Kamnerdpila v. City of St. Petersburg

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

THIPSUKON KAMNERDPILA,

Plaintiff,

v. Case No. 8:23-cv-2724-VMC-NHA

CITY OF ST. PETERSBURG,

Defendants.

/

ORDER

This matter comes before the Court pursuant to Defendant

City of St. Petersburg’s Amended Dispositive Motion for

Summary Judgment (Doc. # 48), filed on January 9, 2025.

Plaintiff Thipsukon Kamnerdpila responded on February 6, 2024

(Doc. # 51), and Defendant replied on February 21, 2025. (Doc.

# 53). For the reasons that follow, Defendant’s Motion is

granted in part and denied in part.

I. Background

Ms. Kamnerdpila is Thai-American. (Doc. # 52-2 at 17:20-

24). She began working for the City in 2011 as a customer

service representative in the call center. (Id. at 17:5-10).

In 2015, Ms. Kamnerdpila’s position with the City changed, as

she began working as an accounting technician with the Billing

and Collections Department. (Id. at 16:12-22). There were

multiple people who supervised her work: Lauren Gewandter,

Josh Chisholm, Deidre Moultin, and Tionti Thomas. (Id. at

16:10-12). Ms. Gewandter was the Billing Manager for the

Billing and Collections Department for the City. (Doc. # 46

at 1). Ms. Gewandter worked under Tammy Jerome, who was the

director of the Department. (Doc. # 52-1 at 1). Ms. Gewandter

and Ms. Thomas were Ms. Kamnerdpila’s main supervisors. (Doc.

# 46 at 2). They also supervised other employees in the

Department, such as Grayson MacKinnon, Kathryn McDow, and

Elizbeth Ridgeway. (Id. at 3-4; Doc. # 52-2 at 23:24-25:11).

On April 15, 2021, Ms. Gewandter issued a memorandum to

the Department reminding the employees of their individual

responsibility to resolve accounts removed from the regular

billing cycle before the next billing cycle. (Doc. # 52-2 at

135). On July 15, 2021, Ms. Kamnerdpila received verbal

counselling and a written memorandum following two erroneous

adjustments she processed on May 24, 2021, and June 14, 2021,

and her failure to complete her work prior to going on

vacation. (Id. at 136). Ms. Kamnerdpila’s explanation for the

first error is that she notified Ms. Moulton of her inability

to complete her work while on vacation, which she believed

was an accepted practice at the time. (Doc. # 52-1 at 2).

Her explanation for the second error is that she had asked

her co-worker to complete her work, but that co-worker was

unable to do so. (Doc. # 52-2 at 47:3-8).

On August 30, 2021, Ms. Thomas sent an email to the

Department containing a guideline for time management and

providing a daily schedule by which employees were expected

to complete their tasks. (Id. at 143). On November 9, 2021,

Ms. Kamnerdpila received another written memorandum for

attendance-related misconduct due to calling out of work less

than 30 minutes before the start of her workday. (Id. at 137).

On that same day, Ms. Kamnerdpila received a formal

disciplinary notice regarding a failure to complete her

Billing Register in accordance with the August 30, 2021,

guidelines. (Id. at 139-40). Ms. Kamnerdpila filed a

grievance related to this disciplinary notice, in which she

argued that the guideline was not an official policy and that

other employees, Mr. Mackinnon and Luis Moreno, frequently

failed to complete their reports within the expected

timeframe. (Doc. # 52-1 at 3). Ms. Kamnerdpila claims that,

in response to her grievance, the City admitted that the

guidelines did not constitute official policy. (Id.).

On February 15, 2022, Ms. Kamnerdpila received a second

disciplinary notice. (Doc. # 52-2 at 141-42). The notice

identified two forms of misconduct: first, that she was

“discourteous in-person and via email and did not follow

instructions provided by her supervisors” on December 6,

2021, and February 1, 2022; and second, that she generated

incorrect utility bills, as $3,966.92 in credits were

incorrectly placed on these accounts. (Id.). As a result of

these infractions, she received a two-day suspension and was

informed that continued misconduct would result in

“progressive discipline, up to and including termination of

employment.” (Id.). As to the first error, Ms. Kamnerdpila

claims that on each event, she was following Department

policies and other directives from Ms. Gewandter and Ms.

Thomas, but Ms. Moultin did not agree with her actions and

became “argumentative” and “acted rudely” in response to her

trying to follow the directives from the Department managers.

(Doc. # 52-1 at 3). As to the second error, she claims that

the notice “grossly misrepresented a minor mistake in order

to justify the two day suspension and to push me closer to

termination.” (Id. at 4).

On April 26, 2022, Ms. Kamnerdpila submitted a written

statement to Human Resources alleging discrimination based on

her race and/or national origin, and then supplemented it

with an age discrimination claim on May 10, 2022. (Doc. # 52-

2 at 144-46). Ms. Jerome received a copy of the statement on

May 10, 2022. (Doc. # 52-4 at 32:2). In that statement, Ms.

Kamnerdpila claimed that she had “been berated for [her] use

of English.” (Doc. # 52-2 at 146). As she explained further

in her deposition, Ms. Kamnerdpila claimed that Ms. Gewandter

told her that her communication was “not understandable, that

– that you know, it’s just not clear, it’s not concise, it’s

not understandable. It’s she – she - she didn’t understand.”

(Id. at 25:20-23). In the statement, Ms. Kamnerdpila asserted

that she was “being singled out by fictitious allegations,”

which demonstrates that she was “working under scrutiny and

a hostile work environment.” (Doc. # 52-2 at 144). Ms.

Kamnerdpila averred that her supervisors were “looking for

things that are not a mistake and write [her] up – not write

[her] up but suspended [her] for something that did not cause

any harm to the City, but yet they were overlooking those

things that are more serious that [her] white coworkers

[Grayson MacKinnon and Elizabeth Ridgeway] are doing.” (Id.

at 38:9-13).

In response to Ms. Kamnerdpila’s statement to Human

Resources, Christopher Guella, the City’s Human Resources

Director, conducted an investigation. (Doc. # 45 at 2). Mr.

Guella interviewed Ms. Jerome, Ms. Gewandter, Freda Exum, Ms.

Moultin, Ms. Thomas, Mr. Chisholm, Ms. McDow, and Carolyn

Ferguson. (Id. at 149). In the report on the investigation,

Mr. Guella noted “the considerable racial diversity among

those disciplined.” (Id. at 150). Mr. Guella did not interview

Ms. Kamnerdpila or Zalika Santiago, the only other Asian

employee within the Department. (Id. at 149). The

investigation “found no evidence that management

disproportionately disciplined, belittled, or otherwise

discriminated against Kamnerdpila because of her national

origin and/or age.” (Id. at 151).

On May 3, 2022, Ms. Kamnerdpila took leave under the

Family and Medical Leave Act (“FMLA”) due to a severe sinus

infection. (Doc. # 52-1 at 5). At around 5:30 p.m. that day,

she went into the office. (Id.). Ms. Kamnerdpila asserts that

she did so because she needed to access her work email because

she learned from her union representative that it was the

last day to submit a form to appeal her two-day suspension.

(Id.). She also acknowledged that she knew that she was not

supposed to go into the office while sick. (Doc. # 52-2 at

84:16-24). As she arrived, she ran into Ms. Gewandter and Ms.

Thomas. (Doc. # 52-1 at 5). She avows that she told them that

she “needed to log in briefly to print a form from [her] work

email,” to which Ms. Gewandter “warned [Ms. Kamnerdpila] that

the system was running an update, and [Ms. Kamnerdpila] told

[Ms. Gewandter that] [she] only needed to access [her] email.”

(Id.). Ms. Kamnerdpila then went to her computer to access

her email, leading Ms. Gewandter to tell her she “could not

turn on [her] computer.” (Id. at 6). In response, Ms.

Kamnerdpila called her “Union representative to ask him what

[her] rights were in obtaining [her] grievance form. [She]

could not reach him, so [she] turned [her] computer back off

and left.” (Id.). On May 10, 2022, Ms. Kamnerdpila filed a

supplemental report of discrimination related to the

encounter. (Id.).

On May 11, 2022, the City terminated Ms. Kamnerdpila.

(Doc. # 52-2 at 149-51). The accompanying notice issued by

Ms. Jerome, Ms. Gewandter, and Ms. Thomas explained that “Ms.

Kamnerdpila’s disregard for her job duties and failure to

follow Departmental policies is unacceptable and adversely

impacts the efficiency of our operations which severely

hampers our ability to appropriately service the public.”

(Id. at 150). The notice listed multiple violations,

including two “Group III” violations: one for insubordination

for refusing to leave the building when instructed to by her

supervisors, and one for this being her third violation of

the City’s employment policies. (Id. at 149-50). Per the

employee policy handbook, a Group III violation results in

dismissal. (Doc. # 45-1 at 7:11). Ms. Jerome concluded that

Ms. Kamnerdpila “demonstrated she is unable and unwilling to

comply with the requirements for continued employment with

the City of St. Petersburg; therefore, termination of her

employment is warranted.” (Doc. # 52-2 at 150-51).

Ms. Kamnerdpila and her co-workers have different

explanations for this series of events. Ms. Santiago, who is

also Asian-American, testified that Ms. Kamnerdpila “sat in

front of [her] so [she] knew what was going on.” (Doc. # 52-

6 at 36:12-13). She testified that Ms. Jerome, Ms. Gewandter,

Ms. Thomas, and Ms. Moultin “would give [Ms. Kamnerdpila] so

much work. They purposely would do it because they knew that

she takes her time [to] do her work. So when she doesn’t get

something completely [done], she tries to write her up because

they wanted to get rid of [her] at that time, just as me.”

(Id. at 36:14-19). When asked whether Ms. Kamnerdpila was

treated differently from her co-workers, Ms. Santiago said

“yeah” and that “one time when [Ms. Kamnerdpila] had to check

adjustment, for example, she was given a certain time, but I

can tell you, for example, Grayson MacKinnon . . . was given

a different time . . . . He’s white . . . . Alyce is white.

She was given different time.” (Id. at 38:10-16).

Mr. Chisholm shared similar stories. He testified that

Mr. Mackinnon and Ms. Ridgeway did “not get written up for

attendance issues.” (Doc. # 52-7 at 17:14-21). He also

asserted that Mr. Mackinnon had “numerous issues with his

work that seems to kind of just get brushed over, not taken

as seriously as other people having issues with their work.”

(Id. at 17:25-18:2). He also testified that Ms. Santiago was

focused upon for criticism from supervisors. (Id. at 18:15-

24).

Ms. Kamnerdpila testified that Mr. Mackninnon would

“call in every Monday during football season for a long period

of time. You know, they never got in trouble as far as . . .

getting to being suspended.” (Doc. # 52-2 at 23:9-11). She

argued that errors by her co-workers were “overlooked because

they’re not Asian . . . . Elizabeth Ridgeway who was assigned

a rotation job of scanning records to the system, she was a

month behind. She didn’t get penalized.” (Id. at 23:22-24:2).

In summary, Ms. Kamnerdpila testified that “there are people

who are doing serious mistakes that did not get penalized but

yet for [her] they comb through with the comb . . . to find

something, and if it didn’t fit, they’ll try to fit it.” (Id.

at 24:7-11).

Since the filing of this Motion, Ms. Kamnerdpila

submitted a sworn affidavit from Ms. Thomas, who was a middle

manager between Ms. Kamnerdpila and Ms. Gewandter. Ms.

Thomas’s affidavit seeks to correct her prior testimony

because she has since resigned and no longer fears retaliation

from Ms. Gewandter. (Doc. # 54). Ms. Thomas now avers that

she is “aware of multiple instances where non-Asian

Accounting Technicians were not penalized for more serious

offenses than those attributed to [Ms. Kamnerdpila].” (Doc.

# 54-1 at 1-2). She then explains that Ms. Gewandter “often

ignored or covered up [Mr. MacKinnon]’s mistakes when [she]

brought them to her attention.” (Id. at 2). She avows to “have

documented evidence that supports these claims” and that

“[i]f called as a witness, [she] would testify to the truth

of the matters stated in this affidavit.” (Id.).

On November 29, 2023, Ms. Kamnerdpila filed a complaint

against the City . (Doc. # 1). On July 9, 2024, the Court

granted the City’s motion to dismiss the complaint in its

entirety and granted leave for Ms. Kamnerdpila to amend her

complaint. (Doc. # 32).

On July 23, 2024, Ms. Kamnerdpila filed an amended

complaint, which is the operative complaint. (Doc. # 33). The

amended complaint contains four counts: violation of Title

VII of the Civil Rights Act for discrimination on the basis

of race, color, and national origin (Count One); violation of

Title VII of the Civil Rights Act in retaliation for engaging

in protected activity (Count Two); violation of the Florida

Civil Rights Act for discrimination on the basis of race,

color, and national origin (Count Three); and violation of

the Florida Civil Rights Act in retaliation for engaging in

protected activity (Count Four). (Id.).

The City filed its Amended Dispositive Motion for

Summary Judgment on January 9, 2025. (Doc. # 48). Ms.

Kamnerdpila responded on February 6, 2025 (Doc. # 51), and

the City replied on February 21, 2025. (Doc. # 53). The Motion

is ripe for review.

II. Legal Standard

Summary judgment is appropriate “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). A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are

no genuine issues of material fact that should be decided at

trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

(11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)). “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) (quoting Celotex Corp., 477 U.S. at

324).

If there is a conflict between the parties’ allegations

or evidence, the non-moving party’s evidence is presumed to

be true, and all reasonable inferences must be drawn in the

non-moving party’s favor. Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder

evaluating the evidence could draw more than one inference

from the facts, and if that inference introduces a genuine

issue of material fact, the court should not grant summary

judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s

response consists of nothing “more than a repetition of his

conclusional allegations,” summary judgment is not only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

III. Discussion

A. Motion to Supplement the Record

As an initial matter, the Court notes that Ms.

Kamnerdpila filed a Motion to Supplement the Record (Doc. #

54), which seeks to supplement the record with an affidavit

from Ms. Thomas. (Doc. # 54-1). Ms. Kamnerdpila represents

that “[t]his evidence was not included in Plaintiff’s

Response because Ms. Thomas did not discuss these issues in

her deposition [as] she feared retaliation. She has since

resigned from her position with the City and wants to correct

her previous testimony.” (Doc. # 54 at 3). The Local Rule

3.01(g) certification indicated that the City opposed the

motion (Doc. # 54 at 3), but the City then failed to file its

response within 14 days as required by Local Rule 3.01(c).

Thus, the Court may treat the motion as unopposed.

Even though the affidavit was filed after the discovery

deadline, the Court may allow the record to be supplemented

“on motion made after the time has expired if the party failed

to act because of excusable neglect.” Fed. R. Civ. P. 6. The

Court finds that Ms. Kamnerdpila’s failure to obtain this

record until after the deadline was excusable. See Pioneer

Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S.

380, 395 (1993) (“Because Congress has provided no other

guideposts for determining what sorts of neglect will be

considered ‘excusable,’ we conclude that the determination is

at bottom an equitable one, taking account of all relevant

circumstances surrounding the party's omission.”). Ms.

Kamnerdpila could not have obtained Ms. Thomas’s affidavit

until the point at which she did because Ms. Thomas was

unwilling to come forward to correct her deposition until she

had resigned. Thus, Ms. Kamnerdpila may supplement the record

with Ms. Thomas’s affidavit, and the Court grants the Motion

to Supplement.

B. Motion for Summary Judgment

The City moves for summary judgment on each of Ms.

Kamnerdpila’s four claims. (Doc. # 48). She raises two claims,

one under the FCRA and one under Title VII, asserting

discrimination on the basis of race, color, and national

origin based on the same facts. (Id.). She raises two claims,

one under the FCRA and one under Title VII, asserting

retaliation for engaging in protected activity based on the

same facts. (Id.). “Because the FCRA is modeled on Title VII,

Florida courts apply Title VII caselaw when they interpret

the FCRA.” Jones v. United Space All., L.L.C., 494 F.3d 1306,

1310 (11th Cir. 2007). Therefore, the Court will analyze the

FCRA claims together with the Title VII claims by

consolidating its discussion into two sections between the

discrimination claim and the retaliation claim.

1. Discrimination Claims

Ms. Kamnerdpila’s discrimination claims are based on two

different theories: disparate treatment and hostile work

environment. (Doc. # 33 at 10-11, 15). The Court evaluates

each theory in turn.

i. Disparate Treatment

The City argues that Ms. Kamnerdpila has failed to

establish a prima facie case of discrimination for disparate

treatment or discharge. (Doc. # 48 at 11). The Court

disagrees.

“Employment discrimination claims all require proof of

discriminatory intent.” Trask v. Sec’y, Dep’t of Veterans

Affs., 822 F.3d 1179, 1191 (11th Cir. 2016). “In order to

survive summary judgment . . . , the plaintiff bears the

initial burden of establishing a prima facie case of

discrimination by showing (1) that she belongs to a protected

class, (2) that she was subjected to an adverse employment

action, (3) that she was qualified to perform the job in

question, and (4) that her employer treated ‘similarly

situated’ employees outside her class more favorably.” Lewis

v. City of Union City, 918 F.3d 1213, 1220-21 (11th Cir.

2019). For purposes of its Motion, the City concedes that Ms.

Kamnerdpila meets the first and third prongs. (Doc. # 48 at

13). However, the Court notes that the City does not

explicitly raise any arguments related to the second prong,

instead focusing the entirety of its argument on Ms.

Kamnerdpila’s alleged inability to meet the fourth prong.

(Id. at 13-16). Thus, the Court finds that the crux of the

parties’ dispute is whether she can meet the fourth prong.

The City asks the Court to apply an outdated standard

from Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999),

that to be similarly situated to Ms. Kamnerdpila a comparator

would need to be “nearly identical.” (Doc. # 48 at 16). This

standard was abrogated by Lewis, which held that the “nearly-

identical test is too strict. We hold, instead — without

trying to force an artificial gloss — that a plaintiff must

show that she and her comparators are ‘similarly situated in

all material respects.’” 918 F.3d at 1224. Under this

standard, Ms. Kamnerdpila “needn’t prove, therefore, that she

and her comparators are identical save for their [protected

characteristic], as the case may be . . . . Nor will minor

differences in job function disqualify a would-be

comparator.” Id. at 1227. “[A] similarly situated comparator

will ordinarily have engaged in the same basic conduct as the

plaintiff, will have been subject to the same employment

policy, will have ordinarily had the same supervisor, and

will share the plaintiff’s employment or disciplinary

history.” McNeal v. Int’l Paper, No. 21-12672, 2022 WL

5434274, at *3 (11th Cir. Oct. 7, 2022) (internal quotations

omitted).

Ms. Kamnerdpila has raised a genuine dispute over

whether the City “treated ‘similarly situated’ employees

outside her class more favorably.” Lewis, 918 F.3d at 1221.

Ms. Kamnerdpila points to her own sworn deposition testimony

and that of her co-workers detailing how non-Asian co-workers

made similar errors but were not equally disciplined. (Doc.

# 51 at 11-14). Presuming her evidence is true at this stage

as the Court must, the Court finds that the evidence shows

that the City treated similarly situated employees more

favorably. Shotz, 344 F.3d at 1164.

The testimony mainly focuses upon two white co-workers,

Mr. MacKinnon and Ms. Ridgeway, who were also employees in

the billing Department. (Doc. # 52-1 at 2). These employees

had the same supervisor and were subject to the same

employment policies. Id.; (Doc. # 52-2 at 135, 143); see

McNeal v. Int’l Paper, No. 21-12672, 2022 WL 5434274, at *3

(listing whether employees had the same supervisors and were

subject to the same employment policies as important

considerations). Prior to April 2021 when the events leading

to this lawsuit began, there is no record evidence that Ms.

Kamnerdpila had any disciplinary history. (Doc. # 52-2 at

139). There is similarly no record evidence that Mr. MacKinnon

or Ms. Ridgeway had any disciplinary history either. See

McNeal, 2022 WL 5434274, at *3 (listing the similarity between

disciplinary histories as an important consideration).

Thus, the critical question is whether these employees

engaged in the “same basic conduct” as Ms. Kamnerdpila. Id.

In the record, the Court finds significant evidence that Ms.

Ridgeway and Mr. MacKinnon engaged in the same alleged

misconduct as Ms. Kamnerdpila but faced lesser discipline in

response. The Court evaluates this evidence in turn.

Taking her evidence as true, Ms. Kamnerdpila was treated

less favorably than Ms. Ridgeway and Mr. MacKinnon in being

disciplined. Ms. Santiago testified that Ms. Jerome, Ms.

Gewandter, Ms. Thomas, and Ms. Moultin “would give [Ms.

Kamnerdpila] so much work. They purposely would do it because

they knew that she takes her time and (sic) do her work. So

when she doesn’t get something completely, she tries to write

her up because they wanted to get rid of [her] at that time,

just as me.” (Id. at 36:14-19). When asked whether Ms.

Kamnerdpila was treated differently from her co-workers, Ms.

Santiago said “yeah” and that “one time when [Ms. Kamnerdpila]

had to check adjustment, for example, she was given a certain

time, but I can tell you, for example, Grayson MacKinnon . .

. was given a different time.” (Id. at 38:10-16).

Ms. Thomas’s affidavit buttresses this testimony. She

avers that Mr. MacKinnon would “not bill on time” and she

“personally witnessed [Ms. Gewandter] placing her hold code

on some of Mr. MacKinnon’s accounts to either assist him in

working them or to cover up for him.” (Doc. # 54-1 at 2); see

also (Doc. # 52-7 at 17:25-18-2) (Mr. Chisholm testified that

Mr. MacKinnon had “numerous issues with his work that seems

to kind of just get brushed over, not taken as seriously as

other people having issues with their work.”). As to Ms.

Ridgeway, Ms. Kamnerdpila testified that Ms. Ridgeway “was

assigned a rotation job of scanning records to the system,

she was a month behind. She didn’t get penalized.” (Doc. #

52-2 at 23:22-24:2). In contrast, Ms. Kamnerdpila received a

written disciplinary notice for failing to complete her work

within the prescribed time. (Doc. # 52-2 at 135-36).

Therefore, it appears Ms. Kamnerdpila was given more work

than her co-workers who had the same job responsibilities but

was given less time to complete this work. Then, she was

punished for not completing her work in time. Meanwhile, Mr.

MacKinnon and Ms. Ridgeway were not punished for being

similarly late in their work.

The record also contains evidence that Ms. Ridgeway and

Mr. MacKinnon committed similar attendance infractions as Ms.

Kamnerdpila. Mr. Chisholm testified that Mr. Mackinnon and

Ms. Ridgeway did “not get written up for attendance issues.”

(Doc. # 52-7 at 17:14-21). Ms. Kamnerdpila testified that Mr.

MacKinnon would “call in every Monday during football season

for a long period of time. You know, they never got in trouble

as far as . . . getting to being suspended.” (Doc. # 52-2 at

23:9-11). In contrast, Ms. Kamnerdpila received a written

memorandum for attendance-related misconduct due to calling

out of work less than 30 minutes before the start of her

workday. (Id. at 137). The City notes that Mr. MacKinnon was

in fact disciplined for “chronic absenteeism” resulting in an

employee notice. (Doc. # 46 at 7). However, this raises a

factual dispute within the record evidence. For the purposes

of summary judgment, the Court must presume that the record

evidence favorable to Ms. Kamnerdpila is true. Shotz, 344

F.3d at 1164. Thus, the Court concludes that Ms. Kamnerdpila’s

co-workers were similarly violating the City’s attendance

policies but, unlike Ms. Kamnerdpila, evaded discipline for

doing so.

Despite this substantial evidence detailing allegedly

favorable treatment towards Ms. Ridgeway and Mr. MacKinnon,

the City argues that they are insufficient comparators

because they did not engage in the misconduct which led to

Ms. Kamnerdpila’s termination - going into work while on FMLA

leave. (Doc. # 48 at 16). However, Ms. Kamnerdpila testified

that Ms. Ridgeway was allowed to remain in the office after

the end of the work-day, which the employment policies

prohibited, and Ms. Gewandter and Ms. Thomas knew she was

there but did not punish her. (Doc. # 52-2 at 33:12-34:14).

The City claims that Ms. Kamnerdpila’s unauthorized presence

in the office is categorically different than her co-workers’

unauthorized presence in the office because she did so while

on FMLA leave. (Doc. # 48 at 16). This distinction is too

exacting. See Lewis, 918 F.3d at 1224 (“The nearly-identical

test is too strict.”). Rather, the Court finds that the

similarity of the misconduct engaged in by Ms. Kamnerdpila

and Ms. Ridgeway – being in the office when they were not

authorized to do so – is sufficient to make Ms. Kamnerdpila

“similarly situated in all material respects” to Ms.

Ridgeway. Id.; see Pearson v. Georgia through Davis, 806 F.

App’x 940, 948-49 (11th Cir. 2020) (finding that plaintiff

engaged in same basic misconduct as her comparators when they

were illicitly accruing comp time through the manipulations

of their time cards, without analyzing whether their methods

of manipulation were the same).

Therefore, the Court finds that Ms. Kamnerdpila has

established a prima facie case for her discrimination claim.

“Once the plaintiff has made a prima facie case, a rebuttable

presumption arises that the employer has acted illegally. The

employer can rebut that presumption by articulating one or

more legitimate non-discriminatory reasons for its action. If

it does so, the burden shifts back to the plaintiff to produce

evidence that the employer’s proffered reasons are a pretext

for discrimination.” Trask, 822 F.3d at 1191 (internal

quotations omitted). In demonstrating pretext, a “plaintiff

is not allowed to recast an employer’s proffered

nondiscriminatory reasons or substitute her business judgment

for that of the employer. Provided that the proffered reason

is one that might motivate a reasonable employer, an employee

must meet that reason head on and rebut it, and she cannot

succeed by simply quarreling with the wisdom of that reason.”

Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1265-66

(11th Cir. 2010).

The City argues that it can rebut the presumption that

it acted illegally in disciplining and ultimately terminating

Ms. Kamnerdpila. (Doc. # 48 at 17-18). The City cites Ms.

Kamnerdpila’s consistent violations of various employment

policies and management’s repeated efforts to counsel her, as

legitimate non-discriminatory reasons for her discipline and

termination. (Id.); (Doc. # 46 at 1-5); (Doc. # 52-2 at 136-

151). However, Ms. Kamnerdpila can point to significant

evidence that these reasons are pretextual. See Trask, 822

F.3d at 1191 (requiring plaintiff to “produce evidence that

the employer’s proffered reasons are a pretext for

discrimination”).

As already explained, Ms. Kamnerdpila was committing the

same misconduct as her co-workers relating to attendance and

completing her work in a timely manner, but was disciplined

more severely. This culture of favoritism and selective

enforcement conforms with multiple employees’ descriptions of

the workplace. For example, Mr. Chisholm claimed that Ms.

Jerome and Mr. Gewandter “were playing favorites” by refusing

to discipline Ms. Ridgeway and Mr. MacKinnon (Doc. # 52-7 at

17:6-21), while Ms. Santiago testified that she and Ms.

Kamnerdpila “were getting written up constantly, being talked

to constantly, being spoken down to constantly versus the

other people.” (Doc. # 52-6 at 38:19-23). Ms. Thomas perfectly

summarizes these descriptions by claiming that there were

“multiple instances where non-Asian Accounting Technicians

were not penalized for more serious offenses than those

attributed to [Ms.] Kamnerdpila.” (Doc. # 54-1 at 1-2).

Additionally, Ms. Kamnerdpila and Ms. Santiago each

claim that Ms. Gewandter critiqued them for their supposed

accents when speaking English, claiming that she had

difficulty understanding them. (Doc. # 52-2 at 25:20-32; Doc.

# 52-6 at 46:6-19). There is no direct evidence that Ms.

Gewandter gave less favorable treatment to Ms. Kamnerdpila or

Ms. Santiago as a result of her opinions of their English-

speaking skills. However, the Court notes that this is one

possible explanation for why Ms. Gewandter engaged in a

pattern of treating their non-Asian co-workers more

favorably.

As Ms. Kamnerdpila was committing the same misconduct as

her co-workers, the City’s disproportionate discipline cannot

form a reasonable exercise of its business judgment. See

Alvarez, 610 F.3d at 1265-66 (holding that defendants are

entitled to business judgment in consideration of their

proffered non-discriminatory reasons). Rather, if all

reasonable inferences are made in favor of Ms. Kamnerdpila,

then a reasonable juror could conclude that the City’s

disproportionate discipline was the result of discrimination

as the City granted favorable treatment to non-Asian

employees. Shotz, 344 F.3d at 1164. Thus, for purposes of

summary judgment, the Court finds that Ms. Kamnerdpila has

successfully shown that the City’s proffered non-

discriminatory reasons are pretextual. See Trask, 822 F.3d at

1191 (requiring plaintiff to “produce evidence that the

employer’s proffered reasons are a pretext for

discrimination”).

The Court denies the City’s Motion in so far as it seeks

summary judgment for Ms. Kamnerdpila’s claims of

discrimination by disparate treatment.

ii. Hostile Work Environment

The City argues that Ms. Kamnerdpila cannot establish

that she was discriminated against through a hostile work

environment. (Doc. # 48 at 18-21). The Court agrees.

“To prove a prima facie case of hostile work environment,

a plaintiff must establish that: (1) he or she belonged to a

protected group, (2) he or she was subjected to unwelcome

harassment, (3) the harassment was based on a protected

characteristic, (4) the harassment was sufficiently severe or

pervasive to alter the terms and conditions of his or her

employment and create an abusive working environment, and (5)

a basis exists for holding the employer liable.” Trask, 822

F.3d at 1195.

“The fourth element requires a plaintiff to prove that

the work environment is both subjectively and objectively

hostile.” Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240,

1249 (11th Cir. 2014). “To evaluate whether a work environment

is objectively hostile, [courts] consider four 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.” Id. at 1250-51 (citation and internal quotation

marks omitted). “‘No single factor is required’ to establish

the objective component. Instead, the court is to judge the

totality of the circumstances.” Nelson v. Keep Smiling

Dental, P.A., No. 8:21-cv-189-VMC-JSS, 2022 WL 485244, at *7

(M.D. Fla. Feb. 17, 2022) (citation omitted).

Ms. Kamnerdpila cannot establish that the discrimination

she experienced was objectively severe or pervasive to prove

a hostile work environment. True, Ms. Kamnerdpila claims that

Ms. Gewandter commented negatively on her English-speaking

skills. (Doc. # 52-2 at 25:20-23, 146). These comments are

certainly offensive and insulting. However, the Eleventh

Circuit holds that that the discrimination needs to extend

beyond a “mere offensive utterance” to establish a hostile

work environment. Adams, 754 F.3d at 1250-51; see also Harris

v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (“[M]ere

utterance of an epithet which engenders offensive feelings in

a[n] employee, does not sufficiently affect the conditions of

employment to implicate Title VII.” (internal quotation and

citation omitted)). Thus, Ms. Gewandter’s derogatory comments

were insufficient to establish a hostile work environment.

See Thomas v. NHS Mgmt., LLC, No. 2:23-CV-443-RAH, 2024 WL

1054567, at *4 (M.D. Ala. Mar. 11, 2024) (“The ‘mere utterance

of an ethnic or racial epithet,’ even when directly aimed at

the plaintiff, is not sufficient.” (quoting Rogers v.

E.E.O.C., 454 F.2d 234, 238 (5th Cir. 1971)).

This type of conduct is far less significant than that

held sufficient to survive summary judgment by other courts.

See, e.g., Hedgeman v. Austal, U.S.A., L.L.C., 866 F. Supp.

2d 1351, 1364 (S.D. Ala. 2011) (holding that hostile work

environment claim based on racial harassment survived summary

judgment where Caucasian co-workers and supervisors referred

to African Americans by racial slurs “on an almost daily basis

during [plaintiff’s] employment,” plaintiff “regularly

encountered racial graffiti” in the workplace bathrooms, and

“images of the Confederate flag . . . permeated the workplace

as regularly displayed and/or worn on Caucasian co-workers’

t-shirts”); Nelson, 2022 WL 485244, at *6 (hostile work

environment claim survived summary judgment where plaintiff’s

supervisor called plaintiff a “‘stupid black b___’ on more

than five occasions and ‘possibly’ on more than 10 occasions

over a two-year period,” “taunted [plaintiff] about being

late, saying that was the ‘colored people time that they talk

about,’” and “made comments about [plaintiff’s] eating

habits, telling [plaintiff] ‘You better stop eating that n--

--- food. You’re going to get too fat’”).

Additionally, the Court finds insufficient evidence that

Ms. Gewandter made the comments frequently. See Adams, 745

F.3d at 1256 (holding that plaintiff needed to “sufficiently

establish that she heard the slur frequently”). While Ms.

Kamnerdpila alleged that Ms. Gewandter critiqued her English

(Doc. # 52-2 at 25:20-23, 146), these allegations do not

provide any evidence of the frequency of these comments by

Ms. Gewandter.

Having found that Ms. Kamnerdpila has failed to

establish that her work environment is objectively hostile,

the Court concludes that the City is entitled to summary

judgment on Ms. Kamnerdpila’s hostile work environment claim.

Adams, 754 F.3d at 1249. Accordingly, the Court grants summary

judgment to the City on Counts One and Three in so far as

they are based upon a hostile work environment.

2. Retaliation Claims

The City next argues that it is entitled to summary

judgment on Ms. Kamnerdpila’s retaliation claims. (Doc. # 48

at 22). The Court disagrees.

“To establish a prima facie case of retaliation under

Title VII, a plaintiff must prove the following elements: (1)

she participated in an activity protected by Title VII; (2)

she suffered an adverse employment action; and (3) there is

a causal connection between the participation in the

protected activity and the adverse employment decision.”

Pipkins v. City of Temple Terrace, 267 F.3d 1197, 1201 (11th

Cir. 2001). The City concedes that Ms. Kamnerdpila can satisfy

the first two prongs. (Doc. # 48 at 22).

Thus, the dispute is over whether she can satisfy the

third prong. “The burden of causation can be met by showing

close temporal proximity between the statutorily protected

activity and the adverse employment action.” Thomas v. Cooper

Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). Ms.

Kamnerdpila asserts that her termination was in retaliation

for her filing a complaint to human resources. (Doc. # 33 at

13, 16-17). She submitted her complaint on April 26, 2022,

and supplemented the complaint on May 10, 2022. (Doc. # 52-2

at 144-46). She was terminated by the City on May 11, 2022.

(Id. at 149-151). Accordingly, the adverse employment action

occurred either one or fifteen days after her protected act.

This short period between the adverse employment and the

protected act is sufficient to establish a causal connection.

See Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004)

(“We have held that a period as much as one month between the

protected expression and the adverse action is not too

protracted.”). Having established a causal connection, Ms.

Kamnerdpila satisfies all three prongs of the prima facie

case for retaliation. See Id. (“A ‘close temporal proximity’

between the protected expression and an adverse action is

sufficient circumstantial evidence of a causal connection for

purposes of a prima facie case.”).

Nevertheless, the City argues that Ms. Kamnerdpila’s

retaliation claim must fail for two reasons. (Doc. # 53 at 4-

7). On each reason, the City falls short.

First, the City argues that Ms. Kamnerdpila needs to

prove that its proffered reason for her termination is

pretextual, which she cannot do. (Id. at 4). It is correct

that Ms. Kamnerdpila must show that the City’s claim that it

terminated her because of her violation of FMLA leave is

pretextual. See Berry v. Crestwood Healthcare LP, 84 F.4th

1300, 1307 (11th Cir. 2023). (“To prove that an employer’s

explanation is pretextual, an employee must cast enough doubt

on its veracity that a reasonable factfinder could find it

‘unworthy of credence.’”). However, the Court already

explained in-depth above that the record contains significant

evidence that the City’s termination of Ms. Kamnderpila was

pretextual. Therefore, the City’s argument fails because Ms.

Kamnerdpila has successfully “cast[ed] enough doubt” that the

City’s reasons for her termination was pretextual. Id.

Second, the City argues that Ms. Kamnerdpila’s violation

of FMLA leave broke the causal chain between her complaint to

human resources and subsequent termination. (Doc. # 53 at 5-

7). “Intervening acts of misconduct can break any causal link

between the protected conduct and the adverse employment

action.” Henderson v. FedEx Express, 442 F. App’x 502, 506

(11th Cir. 2011). The City argues that Ms. Kamnerdpila’s

entrance into the office while on FMLA leave was such an

intervening act because it was the actual cause of her prompt

termination. (Doc. # 53 at 5-7). Perhaps it is the actual

cause. But as already explained, the Court finds that, when

making all reasonable inferences in Ms. Kamnerdpila’s favor,

the record contains sufficient evidence that Ms.

Kamnerdpila’s complaint to Human Resources caused her

termination. Thus, the City asks the Court to resolve a

factual dispute by adjudicating which party’s evidence is

correct. For purposes of summary judgment, the Court may not

do so. Samples ex rel. Samples, 846 F.2d at 1330 (“If a

reasonable fact finder evaluating the evidence could draw

more than one inference from the facts, and if that inference

introduces a genuine issue of material fact, the court should

not grant summary judgment.”). Therefore, this argument

fails. A jury must ultimately make this determination on the

retaliation claims.

Accordingly, it 1s now

ORDERED, ADJUDGED, and DECREED:

(1) Defendant City of St. Petersburg’s Amended Dispositive

Motion for Summary Judgment (Doc. # 48) is GRANTED in

part and DENIED in part.

(2) Summary judgment is granted in favor of the City on

Counts One and Three in so far as they are based upon a

hostile work environment.

(3) The case will proceed to trial on the remainder of Counts

One and Three, and on Counts Two and Four.

(4) Plaintiff Thipsukon Kamnerdpila’s Motion to Supplement

the Record (Doc. # 54) is GRANTED.

DONE and ORDERED in Chambers in Tampa, Florida, this

3list day of March, 2025.

VIRGINIA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE

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