Opinion

Rorie v. School Board of Palm Beach County, Florida

Court
District Court, S.D. Florida
Filed
Jan 4, 2024
Cited by
0 cases
Authority
More cited than 20.2%

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

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(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).

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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

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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

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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

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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

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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.

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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

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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.

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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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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