Lutz v. LexJax, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JOSEPH LUTZ,

Plaintiff,

v. Case No. 3:21-cv-936-MMH-PDB

LEXJAX, INC., d/b/a Mercedes-

Benz of Orange Park,

Defendant.

ORDER

THIS CAUSE is before the Court on Defendant’s Motion for Summary

Judgment (Doc. 64; Motion) filed by LexJax, Inc. (LexJax) on August 31, 2023.

Plaintiff Joseph Lutz filed a response on September 21, 2023. See Plaintiff’s

Response in Opposition to Defendant’s Motion for Summary Judgment

(Doc. 66; Response). LexJax then filed a brief in reply. See Defendant’s Reply in

Support of Summary Judgment (Doc. 69; Reply), filed October 5, 2023. On July

8, 2024, the Court held a hearing on the Motion at which the parties argued

their respective positions. Accordingly, this matter is ripe for review.

I. Background1

Fields Auto Group (Fields) owns numerous car dealerships throughout

the United States. See Declaration of John Mantione at 1 (Doc. 64-1; Mantione

Declaration). LexJax (d/b/a/ Mercedes-Benz of Orange Park) is one of these

dealerships, and sells new and pre-owned vehicles. Id. at 1–2. Relevant here,

LexJax has the following organizational structure: the General Manager is the

highest-ranking management official at the dealership and possesses the

limited authority to hire employees, recommend termination actions, conduct

and administer discipline, and direct sales leads. See Deposition of LexJax at 9,

18, 20, 22 (Doc. 62-3; LexJax Deposition). The Sales Managers, who are

supervised by the General Manager, have the limited authority to recommend

the hiring and termination of employees, and also manage the dealership’s sales

personnel. Id. at 9, 26, 27. Sales personnel, in-turn, are the individuals who

conduct the day-to-day sale of cars at the dealership. See Deposition of Joseph

Lutz at 192 (Doc. 62-1; Lutz Deposition). Also located within LexJax is an

independent human resources department which is responsible for all of Fields’

human resource functions. See Deposition of Gena Jankowski at 9, 50

(Doc. 62-6; Jankowski Deposition).

1 Unless otherwise noted, the facts recited herein are undisputed. For the purpose of

summary judgment, the Court views all disputed facts and reasonable inferences in the light

most favorable to Lutz. See Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)

(describing the summary judgment standard).

In May 2017, LexJax hired Lutz to work as a salesperson at the

dealership. See Lutz Deposition at 130. At that time, Debbie Mills was the

dealership’s General Manager. Id. at 131. But, around October 2018, Aaron

Mong took over as General Manager. Id. at 138. Throughout his employment,

Lutz’s direct supervisor was L.J. Walters (one of LexJax’s Sales Managers). See

Deposition of L.J. Walters at 26 (Doc. 62-8; Walters Deposition). And Gena

Jankowski was the Director of Human Resources. See Jankowski Deposition at

9.

Upon being hired, Lutz was given LexJax’s Equal Employment

Opportunity, Anti-Harassment, and Non-Discriminatory Policy to review. See

Lutz Deposition at 149; see also Fields Auto Group Employee Handbook

(Doc. 66-1; EEO Policy). The EEO Policy forbids discrimination and harassment

based on an individual’s religion or national origin, and also prohibits

retaliation due to an employee’s complaints about alleged EEO Policy

violations. See EEO Policy at 8, 10. If harassment or retaliation does occur, the

EEO Policy instructs employees to bring a complaint to their supervisor, any

member of management, or Jankowski. Id. at 9.

Initially, Lutz’s employment at LexJax was uneventful. See Lutz

Deposition at 143–44. However, when Mong became the General Manager in

2018, the environment at LexJax changed for the worse. Id. at 144. And Lutz,

who is Jewish, began experiencing harassment and discrimination based on his

religion and national origin. Id. at 150–51. For instance, LexJax employees

would intentionally have conversations in-front of Lutz that involved

antisemitic sentiments. Id. at 152. Specifically, George Vogt (another LexJax

salesperson) would say in a German accent, “Oh, we have a Jew” in reference

to Lutz. Id. at 151–52. Vogt would also make comments that the Nazis “should

have burned” all of the Jews; that it “would be great to have a situation over

here like they had in Germany”; and he would perform a “Heil Hitler” salute in

Lutz’s presence. Id. at 152–153. These sort of conversations occurred

approximately five to ten times throughout 2019. Id. at 179. Walters

participated in these conversations, and even laughed at Vogt’s comments. Id.

at 151.

In addition to these conversations, Lutz experienced other forms of

harassment. Id. at 176–77. In one instance, Lutz was experiencing a medical

issue and “peed out a blood clot into [a] urinal” in the LexJax bathroom. Id. at

246. Vogt, who was in the restroom with Lutz at the time, got in Lutz’s face and

said to him, “[y]ou bled in the toilet. I’ll cut your head off, Jew[.]” Id. at 246–47.

On another occasion, Lutz was waiting at the dealership’s front desk when

Walters approached him, tossed coins on the floor, and said, “[h]ey, you’re

Jewish. Go pick it up.” Id. at 177. On yet another occasion, Lutz walked into the

LexJax office and noticed that the whiteboard used to track car sales had

Jewish symbols written on it in place of his name. See id. at 155; Exhibit

Pictures of Jewish Symbols on Board (Doc. 66-9; LexJax Sales Board).

Although Lutz was distressed by these incidents, he never explicitly told

anyone at LexJax that he was being harassed because he was Jewish. See Lutz

Deposition at 155. However, Lutz did make numerous complaints to his

superiors about being unfairly treated due to his work performance. Id. at 81.

The first of these complaints occurred in November 2018 when Walters called

Lutz “and just started harassing [him]” about not making enough phone calls.

Id. at 139–40, 145–46. Lutz, upset by the way that he was being treated by

Walters, met with Mong and told him that Walters had been “picking on [him].”

Id. at 158. During this meeting, Lutz never told Mong that Walters’ harassment

was based upon his religion. Id. at 142. In fact, neither Walters nor Mong knew

that Lutz was Jewish at the time. Id. Then, in January 2020, Sean Dowling

(LexJax’s sales manager for pre-owned vehicles) issued Lutz a written

discipline for failing to meet his objective quota for weekly sales calls. Id. at 207.

Lutz filed a formal grievance in response to Dowling’s write-up, but in the

grievance he made no mention that the write-up had anything to do with him

being Jewish. Id. at 207, 211. Finally, in February 2020, Lutz met with

Jankowski and complained about how Walters had been “writing [him] up for

not making enough phone calls.” Id. at 100–01. In this meeting, Lutz told

Jankowski that Walters had been “pick[ing] on” him. Id. at 99. But never told

her that he was being picked on because he was Jewish. Id.

Despite the work environment at LexJax, Lutz continued to exceed sales

expectations by selling the most cars in 2019, and was awarded the “Top Dog

Salesperson of the Year” award for his efforts. Id. at 218. Nonetheless, the

environment at LexJax caused Lutz to become emotionally distressed. Id. at

243. And when COVID-19 struck Florida, Lutz decided to take COVID leave,

and stopped coming into the dealership. Id. at 184. Despite deciding to take the

leave, Lutz intended to return to LexJax once it was safe to do so. Id. at 46–47.

However, in April 2020, Lutz informed Mong that he would not be returning to

the dealership, and that he was quitting his job. Id. at 94, 215.

Eight months later, on December 30, 2020, Lutz filed a charge with the

Equal Employment Opportunity Commission (EEOC). See Charge of

Discrimination at 1 (Doc. 62-13; EEOC Charge). In his EEOC charge Lutz

alleged that LexJax “promoted and condoned a hostile work environment in

which [he] was harassed on the basis of [his] religion and ancestry on an ongoing

basis” and that he “faced retaliation due to [his] complaints about” this

harassment. EEOC Charge at 1. The EEOC issued Lutz a Notice of Right to

Sue, and he subsequently brought this action. See Complaint ¶ 39 (Doc. 1).

II. Legal Standard

Under Rule 56 of the Federal Rules of Civil Procedure (Rule(s)), “[t]he

court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Rule 56(a). The record to be considered on a motion for

summary judgment may include “depositions, documents, electronically stored

information, affidavits or declarations, stipulations (including those made for

purposes of the motion only), admissions, interrogatory answers, or other

materials.” Rule 56(c)(1)(A).2 An issue is genuine when the evidence is such that

a reasonable jury could return a verdict in favor of the nonmovant. See Mize v.

Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston

v. Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A] mere

2 Rule 56 was revised in 2010 “to improve the procedures for presenting and deciding

summary-judgment motions.” Rule 56 Advisory Committee’s Note 2010 Amends.

The standard for granting summary judgment remains unchanged. The

language of subdivision (a) continues to require that there be no genuine

dispute as to any material fact and that the movant be entitled to judgment

as a matter of law. The amendments will not affect continuing development

of the decisional law construing and applying these phrases.

Id. “[A]lthough the interpretations in the advisory committee[’s] notes are not binding, they

are highly persuasive.” Campbell v. Shinseki, 546 F. App’x 874, 879 n.3 (11th Cir. 2013). Thus,

case law construing the former Rule 56 standard of review remains viable and is applicable

here.

In citing to Campbell, the Court notes that it does not rely on unpublished opinions as

binding precedent, but that they may be cited in this Order when the Court finds them

persuasive on a particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060–61 (11th Cir.

2022); see generally Fed. R. App. P. 32.1; 11th Cir. R. 36–2 (“Unpublished opinions are not

considered binding precedent, but they may be cited as persuasive authority.”).

scintilla of evidence in support of the non-moving party’s position is insufficient

to defeat a motion for summary judgment.” Kesinger ex rel. Est. of Kesinger v.

Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252 (1986)).

The party seeking summary judgment bears the initial burden of

demonstrating to the court, by reference to the record, that there are no genuine

issues of material fact to be determined at trial. See Clark v. Coats & Clark,

Inc., 929 F.2d 604, 608 (11th Cir. 1991). “When a moving party has discharged

its burden, the non-moving party must then go beyond the pleadings, and by its

own affidavits, or by depositions, answers to interrogatories, and admissions on

file, designate specific facts showing that there is a genuine issue for trial.”

Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593–94 (11th Cir. 1995)

(internal citations and quotation marks omitted). Substantive law determines

the materiality of facts, and “[o]nly disputes over facts that might affect the

outcome of the suit under the governing law will properly preclude the entry of

summary judgment.” Anderson, 477 U.S. at 248; see also McCormick v. City of

Ft. Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (“The mere existence of

some factual dispute will not defeat summary judgment unless the factual

dispute is material to an issue affecting the outcome of the case.”). In

determining whether summary judgment is appropriate, a court “must view all

evidence and make all reasonable inferences in favor of the party opposing

summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)

(citing Dibrell Bros. Int’l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571,

1578 (11th Cir. 1994)).

III. Discussion

Lutz asserts six claims against LexJax: (1) religious harassment and

discrimination in violation of Title VII; (2) discrimination in violation of 42

U.S.C. § 1981; (3) religious harassment and discrimination in violation of the

Florida Civil Rights Act (FCRA); (4) retaliation in violation of Title VII; (5)

retaliation in violation of the FCRA; and (6) retaliation in violation of 42

U.S.C. § 1981. See Complaint at 12–20. LexJax moves for summary judgment

on all counts. Motion at 12. As to the discrimination claims, LexJax argues that

Lutz has failed to show the existence of a hostile work environment and that

summary judgment should be entered in its favor as to Counts I, II, and III. Id.

at 17. As to the retaliation claims, LexJax contends that Lutz has failed to make

a prima facie showing for a retaliation claim and that summary judgment

should be entered in its favor as to Counts IV, V, and VI. Id. at 13. For his part,

Lutz argues that a reasonable jury could find that a hostile work environment

existed and that he was retaliated against, Response at 10, 17, and therefore

requests that summary judgment be denied. Id. at 20. For the reasons discussed

below, the Court finds that the Motion is due to be granted in-part and denied

in-part.

A. Hostile Work Environment

In Counts I, II, and III Lutz alleges that LexJax discriminated against

him by creating a hostile work environment in violation of Title VII, 42

U.S.C. § 1981, and the FCRA. See Complaint at 12–15. Because each of these

claims are subject to the same standards of proof and employ the same

analytical framework, the Court will analyze them collectively. See Bryant v.

Jones, 575 F.3d 1281, 1296 n.20 (11th Cir. 2009) (“[H]ostile work environment

claims, brought under the Equal Protection Clause, 42 U.S.C. § 1981, or Title

VII . . . are subject to the same standards of proof and employ the same

analytical framework.”); see also Harper v. Blockbuster Ent. Corp., 139 F.3d

1385, 1387 (11th Cir. 1998) (“The Florida courts have held that decisions

construing Title VII are applicable when considering claims under the Florida

Civil Rights Act, because the Florida act was patterned after Title VII.”). To

establish a prima facie hostile work environment claim, a plaintiff must show:

(1) [T]hat he belongs to a protected group; (2) that he has been

subject to unwelcome harassment; (3) that the harassment must

have been based on a protected characteristic of the employee, such

as national origin; (4) that the harassment was sufficiently severe

or pervasive to alter the terms and conditions of employment and

create a discriminatorily abusive working environment; and (5)

that the employer is responsible for such environment under either

a theory of vicarious or of direct liability.

Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). In the

Motion, LexJax does not dispute that Lutz (being Jewish) belongs to a protected

group, that he was subject to unwelcome harassment, and that this harassment

was because he is Jewish. However, LexJax does argue that Lutz’s alleged

harassment was not sufficiently severe or pervasive as to alter the terms and

conditions of his employment and that it cannot be held liable for this

harassment. Motion at 18, 24. In the alternative, LexJax contends that even if

Lutz can establish his hostile work environment claim, it is entitled to summary

judgment on its Faragher defense. Id. at 23.3 The Court will address each

argument in turn.

i. Severe or Pervasive

LexJax argues that Lutz has failed to show that his alleged harassment

was sufficiently severe or pervasive as to alter the terms and conditions of his

employment. Id. at 18. Importantly, Title VII does not “operate as a ‘civility code

for the American workplace.’” Copeland v. Georgia Dep’t of Corr., 97 F.4th 766,

775 (11th Cir. 2024) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523

U.S. 75, 80 (1998)). For this reason, the “severe-or-pervasive element ensures

that a hostile work environment claim remains faithful to the text of Title VII”

by making “actionable only a work environment sufficiently suffused with

‘intimidation, ridicule, and insult . . . [as] to alter the conditions of the victim’s

3 In Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998), the Supreme Court held

that a defendant-employer may avoid liability for the creation of a hostile work environment

if it can show that it: “[1] exercised reasonable care to prevent and correct promptly

any . . . harassing behavior, and [2] that the plaintiff employee unreasonably failed to take

advantage of any preventive or corrective opportunities provided by the employer or to avoid

harm otherwise.”

employment.’” Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).

To satisfy the severe or pervasive requirement, a plaintiff must satisfy both an

objective and subjective component. Id. As to the subjective component, a

plaintiff must show that he “‘subjectively perceived’ the hostile work

environment ‘to be abusive.’” Id. (quoting Miller, 277 F.3d at 1276) (alteration

omitted). Whereas the objective component requires a plaintiff to show “‘an

environment that a reasonable person would find hostile or abusive’—that is,

one where severe or pervasive harassment of the victim occurs.” Id. (quoting

Miller, 277 F.3d at 1276). In the Motion, LexJax does not dispute that Lutz

subjectively perceived his harassment to be abusive. Therefore, the only

question is whether the harassment was objectively abusive. In answering this

question, the Court considers the following factors:

(1) the frequency of the conduct; (2) the severity of the conduct; (3)

whether the conduct is physically threatening or humiliating, or a

mere offensive utterance; and (4) whether the conduct

unreasonably interferes with the employee’s job performance.

Miller, 277 F.3d at 1276. “Although these factors guide [the Court’s] inquiry,

they are neither elements nor requirements.” Copeland, 97 F.4th at 775.

Instead, the Court’s “task is to ‘determine under the totality of the

circumstances whether the harassing conduct . . . alter[ed] the terms or

conditions of the plaintiff’s employment.’” Id. at 775–76 (quoting Mendoza v.

Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999)). And “no single factor” is

dispositive in making this determination. Fernandez v. Trees, Inc., 961 F.3d

1148, 1155 (11th Cir. 2020).

Before considering whether Lutz has established a genuine issue of

material fact on the question of whether the conduct to which he was subjected

was sufficiently severe or pervasive to establish a prima facie case, the Court

notes that much of LexJax’s arguments on this issue are misplaced. This is so

because in making its arguments, LexJax relies on contradictory testimony

given by other LexJax employees in their depositions. But in resolving the

Motion, the Court makes no credibility assessments, accepts Lutz’s testimony

as true, and views all reasonable inferences in his favor.

Frequency. The first factor—the frequency of the alleged

conduct—weighs in favor of Lutz. Although there is no “‘magic number’ of

instances of harassment sufficient to qualify as frequent[,]” Copeland, 97 F.4th

at 776 (quoting Miller, 277 F.3d at 1276), the Eleventh Circuit has “treated 15

instances of harassment in four months as ‘not infrequent,’ ‘more than 10’

specific instances in two months as ‘frequent,’ and five instances over an

11-month period as ‘too infrequent[.]’” Id. (internal quotations and citations

omitted). Wherever this boundary may lie, a reasonable jury could find that

Lutz’s alleged harassment surpassed it. Id. For instance, Lutz testified that

Walters and Vogt purposefully engaged in antisemitic conversations in his

presence approximately five to ten times throughout 2019. See Lutz Deposition

at 151, 179. In addition to these conversations, Lutz also testified that there

was an incident where Walters dropped coins on the floor and derisively told

him to pick them up because he was Jewish; that someone at LexJax had

written Jewish symbols on the dealership’s sales board in place of his name;

and that in the LexJax bathroom Vogt told him that, “I’ll cut your head off,

Jew.” Id. at 164, 177, 247. Viewing these facts in their totality, a reasonable

jury could find that Lutz was subjected to frequent discrimination while

employed at LexJax during 2019. See Copeland, 97 F.4th at 777.

Severity. The second factor—the severity of the alleged conduct—also

weighs in Lutz’s favor. As explained by the Supreme Court, “the objective

severity of harassment should be judged from the perspective of a reasonable

person in the plaintiff’s position, considering ‘all the circumstances.’” Oncale,

523 U.S. at 81 (quoting Harris, 510 U.S. at 23). This “inquiry requires careful

consideration of the social context in which particular behavior occurs and is

experienced by its target.” Id. But also relevant is whether the harassment

“involves the participation of supervisors rather than solely peers or

subordinates.” Copeland, 97 F.4th at 777.

Here, Lutz experienced harassment from both his direct supervisor

(Walters) and his peer (Vogt). As noted above, according to Lutz, Walters

dropped coins on the floor and derisively told Lutz to pick them up because he

was Jewish. Walters also participated in the antisemitic conversations that

occurred in front of Lutz, and would laugh at Vogt’s statements that the Nazis

“should have burned” all of the Jews; that it “would be great to have a situation

over here like they had in Germany”; and that “Hitler killed a lot of Jews over

in Germany and other countries over there and that he wished it would happen

here in our country, clean -- cleanse the country of Jews.” Lutz Deposition at

152–153, 260. Although LexJax contends that these were merely “[i]solated

incidents of generic inappropriate conversations” a reasonable jury could

conclude otherwise. Motion at 21; see also Miller, 277 F.3d at 1277 (“[The

alleged] conduct rose above the level of off-handed comments in the course of

casual conversation that the Supreme Court has refused to find actionable.”).

Physically Threatening or Humiliating. The third factor—whether the

alleged conduct is physically threatening or humiliating—weighs in Lutz’s favor

as well. First, a reasonable jury could find that Lutz’s alleged harassment was

physically threatening. Notably, Vogt got in Lutz’s face in the dealership

bathroom and said, “I’ll cut your head off, Jew.” Lutz Deposition at 246–47. Vogt

also made statements in front of Lutz expressing his support for the cleansing

of Jews from the United States. See id. at 260. Second, a reasonable jury could

find that Lutz’s alleged harassment was humiliating. As noted by the Eleventh

Circuit, “harassment that occurs ‘in the presence of coworkers’ is especially

humiliating.” Copeland, 97 F.4th at 779 (quoting Fernandez, 961 F.3d at 1155).

To this point, Walters and Vogt’s antisemitic conversations did not occur in

private, but on the dealership floor in front of other employees and customers.

See Lutz Deposition at 151. Additionally, LexJax’s sales board—which was

visible to everyone at the dealership—had Jewish symbols written on it in place

of Lutz’s name. See Deposition of Aaron Mong at 72 (Doc. 62-2; Mong

Deposition). Based on these facts, a reasonable jury could find that Lutz’s

alleged harassment was both physically threatening and humiliating.

Job Performance. The fourth factor—whether the alleged conduct

unreasonably interfered with the employee’s job performance—is likely neutral.

As explained by the Supreme Court, “Title VII comes into play before the

harassing conduct leads to a nervous breakdown.” Harris, 510 U.S. at 22. This

makes sense as a “discriminatorily abusive work environment, even one that

does not seriously affect employees’ psychological well-being, can and often will

detract from employees’ job performance, discourage employees from remaining

on the job, or keep them from advancing in their careers.” Id. Accordingly,

“harassment need not be . . . so extreme that it produces tangible effects on job

performance in order to be actionable.” Miller, 277 F.3d at 1277 (citing Harris,

510 U.S. at 22). Here, Lutz testified that he was “emotionally worn out from the

way [that he] was being treated” at LexJax. Lutz Deposition at 33. But, he also

sold the most cars in 2019 and was awarded the “Top Dog Salesperson of the

Year Award” because of his performance. Id. at 218. Therefore, on balance, this

factor is likely neutral.

For the reasons stated above, a reasonable jury could find that Lutz’s

harassment was frequent, severe, and physically threatening and humiliating.

Although the impact of this harassment on Lutz’s job performance is likely

neutral, a reasonable jury could conclude that these factors, in their totality,

support a finding that Lutz’s alleged harassment was sufficiently severe or

pervasive as to materially alter the terms and conditions of his employment.

See Miller, 277 F.3d at 1277.

ii. Direct or Vicarious Liability

LexJax next argues that it cannot be held liable for Lutz’s alleged

harassment. Motion at 24. To survive summary judgment, Lutz “must provide

evidence from which a reasonable jury could conclude that [LexJax] was liable

for the harassment [he] suffered.” Smelter v. S. Home Care Servs. Inc., 904 F.3d

1276, 1287 (11th Cir. 2018). “As an initial matter, the basis of an employer’s

liability for a hostile work environment depends on whether the harasser is the

victim’s supervisor or merely a co-worker.” Gray v. Koch Foods, Inc., 580 F.

Supp. 3d 1087, 1113 (M.D. Ala. 2022). 4 Liability “for a supervisor’s []

harassment can either be established directly or vicariously, while employer

liability for a co-worker’s harassment can only be established directly.” Id.

4 The Court notes that although decisions of other district courts are not binding, they

may be cited as persuasive authority. See Stone v. First Union Corp., 371 F.3d 1305, 1310

(11th Cir. 2004) (noting that, “[a]lthough a district court would not be bound to follow any

other district court’s determination, the decision would have significant persuasive effects”).

(citing Minix v. Jeld-Wen, Inc., 237 F. App’x 578, 579, 583 (11th Cir. 2007)).5

Direct liability “can be established through evidence of two types of notice:

actual and constructive.” Smelter, 904 F.3d at 1287. “Actual notice is

established by proof that management knew of the harassment, whereas

constructive notice will be found where the harassment was so severe and

pervasive that management should have known of it.” Id. (quoting Miller, 277

F.3d at 1278). On the other hand, an employer can be “subject to vicarious

liability to a victimized employee for an actionable hostile environment created

by a supervisor with immediate (or successively higher) authority over the

employee.” Ellerth, 524 U.S. at 765.

LexJax contends that it cannot be held directly liable because “Mong and

Walters are not high enough up in the corporate ladder for” it to have actual

notice of Lutz’s harassment. Motion at 24. This argument is unavailing. The

Eleventh Circuit has held that when an employer’s anti-harassment policy

“clearly specifies the steps an employee should take to alert the employer of

sexual harassment, the employer has, by the policy, ‘itself answered the

5 In Vance v. Ball State Univ., 570 U.S. 421 (2013), the Supreme Court explained that

despite the colloquial use of the term “supervisor,” a “supervisor” for the purposes of Title VII

is one who has been empowered “to take tangible employment actions against the

victim, i.e., to effect 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.’” Id. at 431 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S.

742, 761 (1998)). In the Motion, LexJax does not dispute that Walters meets this criteria.

Thus, for the purposes of this Order, the Court finds that Walters qualifies as a “supervisor”

under Title VII.

question of when it would be deemed to have notice of the harassment sufficient

to obligate it or its agents to take prompt and appropriate remedial measures.’”

Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1300 (11th Cir. 2000)

(quoting Coates v. Sundor Brands, Inc., 164 F.3d 1361, 1364 (11th Cir. 1999)).

Thus, “if an employer has a company policy specifically designating the person

or persons to whom an employee should report instances of

suspected . . . harassment, once the employee complains to the designated

person or persons, the employer is deemed to have actual notice of the

harassment.” Breda v. Wolf Camera & Video, 222 F.3d 886, 889 (11th Cir. 2000)

(citing Coates, 164 F.3d at 1364)). Here, LexJax’s EEO Policy states that an

employee may report discriminatory conduct to the “employee’s supervisor; the

Human Resources Director; [or] any officer or member of management.” EEO

Policy at 9 (alterations omitted). As Walters was Lutz’s direct supervisor, he

was specifically designated by LexJax to receive employee complaints regarding

EEO Policy violations. “Therefore, by this policy, [LexJax] established that

when [Walters] was contacted regarding harassment, it then had been given

notice sufficient to obligate it to make a prompt corrective response.” Madray,

208 F.3d at 1300. This is true regardless of Walters’ standing in the LexJax

corporate hierarchy, as the EEO Policy’s own terms designated him as one who

could place the corporation on notice of workplace misconduct.6

Since LexJax’s EEO Policy designated Walters as someone who

workplace misconduct could be reported to, the Court must next determine

whether Walters was made aware of Lutz’s alleged harassment. In answering

this question, the Eleventh Circuit’s opinion in Smelter v. S. Home Care Servs.

Inc., 904 F.3d 1276 (11th Cir. 2018), is instructive. In Smelter, the Eleventh

Circuit considered whether an employer had actual notice of an employee’s

harassment when a supervisor observed the harassment and found it to be

funny. Id. at 1287. The Eleventh Circuit held that the employer did have actual

notice, despite the employee never making a formal complaint, reasoning that:

Of course, [the supervisor] could not have found the racist remarks

humorous if she had not overheard them. The record thus contains

evidence that [the supervisor] had actual notice of the hostile work

environment despite [the plaintiff's] failure to report it. And

because [the supervisor] was [the plaintiff’s] supervisor, we can

impute [the supervisor’s] notice to [the employer].

Id. Applying Smelter’s reasoning, a sister court explained that, “[i]f a

supervisor’s observation of harassment, even in the absence of any complaint or

report, is sufficient to constitute actual notice, then certainly a supervisor’s

6 Indeed, if LexJax is correct that Walters lacks the authority to place it on actual

notice of workplace misconduct, then the protections within the EEO Policy would be illusory.

Under this reasoning, LexJax would be allowed to delineate the steps that an employee must

take to report instances of misconduct, but when an employee follows those established

procedures, disclaim that they have any force and effect.

observation of harassment, and subsequent participation in that harassment,

can likewise constitute actual notice.” Gray, 580 F. Supp. 3d at 1115 (footnote

omitted). Here, Walters was Lutz’s direct supervisor and was specifically

designated by LexJax to receive complaints regarding workplace misconduct.

According to Lutz, not only did Walters observe Lutz being harassed by Vogt,

but he actively participated in this harassment and found Vogt’s comments to

be funny.7 A reasonable jury could therefore find that Walters had knowledge

of Lutz’s alleged harassment, despite Lutz never making any complaint, and

that this knowledge is sufficient to hold LexJax directly liable.8

In sum, a reasonable jury could find that Lutz’s harassment was

sufficiently severe or pervasive as to alter the terms and conditions of his

employment, and that LexJax had actual notice of this harassment and can

therefore be held directly liable. For this reason, a reasonable jury could

conclude that LexJax subjected Lutz to a hostile work environment.

7 Notably, the LexJax EEO Policy states that “[i]f an employee experiences or

witnesses any conduct that he or she believes is inconsistent with this policy, the Company

expects the employee to notify immediately one or more of the people designated below.” EEO

Policy at 9.

8 As a reasonable jury could find that LexJax had actual notice of Lutz’s alleged

harassment, the Court does not “address whether a reasonable jury could also conclude that

[LexJax] had constructive notice[,]” nor does the Court address whether LexJax can be held

vicariously liable. Smelter, 904 F.3d at 1288.

iii. Faragher Defense

LexJax argues that even if Lutz has made a prima facie hostile work

environment claim it is entitled to summary judgment on its Faragher defense.

Motion at 23. In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the

Supreme Court held that an employer is automatically liable for a supervisor’s

harassment when it “culminates in a tangible employment action, such as

discharge, demotion, or undesirable reassignment.” Id. at 808. When no such

action has occurred, “[a]n employer is subject to vicarious liability to a

victimized employee for an actionable hostile environment created by a

supervisor with immediate (or successively higher) authority over the

employee.” Id. at 807. However, an employer may avoid vicarious liability by

showing that it: “[1] exercised reasonable care to prevent and correct promptly

any . . . harassing behavior, and [2] that the plaintiff employee unreasonably

failed to take advantage of any preventive or corrective opportunities provided

by the employer or to avoid harm otherwise.” Id. “Both elements must be

satisfied for the defendant-employer to avoid liability, and the defendant bears

the burden of proof on both elements.” See Frederick v. Sprint/United Mgmt.

Co., 246 F.3d 1305, 1313 (11th Cir. 2001).

At the outset, although LexJax has the burden of showing that the

Faragher defense applies, LexJax spends little time in the Motion addressing

it. See Motion at 23–24. LexJax’s principal argument is that because its EEO

Policy prohibited discrimination, and Lutz failed to take advantage of this

Policy, Faragher applies. Id. While this argument certainly bears on whether

Lutz “unreasonably failed to take advantage of any preventive or corrective

opportunities provided by” LexJax, Faragher, 524 U.S. at 807, it does not

address whether LexJax “exercised reasonable care to prevent and correct

promptly” the harassment that Lutz faced. Id. As explained above, a reasonable

jury could find that LexJax had actual notice of Lutz’s harassment. Notably,

the Eleventh Circuit has held that:

[I]n regard to both the direct liability standard and the employer’s

affirmative defense to vicarious liability, the employer’s notice of

the harassment is of paramount importance; if the employer had

notice of the harassment (which is required for direct liability but

not required for vicarious liability), then it is liable unless it took

prompt corrective action.

Dees v. Johnson Controls World Servs., Inc., 168 F.3d 417, 422 (11th Cir. 1999).

Since LexJax has not presented any evidence that it took prompt corrective

action to address Lutz’s harassment, the Court, at this juncture, cannot find

that it is entitled to the Faragher defense.

In sum, because a reasonable jury could find that LexJax subjected Lutz

to a hostile work environment, and because LexJax has failed to satisfy both

elements of its Faragher defense, the Motion is due to be denied as to Counts I,

II, and III.

B. Retaliation

In Counts IV, V, and VI Lutz alleges that he was unlawfully retaliated

against in violation of Title VII, the FCRA, and 42 U.S.C. § 1981. See Complaint

at 16–20. “Because retaliation claims under Title VII, the FCRA, and § 1981 are

analyzed under the same framework, the Court discusses them together and

their outcomes are the same.” Eliassaint v. RTG Furniture Corp., 551 F. Supp.

3d 1293, 1310 (M.D. Fla. 2021). To make a prima facie showing of retaliation, a

plaintiff must show: “(1) that [he] engaged in statutorily protected conduct; (2)

that [he] suffered [an] adverse employment action; and (3) that there is ‘some

causal relation’ between the two events.” Alvarez v. Royal Atl. Devs., Inc., 610

F.3d 1253, 1268 (11th Cir. 2010) (quotation omitted). LexJax argues that Lutz

has failed to satisfy each element, and that summary judgment should therefore

be entered in its favor on his retaliation claims. Motion at 13.

LexJax first argues that Lutz has failed to show that he engaged in

statutorily protected conduct. Id. at 14. “Title VII’s anti-retaliation provision

prohibits retaliation when an employee ‘oppos[es] any practice made an

unlawful employment practice by [Title VII.]’” Howard v. Walgreen Co., 605

F.3d 1239, 1244 (11th Cir. 2010) (quoting 42 U.S.C. § 2000e–3(a)).9 Under Title

9 Title VII also prohibits retaliation against anyone who “has made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or hearing.” Howard,

605 F.3d at 1244 (quoting 42 U.S.C. § 2000e–3(a)). Lutz does not argue that this occurred.

Thus, the Court does not address this issue.

VII, “[p]rotected activities include the filing of a formal complaint, the voicing

informally of a complaint to superiors, or the use of an employer’s internal

grievance procedure to report alleged discrimination.” Bolton v. Baldwin Cnty.

Pub. Sch., 627 F. App’x 800, 803 (11th Cir. 2015) (citing Rollins v. State of Fla.

Dep’t of L. Enf’t, 868 F.2d 397, 400 (11th Cir. 1989)). “However, the statute’s

protections only reach individuals who ‘explicitly or implicitly communicate[ ] a

belief that the practice constitutes unlawful employment discrimination.’”

Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1311 (11th Cir. 2016)

(quoting EEOC Compl. Man. (CCH) § 8–11–B(2) (2006)). Nonetheless, “an

employee need not use the magic words ‘[religion]’ or ‘[national origin]’ to bring

[his] speech within Title VII’s retaliation protections[.]” Livingston v. Marion

Bank & Tr. Co., 30 F. Supp. 3d 1285, 1314 (N.D. Ala. 2014) (quoting Sitar v.

Indiana Dep’t of Transp., 344 F.3d 720, 727 (7th Cir. 2003)). Instead, “[the]

complaint must reasonably convey to the employer an allegation of employment

discrimination based upon [religion or national origin] rather than merely a

claim related to personal animosity, unfairness, or indecorous treatment

generally.” Id. (citing Coutu v. Martin Cnty. Bd. of Cnty. Com’rs, 47 F.3d 1068,

1075 (11th Cir. 1995)).

Here, Lutz does not specify what statutorily protected conduct he engaged

in. Instead, he argues that because Mong “was involved in and had knowledge

of [his] ongoing harassment” a “reasonable juror could conclude that Mong

understood [his] complaints to be about the ongoing discriminatory and

retaliatory harassment” he was experiencing. Response at 18 (emphasis in

original). Thus, it appears as though Lutz is arguing that his complaints to

Mong about being “picked on” is the statutorily protected conduct. This

argument is unavailing. Notably, Lutz never complained to Mong—or anyone

at LexJax—that he was being harassed, discriminated against, or even treated

differently because he was Jewish. Instead, Lutz only raised general complaints

about being treated unfairly with regard to his sales call requirements.

For instance, in November 2018, Walters called Lutz and “started

harassing [him]” about not making enough phone calls. Lutz Deposition at 140,

145–46. Upset by this incident, Lutz met with Mong and complained that he

was being “pick[ed] on” by Walters. Id. at 158. During this meeting, Lutz never

told Mong that Walters was harassing him because he was Jewish. Id. at

157–58. In fact, neither Mong nor Walters knew that Lutz was Jewish at the

time. Id. at 142.10 Next, in January 2020, Dowling wrote up Lutz for failing to

10 Lutz testified that there were additional instances where he complained to Mong

about Walters’ behavior. See Lutz Deposition at 138 (“I told Aaron Mong numerous times

about stuff that [Walters] was doing to me.”). However, during these conversations, Lutz never

told Mong that Walters was harassing him because he was Jewish—only that he was being

harassed for not making enough sales calls. See id. at 154–55 (“So when I went to . . . [Mong],

I would tell him about the harassment, you know, ‘This guy keeps harassing me. He’s picking

on me about phone calls. I’m selling cars. I mean, what else can I do?’”). Indeed, Lutz concedes

that in these conversations he never explicitly told Mong that he was being harassed based on

his religion or national origin. See id. at 157–58 (“Q: Did you ever mention anything about

being Jewish when you complained to [Mong]? A: No. When I complained to [Mong], I did say,

‘He’s picking on me.’”); id. at 155 (“Q: So you never reported the religion part? A: No.”).

meet his weekly sales call objectives. Id. at 205–06. Lutz filed a formal grievance

in response to this write-up, but in the grievance did not mention that he was

being harassed because he was Jewish. Id. at 207, 211. Nor could he, as he

admits that Dowling’s write-up had nothing to do with his religion or national

origin. Id. at 211. Finally, in February 2020, Lutz met with Jankowski to

complain about how Walters had been “writing [him] up for not making enough

phone calls.” Id. at 100. In this meeting, Lutz complained to Jankowski that

Walters had been “pick[ing] on” him. Id. at 99. But never told her that he was

being picked on because he was Jewish. Id. Indeed, Jankowski “didn’t have any

knowledge” that Lutz was being harassed or discriminated against because of

his religion or national origin. Id.

Thus, as Lutz’s complaints were only about being unfairly treated due to

his sales performance, these complaints could not have reasonably conveyed to

LexJax that he was being discriminated against because he was Jewish. See

Livingston, 30 F. Supp. 3d at 1314 (“[A] complaint must reasonably convey to

the employer an allegation of employment discrimination . . . rather than

merely a claim related to personal animosity, unfairness, or indecorous

treatment generally.”). For this reason, no reasonable jury could find that Lutz

engaged in statutorily protected conduct. As such, his retaliation claims

necessarily fail, and the Court does not address the remaining elements. See

Howard, 605 F.3d at 1244 (“[Lutz’s] claim fails as a matter of law . . . because

he did not engage in protected conduct.”). Accordingly, LexJax is entitled to

summary judgment on Counts IV, V, and VI of the Complaint.

IV. Conclusion

Upon review of the record and the parties’ arguments, the Court finds as

follows. As to Lutz’s discrimination claims (Counts I, II, and III) summary

judgment is due to be denied because a reasonable jury could find that Lutz’s

harassment during 2019 was sufficiently severe or pervasive as to materially

alter the terms and conditions of his employment and that LexJax is directly

liable for this harassment. Additionally, LexJax has failed to show, at this

juncture, that it is entitled to the Faragher defense. As to Lutz’s retaliation

claims (Counts IV, V, and VI) summary judgment is due to be entered in

LexJax’s favor as Lutz has failed to show that he engaged in statutorily

protected conduct.

Accordingly, it is

ORDERED:

1. Defendant’s Motion for Summary Judgment (Doc. 64) is GRANTED

in-part and DENIED in-part.

2. The Motion is denied with respect to Counts I, II, and III of the

Complaint.

3. The Motion is granted with respect to Counts IV, V, and VI of the

Complaint.

4. The Court will withhold the entry of final judgment until resolution of

the remaining claims against LexJax.

5. The parties are directed to confer, and by August 19, 2024, advise

the Court whether they believe a settlement conference with a United

States Magistrate Judge would be beneficial in this case.

DONE AND ORDERED in Jacksonville, Florida this 30th day of July,

2024.

United States District Judge

Lce32

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