action,
he fails to establish a necessary element for his disability discrimination claims and
the School Board is entitled to summary judgment. See Sloan, 2019 WL 2869067,
at* 3 (citing Martin, 702 Fed. Appx. at 956-59) (granting summary judgment on ADA
29
discrimination claim where plaintiff failed to demonstrate that she suffered an
adverse employment action). The Court need not evaluate the parties’ remaining
arguments because Mr. Rorie’s failure to demonstrate that he suffered an adverse
employment action is dispositive.
MOTION FOR RECONSIDERATION
On December 7, 2023, Mr. Rorie filed a Motion for Reconsideration of the MTD
Order. ECF No. 131. In relevant part, the MTD Order dismissed Mr. Rorie’s FCRA
and Title VII race discrimination claims (“Race Discrimination Claims”) and FCRA,
Title VII, and ADA retaliation claims (“Retaliation Claims”) with prejudice for failure
to allege a sufficient adverse employment action.12 ECF No. 40.
Mr. Rorie argues the Court should reconsider the dismissal of his Race
Discrimination and Retaliation claims with prejudice because his termination
– which constitutes a sufficient adverse employment action – qualifies as newly
acquired evidence and to prevent manifest injustice. ECF No. 131 at 5-7. He says that
he did not receive formal notice of his termination until after the MTD Order was
issued, despite the School Board terminating his employment before that date. Id.
at 2-3. After receiving notice of his termination, he filed an additional charge of
discrimination with the EEOC. Id. at 3. On December 7, 2023, he exhausted his
administrative remedies and received a Notice of Right to Sue based on his
12 Mr. Rorie does not request reconsideration of the Court’s dismissal of his religious
discrimination and hostile work environment claims. ECF No. 131 at 4.
30
termination. Id. at 3-4. He says his request is timely because he filed the motion for
reconsideration the same day he received his Notice of Right to Sue.13 Id. at 3-4, 7.
The School Board argues that Mr. Rorie fails to satisfy the standard for
reconsideration. ECF No. 135 at 1, 3-4. It further argues that permitting Mr. Rorie
to amend the complaint to revive his previously dismissed claims would be “highly
prejudicial” to the School Board, would only delay resolution of the case, and would
require additional discovery. Id. at 1, 4-5. Specifically, the School Board argues that
allowing Mr. Rorie to amend his claims “at the eleventh hour,” less than one month
before trial and after discovery has closed, would unduly prejudice its “ability to
present its defense.” Id. at 4.
The Court construes the Motion for Reconsideration as a motion for leave to
amend the SAC to assert race discrimination and retaliation claims based on the
December 7, 2023, right-to-sue letter. If the motion is denied, Mr. Rorie will have to
file a new lawsuit to present these claims. Requiring him to file a new lawsuit, pay
an additional filing fee, and serve the School Board would not advance the just,
speedy, and inexpensive resolution of the disputes between Mr. Rorie and the School
Board. See Fed. R. Civ. P. 1. Because the Summary Judgment Motion is being
granted, the SAC will be dismissed with prejudice and the current trial date will be
cancelled. The School Board’s ability to defend against, and achieve finality for, the
13 Mr. Rorie also highlights that he promptly moved to stay the case pending
exhaustion of administrative remedies after he discovered his termination. As stated
previously, that motion was denied.
31
existing claims will therefore not be unduly prejudiced by allowing Mr. Rorie to assert
new claims. For the above stated reasons, Mr. Rorie may amend the complaint to
assert race discrimination and retaliation claims based on his termination. See Fed.
R. Civ. P. 15(a)(2) (“The court should freely give leave when justice so requires.”).
32
CONCLUSION
WHEREFORE, it is ORDERED and ADJUDGED as follows:
1. Defendant’s Motion for Summary Judgment (ECF No. 102) is GRANTED.
Mr. Rorie’s disability discrimination claims (Counts I and VI) based on the
School Board’s increased scrutiny of his performance, modification of his
duties, responsibilities, or schedule, and the Write-Up Documents are
DISMISSED WITH PREJUDICE.
2. Plaintiff's Motion for Reconsideration, construed to be a motion for leave to
amend the SAC to assert race discrimination and retaliation claims based
on Mr. Rorie’s termination, (ECF No. 131) is GRANTED. Mr. Rorie shall
file a third amended complaint, limited to claims based on his termination,
on or before January 31, 2024.
3. The trial date and any remaining case deadlines or hearings are hereby
CANCELLED pending further order of the Court.
DONE and ORDERED in Chambers at West Palm Beach, Palm Beach
County, in the Southern District of Florida, this 4th day of January 2024.
BRUCE E. _ lic”
UNITED STATES MAGISTRATE JUDGE
33