Clark-Hilery v. Marketopia LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JOSE CLARK-HILERY,

Plaintiff,

v. Case No. 8:23-CV-00284-TPB-AEP

MARKETOPIA LLC,

Defendant.

/

ORDER

This matter comes before the Court upon Defendant’s Motion for Summary

Judgment (Doc. 57). Plaintiff initiated this action against his former employer,

Defendant Marketopia LLC (“Marketopia”), alleging sexual discrimination, sexual

harassment, and retaliation under both Florida and Federal law. Defendant now

seeks summary judgment on all six counts in Plaintiff’s Complaint. For the reasons

state herein, Defendant’s Motion (Doc. 57) is granted in part and denied in part.

I. Background

Defendant Marketopia LLC is a marketing agency owned by Terry and

Andra Hedden (Doc. 57-1, ¶¶ 4–5). On August 9, 2021, Plaintiff, a gay man, began

working for Defendant as its Director of Call Center Services (Doc. 1, ¶¶ 9–10). In

this role, Plaintiff was a part of Defendant’s executive team and reported directly to

Defendant’s CEO, Terry Hedden (Doc. 1, ¶ 10; Doc. 57-1, ¶¶ 8–9). Between

September 2021 and October 2021, three separate employees, Armani Cooper,

Jackson Bennet, and Josh Sellers, complained to the Defendant’s then Director of

Human Resources, Kim Roneree, about the Plaintiff’s behavior toward them. (Doc.

57, ¶¶ 5–7; Doc. 68, at 3). Cooper alleged that in a conversation about their feet,

Plaintiff told Cooper he would “suck the fuck out [Cooper’s] toes” (Doc. 63-3, at

12:3–9). Bennet reported similar commentary, noting that Plaintiff had told him

Plaintiff would be with Bennett if he were not married (Doc. 63-4, at 13:17–25).

Sellers also expressed feeling uncomfortable with Plaintiff’s comments concerning

his body and a fear of retaliation from Plaintiff if he spoke up (Doc. 63-10, at 80–

81). Dispute exists as to whether Ronoree reported any of these Complaints to the

Heddens (Doc. 63-10, at 32:7–33:18; Doc. 57, ¶ 8; Doc. 63-14, at 14, p. 53).

On December 3, 2021, a review was left on Glassdoor1 about Defendant

which stated, “[i] love the CEO and he deserves better but the call center manager

is getting away with sexual harassment and covered by human resources under the

nose of the CEO” and advised the company to “[t]reat others the way you want to

be treated - be aware of sexual harassment and put an end to it - help promote your

top performers instead of firing them because they didn't reciprocate the sexual

harassment.” (Doc. 57-3, p. 37). The review was attributed to Sellers who had been

fired by Plaintiff the previous day. (Doc. 68, at 4–5; Doc. 57-4, p. 4:11–5:4). Ms.

Hedden learned about the review that same day and shortly thereafter tasked HR

1 Glassdoor is a platform where job seekers and employers can find information about

companies, including reviews, salaries, and job openings, helping users make informed

decisions about their careers. See GLASSDOOR, https://www.glassdoor.com/index.htm

generalist Alex Hayes, who had recently taken on additional human resources

responsibilities following the departure of Roneree in December 2021, with

investigating the matter further (Doc. 57-2, ¶ 10–12; Doc. 57-3, p. 216:6–9, Doc. 68,

p. 4–5).

On December 15, 2021, Ms. Hedden and Mayes met with Plaintiff to discuss

complaints that had been made by or about Plaintiff’s interactions and behaviors

towards employees Amber Keeger, Misty Aquel, Tiffany Rivieccio, Brad Garinger,

Armani Cooper, and Jackson Bennett (Doc. 64-1, p. 42–44). Ms. Hedden then sent

an email to both parties recapping the discussion (Doc. 64-1, p. 42–44). In the email,

Ms. Hedden noted that the goal of the meeting was:

to ensure that anything brough to my or HR attention is addressed and

discussed in an open and confidential fashion with the leader. Jose

mentioned that many of these are old examples and he has since

tightened up on the lightheaded jokes etc. He is working hard to be

sensitive with the members on the floor so that situations do not come

up such as this. I am looking forward to Jose continuing to do great

work on the floor and with the tele leaders and executive team. I am

glad we were able to have a healthy and productive conversation.

(Doc. 64-1, at 43). She further expressed that she had “no doubt that [Plaintiff] will

work hard to ensure this type of feedback is not an issue.” (Doc. 64-1, at 42). From

December 16, 2021, through January 18, 2022, there is no record that Ms. Hedden

or Ms. Hayes had any further meetings or discussions with Plaintiff concerning

these complaints or any others. Further, there is little in the record to suggest that

any sort of investigation was ongoing. Defendant argues that this pause was due to

the fact that Ms. Hedden traveled in December, and Ms. Hayes was away in early

January (Doc. 57, ¶ 15).

On January 18, 2022, Plaintiff had his 90-day review with Mr. Hedden (Doc.

57, ¶ 17; Doc. 68, p. 5–6). Prior to this meeting, Mr. Hedden solicited feedback

concerning Plaintiff’s performance from Tiffany Rivieccio, Jackson Bennett, Brad

Garinger, and Scott Sullivan (Doc. 63-12, at 48:12–53:17). At the meeting, Mr.

Hedden discussed some of the issues concerning Plaintiff’s behavior that had

previously been addressed by Ms. Hedden and Mayes as well as some other issues

that had been brought to Mr. Hedden’s attention. (Doc. 63-12, at 56:9–59:10).

However, Plaintiff was told by Mr. Hedden that he “passed” his 90-day review and

was offered UARs, “a form of equity related to the value of Marketopia,” which

according to Mr. Hedden was “100% of what anyone would hope for and more

than most get” (Doc. 63-1, at 524; Doc. 63-12, at 54). Plaintiff, however, was

bothered by how his 90-day review went, and specifically took issue with how “false

accusations that have been investigated and proven false [were] thrown in [his] face

again” (Doc. 63-1, at 524).

On January 19, 2022, Plaintiff sent Mr. Hedden an email detailing his

grievances with certain topics that had been discussed at this review (Doc. 63-1 at

520–521). Additionally, Plaintiff expressed a personal grievance with Mr. Hedden

for referring to his clothing choices as “flamboyant” in an executive meeting in

September 2021 (Doc. 63-1 at 520; Doc. 63-1, at 198:16–200:16). Plaintiff stated

that the use of the word was offensive to him as a gay man because “telling a gay

man that he has any flamboyant tendencies whether the way he dressed, carries

himself, acts, etc is putting him or anyone in the stereotype” (Doc. 63-1 at 520). Mr.

Hedden in turn responded with an email addressing Plaintiff’s grievances point by

point (Doc. 63-1, at 522–524). Specifically with respect to the flamboyant comment,

Mr. Hedden pasted the definition of the word from the American Heritage

Dictionary and argued that he had used it only to mean “showy” and that the word

had nothing to do with “being gay, LGBTQ+, or anything else” (Doc. 63-1, at 523–

524). The email chain quickly became heated, and Ms. Hedden and Melissa Santos,

Marketopia’s interim HR Director, were added to the chain, at which point Ms.

Hedden scheduled a meeting on January 21, 2022, to “have a productive and

executive conversation around the below communications” (Doc. 63-1, at 525–

527). Following that meeting, a series of text messages were exchanged between

Mr. Hedden and Plaintiff wherein Mr. Hedden expressed that it really meant a lot

to him that Plaintiff had apologized for things he had said in the email as Mr.

Hedden would never say or do anything intentional to hurt him. (Doc. 57-3, at 41).

Plaintiff similarly acknowledged that in the future he would come and talk to Mr.

Hedden directly if he felt something offensive had been said (Doc. 57-3, at 41).

Two days later, on January 24, 2022, Ms. Santos began conducting recorded

interviews with Marketopia employees concerning accusations against Plaintiff.

Ms. Santos alleges that Ms. Hedden came to her after the flamboyant comment

controversy with a specific list of individuals and requested that she interview each

(Doc. 63-14, at 34, p. 133:19–134:7; Doc. 63-15, at 44, p. 175:20–25). Ms. Hedden

alleges that Ms. Santos was tasked with investigating the allegations against Plaintiff

in mid to late December and plead ignorance as to the manner and timeline in which

Ms. Santos conducted her investigation. (Doc. 57, at 13; Doc. 57-2, ¶ 17).

Regardless, from December 24th through December 27th, Ms. Santos conducted

five recorded interviews with employees Tiffany Riveccio, Scott Sullivan, Sarah

Black, Jackson Bennett, and Armani Cooper and spoke with employees Alex Mayes

and Chantel Morton (Doc. 63-14, at 35–38; Doc. 64-1, at 100–150; Doc. 57, at 13).

Following the conclusion of the last interview, Ms. Santos summarized her findings

in a word document (hereinafter “investigative summary”) and presented it to Ms.

Hedden on December 27, 2024 (Doc. 64-1, at 81–84; Doc. 68, at 8; Doc. 57, at 13)2.

Marketopia terminated Plaintiff later that day (Doc. 57, at 11; Doc. 68, at 9; Doc.

63-10, at 77–78). Plaintiff now brings claims of sexual harassment, sexual

discrimination, and retaliation against Defendant (Doc. 1).

II. Legal Standard

Summary judgment is appropriate where the movant demonstrates that there

is no genuine dispute as to any material fact and that the movant is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986); Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir.

2012). A dispute about a material fact is “genuine” if the evidence is such that a

reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). The existence of some factual disputes

between litigants will not defeat an otherwise properly supported summary

2 At deposition, Santos testified that she believed portions of the investigative summary

had been altered and some on the conclusions and opinions detailed in Doc. 64-1, at 81–

judgment motion; “the requirement is that there be no genuine issue of material fact.”

Id. at 247-48 (emphasis in original). The substantive law applicable to the claims

will identify which facts are material. Id. at 248. In reviewing the motion, courts

must view the evidence and make all factual inferences in a light most favorable to

the non-moving party and resolve all reasonable doubts about the facts in favor of

the non-movant. Dadeland Depot, Inc. v. St. Paul Fire and Marine Ins. Co., 483 F.3d

1265, 1268 (11th Cir. 2007) (citation omitted). The movant “bears the initial

responsibility of informing the district court of the basis for its motion[ ] and

identifying those portions of the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, which it believes

demonstrate the absence of a genuine issue of material fact.” Jones v. UPS Ground

Freight, 683 F.3d 1283, 1292 (11th Cir. 2012) (citing Celotex Corp., 477 U.S. at 323).

The burden then shifts to the nonmovant “to rebut that showing by producing

affidavits or other relevant and admissible evidence beyond the pleadings.” Jones,

683 F.3d at 1292 (quoting Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d

1292, 1315 (11th Cir. 2012)).

III. Analysis

In his Complaint, Plaintiff has brought claims for sexual harassment, sexual

discrimination, and retaliation under both Title VII of the Civil Rights Act of 1964

(“Title VII”) and the Florida Civil Rights Act (“FCRA”). As claims brought under

the FCRA are analyzed under the same framework as claims brought under Title

VII, the same determination will apply to both claims. See Gibson v. JetBlue Airways

Corp., No. 20-10943, 2021 WL 5368056, at *3 (11th Cir. Nov. 18, 2021) (citing Jones

v. United Space All., L.L.C., 494 F.3d 1306, 1310 (11th Cir. 2007)).

A. Sexual Harassment

To succeed on his claim for sexual harassment, Plaintiff must show: 1) he

belongs to a protected group; 2) he was subject to unwelcome sexual harassment; 3)

the harassment was based on his sex; 4) the harassment was sufficiently severe or

pervasive to alter the terms and conditions of his employment and create an abusive

working environment; and 5) a basis for holding Marketopia liable exists. Reeves v.

C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808 (11th Cir. 2010). At issue here are

elements two, three, and four (See Doc. 57, at 16–18; Doc. 68, at 12–15). Defendant

maintains that Plaintiff cannot show conduct by anyone at Marketopia that would

constitute harassment based on Plaintiff’s sexual orientation, and even if Mr.

Hedden’s flamboyant comment could be categorized as such, it was an isolated

incident which was not sufficiently severe or pervasive (Doc. 57, at 16–17). In

response, Plaintiff argues that Mr. Hedden used the term flamboyant to describe

Plaintiff more than once, and it was pervasive enough to cause Plaintiff to

contemplate resigning (Doc. 68, at 14–15).

The Court begins its analysis by acknowledging that there is dispute as to

whether the use of the term “flamboyant” could be considered anti-homosexual

hostility. However, in viewing the evidence in the light most favorable to the non-

moving party, the Court finds such conduct could be classified as sex-based

harassment. Thus, the Court turns to the fourth element, whether the harassment

was sufficiently severe or pervasive, to determine the viability of Plaintiff’s claim.

In evaluating whether harassing conduct is sufficiently severe or persuasive,

courts consider both a subjective and objective component. Harris v. Forklift Systems,

Inc., 510 U.S. 17, 21–22 (1993). In short, a plaintiff “must subjectively perceive the

environment to be abusive, and the conduct must be severe or pervasive enough to

create an objectively hostile or abusive work environment.” Blackmon v. Wal-Mart

Stores E., L.P., 358 F. App'x 101, 102 (11th Cir. 2009) (citing Harris, 510 U.S. at 21).

In evaluating whether an environment is objectively hostile or abusive, courts are

to consider: 1) the frequency of the discriminatory conduct; 2) its severity; 3)

whether the conduct was physically threatening or humiliating; and 4) whether it

unreasonably interfered with the employee’s work performance. Harris, 510 U.S. at

23. However, as acknowledged by the Supreme Court and reiterated by the

Eleventh Circuit, Title VII is not a “general civility code.” See e.g., Faragher v. City

of Boca Raton, 524 U.S. 775, 788 (1998); Reeves, 594 F.3d at 809. Thus, “simple

teasing, offhand comments, and isolated incidents (unless extremely serious) will

not amount to discriminatory changes in the ‘terms and conditions of

employment.’” Faragher, 524 U.S. at 788 (internal citations omitted).

Though Plaintiff has argued he subjectively felt the environment at

Marketopia was abusive, this argument is undercut by his own deposition testimony

and actions. At deposition, Plaintiff was asked directly whether there were any other

instances in which Mr. Hedden had used the term flamboyant beyond the

September 2021 incident (Doc. 63-1, at 208:3–6). Plaintiff responded “No.” (Doc.

63-1, at 208:7). Moreover, though Plaintiff cites to considerations of resignation as

evidence of the alleged abusive working environment, this did not occur until

January 19, 2022, months after the flamboyant comment had been made and a day

after receiving a 90-day review he was not happy with (Doc. 63-1, at 3–9). This

evidence does not support a subjective belief that Defendant’s conduct was so severe

or pervasive that it created a hostile working environment.

However, even assuming Plaintiff believed the alleged harassment created an

abusive workplace, this perception would not be objectively reasonable. Turning to

the factors presented in Harris, the conduct occurred only once,3 was not sufficiently

severe, and was not physically threatening or humiliating. Moreover, there is no

evidence to suggest that the conduct affected Plaintiff’s work performance. An

abusive work environment can “detract from employees' job performance,

discourage employees from remaining on the job, or keep them from advancing in

their careers.” Harris, 510 U.S. at 22. Here, as an indicated above, there is no

evidence that Plaintiff attempted to resign until months after the alleged incident

occurred nor is there any indication that Plaintiff was hindered in his job

3 Plaintiff argues Mr. Hedden referred to Plaintiff as flamboyant more than once by citing

to a vague portion of the deposition testimony of Marketopia employee Kevin Sabourin

(See Doc. 63-13 at 110:13-20). However, in multiple portions of his deposition, Mr.

Sabourin clearly and unequivocally states that he heard the term flamboyant used only

once. (Doc. 63-13, at 129:25–130:22, 160:6–16, 166:20–167:10). Mr. Sabourin also recalled

an instance in which Mr. Hedden commented awkwardly on Plaintiff’s hairstyle (Doc. 63-

13, at 114:9–20). However, there is no evidence to suggest this interaction was harassment

based on Plaintiff’s sexual orientation. Moreover, even if it could be classified as such, the

performance or prevented from advancing in his career as he was offered UAR’s at

his performance review.

For these reasons, the Court finds that under the totality of the circumstances

there is no genuine issue of material fact concerning whether Defendant’s conduct

was severe or persuasive enough to create a hostile working environment.

Accordingly, Defendant is entitled to summary judgment on Plaintiff’s claims of

sexual harassment under Title VII and the FRCA.

B. Sex Discrimination

Title VII prohibits discrimination on the basis of sex, including sexual

orientation. Bostock v. Clayton Cnty., Georgia, 590 U.S. 644 (2020) To prove

discrimination based on sex, a Title VII plaintiff may rely on direct evidence,

circumstantial evidence, or statistical proof. Alvarez v. Royal Atl. Devs., Inc., 610 F.3d

1253, 1264 (11th Cir. 2010). Courts assessing such claims based on circumstantial

evidence generally apply the burden-shifting analysis of McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). The McDonnell Douglas framework, however, is not the

only means by which a plaintiff can prove discrimination or retaliation with

circumstantial evidence. “Rather, the plaintiff will always survive summary

judgment if he presents circumstantial evidence that creates a triable issue

concerning the employer's discriminatory intent.” Smith v. Lockheed-Martin Corp.,

644 F.3d 1321, 1328 (11th Cir. 2011). The Eleventh Circuit often refers to this

approach as establishing a “convincing mosaic of discrimination.” See e.g., Lewis v.

City of Union City, Georgia, 934 F.3d 1169 (11th Cir. 2019). Key considerations in

establishing a “convincing mosaic” include: 1) suspicious timing, ambiguous

statements, and other bits and pieces from which an inference of discriminatory

intent may be drawn; 2) systematically better treatment of similarly situated

employees; and 3) that the employer's justification is pretextual. Lewis, 934 F.3d. at

1185.

In his response, Plaintiff does not dispute that he has failed to establish a

prima facie case of discrimination under the McDonnell Douglas framework. Instead,

Plaintiff argues that the record establishes a convincing mosaic from which “an

inference of discrimination against gay individuals can certainly be made” (Doc.

68, at 11). In support thereof, Plaintiff cites to the fall out surrounding his objection

to the use of the term “flamboyant” and further argues that fellow employee Jeff

Laws had a known history of making inappropriate, sexual comments and was not

fired because he was straight (Doc. 68, at 12). As evidence of this, Plaintiff cites to

deposition testimony from Mr. Sabourin indicating that Mr. Laws had been

reported to HR over 30 times, had used Marketopia’s credit card to take work

colleagues to a strip club in Las Vegas without penalty, and had talked with other

employees about his “ball (testicle) soap” but was never fired (Doc. 68, at 12).

Plaintiff also reported personally witnessing Laws make an inappropriate comment

about another employee’s breasts in front of that employee and walking that

employee through how to report such conduct (Doc. 63-1, at 384–85). In response,

Defendant argues that Plaintiff was fired because of the documented complaints

against him made by eight employees (Doc. 69, at 6). Defendant further maintains

that Plaintiff has failed to link the Heddens alleged homophobic beliefs to his

termination on the day Santos gave the Heddens her investigative summary

outlining Plaintiff’s misconduct (Doc. 69, at 6).

In reviewing the evidence, the Court finds that Plaintiff has put forth enough

evidence from which a convincing mosaic of discrimination may be inferred. In

evaluating the considerations set forth Lewis, the Court first notes the suspicious

timing of Plaintiff’s termination. Defendant argues that Plaintiff had been under

investigation by Ms. Hedden for weeks prior to Plaintiff’s complaint about the

flamboyant comment and the investigative summary presented by Ms. Santos on

January 27, 2022, was an intervening act justifying his termination (Doc. 57, at 21).

However, the evidence supporting this timeline is ambiguous at best. It is

undisputed that Ms. Hedden began an investigation into Plaintiff following the

posting of the Glassdoor review attributed to Sellers on December 3, 2021 (Doc. 57-

2, ¶ 10–12; Doc. 57-3, p. 216:6–9, Doc. 68, p. 4–5).

To this very point, a meeting with Ms. Hedden, Plaintiff, and HR specialist

Alex Mayes was held on December 15, 2021 (Doc. 64-1, p. 42–44). At this time,

Ms. Hedden was aware of the complaints made to prior HR director Roneree by

Armani Cooper, Josh Sellers, and Jackson Bennett as well as other complaints made

by or about Plaintiff’s interactions and behaviors towards employees Amber

Keeger, Misty Aquel, Tiffany Rivieccio, and Brad Garinger (Doc. 57, at 2; Doc. 64-

1, p. 42–44). Plaintiff was not fired then, and beyond Ms. Hedden’s testimony, there

is little evidence in the record to show that an investigation into Plaintiff continued

after this meeting. To this point, Ms. Santos testified that Ms. Hedden came to her

after the flamboyant comment controversy and requested that she interview a

designated list of individuals about Plaintiff (Doc. 63-14, at 34, p. 133:19–134:7;

Doc. 63-15, at 44, p. 175:20–25). According to Ms. Santos, Ms. Hedden’s reason

for the sudden request was that she had received an additional “anonymous

complaint” about Plaintiff (Doc. 63-14, at 34 p. 133:24–135:7). Though the

testimony of Ms. Santos and Ms. Hedden conflicts, it is undisputed that Ms. Santos

began conducting recorded interviews days after the flamboyant comment

controversy and presented a summary to Ms. Hedden on December 27th (Doc. 63-

14, at 35–38; Doc. 64-1, at 81–84, 100–150; Doc. 57, at 13, Doc. 68, at 8). Plaintiff

was fired the same day (Doc. 57, at 11; Doc. 68, at 9; Doc. 63-10, at 77–78).

While Ms. Santos’ summary does appear to provide some new information

about Plaintiff’s behavior, the substance and sources of the complaints mirror much

of which was already known by the Heddens (See Doc. 64-1, at 81–84). For

example, in preparation for Plaintiff’s 90-day review, Mr. Hedden solicited feedback

regarding Plaintiff’s behavior from three of the five people Santos conducted

recorded interviews with days later (See Doc. 63-12, at 48:12–53:17). Still, Plaintiff

passed his review and was awarded UAR’s by Mr. Hedden (Doc. 63-12, at 54).

Similarly, every person Ms. Santos conducted a recorded interview with was

referenced in some manner in Ms. Hedden’s recap email of the December 15, 2021

meeting (See Doc. 64-1, p. 42–44). Is it possible that these witnesses were more

forthcoming with Ms. Santos and the totality of the complaints was the motivating

factor behind Marketopia’s decision to terminate Plaintiff on the 27th? Yes, but such

a determination by this Court would invade the province of the jury. Plaintiff has

put forth enough evidence from which it could be inferred that the complaints

against him were mere pretext and the true motivating factor behind his termination

was discrimination against him based on his sexual orientation.4 See Gogel v. Kia

Motors Mfg. of Georgia, Inc., 967 F.3d 1121, 1136 (11th Cir. 2020) (“Thus, to establish

pretext at the summary judgment stage, a plaintiff must demonstrate “such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the

employer's proffered legitimate reasons for its action that a reasonable factfinder

could find them unworthy of credence.”) (internal quotations omitted).

To this point, the Court acknowledges that though Mr. Laws, a sales

employee who was not a part of Marketopia’s executive team, may not qualify as a

true comparator under the McDonnell Douglas framework, Mr. Sauborin’s testimony

does establish an inference of systematic treatment. Thus, the Court reiterates Smith

and finds that Plaintiff’s sexual discrimination claims under Title VII and the FCRA

4 Defendant argues that it is entitled to the same actor inference as Terry and Andra Hedden

were aware of Plaintiff’s sexual orientation when they hired Plaintiff, and it was Ms.

Hedden who fired Plaintiff (Doc. 57, at 20). The same actor inference provides that where

“the hirer and the firer are the same individual and the termination of employment occurs

within a relatively short time span following the hiring, a strong inference exists that

discrimination was not a determining factor for the adverse action taken by the employer.”

E.E.O.C. v. Fla. Com. Sec. Servs., Corp., No. 13-20465-CIV, 2014 WL 4771887 (S.D. Fla.

Sept. 24, 2014) (internal quotations omitted). However, as noted in the very case cited by

Defendant, “same actor” evidence constitutes evidence from which a jury—not the

court—is permitted to infer that [the employer] terminated [the plaintiff] for non-

discriminatory reasons. Williams v. Vitro Servs. Corp., 144 F.3d 1438 (11th Cir. 1998).

Accordingly, the Court will not apply the same actor inference on summary judgment in

narrowly survive summary judgment as he has “present[ed] circumstantial evidence

that creates a triable issue concerning [Defendant’s] discriminatory intent.” Smith,

644 F.3d at 1328. Though Plaintiff’s sexual discrimination claim escapes summary

judgment, the Court notes that the evidence presented by Plaintiff establishing a

genuine issue of material fact is scant and narrowly establishes the minimum

threshold required to survive summary judgment.

C. Retaliation

To establish a prima facie case of retaliation, Plaintiff must show 1) he

engaged in a statutory protected activity; 2) he suffered an adverse employment

action; and 3) there was a casual connection between the protected activity and the

adverse employment action. Copeland v. Georgia Dep't of Corr., 97 F.4th 766, 782

(11th Cir. 2024). Here, Plaintiff argues: 1) he engaged in statutorily protected

conduct by objecting to Mr. Hedden’s use of the term “flamboyant” on January 19,

2022; 2) he suffered an adverse employment action by being fired on January 27,

2022; and 3) a causal connection exists through temporal proximity alone as these

events occurred within eight days of each other (Doc. 68, at 15–16). In response,

Defendant again argues there is no temporal proximity as the production of Santos’

investigative summary was an intervening act that eroded any perceived causal

connection (Doc. 57, at 21–25). In a footnote, Defendant further argues that

Plaintiff’s conduct was not statutorily protected as it was not objectively reasonable

(Doc. 57, at 22 n.3). The Court addresses this point first.

To demonstrate he engaged in a statutorily protected activity, Plaintiff must

show 1) he had a good faith, reasonable belief that Marketopia was engaging in

unlawful employment practices and 2) the belief was “objectively reasonable in light

of the facts and record presented.” Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311–

1312 (11th Cir. 2002) (emphasis in original). Here, Plaintiff subjectively believed

that Mr. Hedden’s use of the term “flamboyant” to describe his dress was

impermissible discrimination based on his sexual orientation, and this belief was

objectively reasonable. Thus, the Court turns to the third element – the casual

connection. The Eleventh Circuit construes the casual link element broadly.

Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1278 (11th Cir. 2008) (“We construe

the causal link element broadly so that a plaintiff merely has to prove that

the protected activity and the negative employment action are not completely

unrelated.” (internal quotations omitted)).

To demonstrate a causal connection, a plaintiff must show: 1) the

decisionmakers knew of his protected activity and 2) the protected activity and the

adverse action weren’t “wholly unrelated.” Shannon v. Bellsouth Telecomms., Inc., 292

F.3d 712, 716 (11th Cir. 2002) In this instance, though there is dispute as to which

Hedden made the ultimate decision to terminate Plaintiff, both were involved in

Plaintiff’s complaint regarding the flamboyant comment. Moreover, only eight days

separated this activity and Plaintiff’s termination. Thus, Plaintiff has established a

prima facie case for retaliation. See Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322,

1337 (11th Cir. 1999) (finding a seven-week gap between a protected activity and

adverse action sufficient to establish a causal connection based on temporal

proximity).

Once a prima facie case has been established, the burden shifts to the

defendant to rebut the presumption of retaliation by producing a legitimate reason

for the adverse employment action. Sullivan v. Nat'l R.R. Passenger Corp., 170 F.3d

1056, 1059 (11th Cir.1999). If the defendant offers a legitimate reason, the

presumption of retaliation disappears, and the plaintiff must show that the

employer’s proffered reason was merely pretext. Id. Here, Defendant has offered a

legitimate reason, the complaints against Plaintiff as summarized in Santos’

investigative summary. However, as discussed at length above, given the timeline

and treatment of other employees, Plaintiff has produced evidence to suggest

Defendant’s proffered reason is merely pretext. Thus, Plaintiff’s retaliation claims

under Title VII and the FCRA survive summary judgment. As with Plaintiff’s

sexual discrimination claim, the Court highlights that Plaintiff’s evidence is just

sufficient enough to withstand summary judgment.

IV. Conclusion

Accordingly, it is hereby

ORDERED:

1. Defendant’s Motion for Summary Judgment (Doc. 57) is GRANTED

IN PART to the extent that partial summary judgment is entered in favor of

Defendant on Count I and Count II of Plaintiff’s Complaint.

2. The Motion is DENIED in all other respects.

DONE AND ORDERED in Tampa, Florida, on this 14th day of March

2025.

[= ff

ANTHONY E. PORCELLI

United Sjfates Magistrate Judge

cc: Counsel of Record