# D'Franco v. Fountainebleau Florida Hotel, LLC

> District Court, S.D. Florida · March 7, 2025

URL: https://www.frixlaw.com/law-library/cases/10840151

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** March 7, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10840151

## How later opinions describe it (automated extraction)

- affirming ruling that the plaintiff’s § 1981 disparate pay claim was time barred because the entire period during which she was allegedly paid less because of her race occurred before the filing period
- holding that withdrawal of assignments and termination could support hostile work environment claim mainly comprised of discriminatory remarks about the plaintiff’s religion, making the claim timely
- holding that a continuing violation of Title VII by failing to promote the plaintiff for years justified the district court’s award of back pay “to the earliest statutory limit”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No. 1:23-CV-22476-RAR

ROMAELLO D’FRANCO,

Plaintiff,

v.

FONTAINEBLEAU FLORIDA HOTEL, LLC

Defendant.

________________________________________/

REPORT AND RECOMMENDATIONS
THIS CAUSE is before the Court on Defendant’s Motion for Partial Summary Judgment
(ECF No. 44),1 which is accompanied by Defendant’s Statement of Undisputed Material Facts
(ECF No. 43). Plaintiff filed a Response brief (ECF No. 67) and a Response to Defendant’s
Statement of Material Facts (ECF No. 63). Defendant filed a Reply brief (ECF No. 92). Upon
consideration of the Motion, Response, Reply, and being fully advised in the premises hereof,
I recommend that Defendant’s Motion for Partial Summary Judgment be GRANTED.
I. BACKGROUND
Defendant Fontainebleau operates a hotel on Miami Beach, Florida that contains various
retail stores, including Morris & Co., a gift and sundry shop. (ECF No. 43 ¶ 1). Defendant hired
Plaintiff Romaello D’Franco in 2008 as an assistant manager at Morris & Co. (Id. ¶ 2). In 2013,
he was promoted to manager of the shop. (Id. ¶ 3). He served in that role until his termination on

1 Pursuant to 28 U.S.C. § 636(b)(1)(A) and the Magistrate Judge Rules of the Local Rules of the Southern District of
Florida, the Honorable Rodolfo A. Ruiz, II, United States District Judge, referred this Motion to me to take all action
as required by law. (ECF No. 90).
July 5, 2019. (Id. ¶ 4). During the 11 years Mr. D’Franco worked for Fontainebleau, he was the
only Black assistant manager and Black manager in the retail department.2 (ECF No. 63 ¶ 52).
Mr. D’Franco was hired in 2008 at a base annual salary of $53,999.92. (Id. ¶ 39). In 2009,
Fontainebleau reduced his salary by 20 percent due to economic challenges. (Id. ¶ 40). In 2010,

2014, and 2016 through 2018, Mr. D’Franco received performance reviews indicating that he was
a “key performer,” the highest rating available. (Id. ¶ 43). However, by 2019, his annual salary had
only increased to $60,706.82—a $6,706.90 increase from his original salary. (Id. ¶ 44).
Fontainebleau hired two other assistant retail managers in 2008. (Id. ¶¶ 47–48). Ms. Aguilar
is a White Hispanic female. (Id. ¶ 47). In 2008, her annual salary was $40,000.00. (Id.). She too
became a store manager in 2013 and began earning $56,000.00 per year. (Id.). By 2019, her annual
salary was $77,250.00—$37,250.00 more than her 2008 salary. (Id.). Mr. Cardona is a White
Hispanic male. (Id. ¶ 48). As an assistant retail manager, he earned a salary of $55,000.00. (Id.).
In 2014, even though Mr. Cardona had since gone from assistant retail manager to sales associate,
Mr. Cardona’s annual salary was $60,000.00, which was about $10,000 more than what

Mr. D’Franco was making at the time. (Id.).
From 2010 to 2013, Mr. D’Franco was the only retail manager providing shoe shining
services. (Id. ¶ 53). During a wedding at the hotel in 2013, Mr. D’Franco served as a “manservant,”
assisting hotel guests with getting dressed. (Id.). From 2015 to 2019, Mr. D’Franco and Natalia
Sandic, a retail supervisor, witnessed two White retail managers make numerous racially offensive
comments in front of Robin Gamm-Sweigert, the Director of Retail, such as “your people”—
referring to Black people—“are allergic to customer service,” “replacing merchandise with books

2 Plaintiff’s Response Statement of Material Facts sets forth additional facts in Paragraphs 36 through 75. Defendant
did not file a Reply Statement of Material Facts as required by Southern District of Florida Local Rule 56.1(b)(3)(A).
Accordingly, Paragraphs 36 through 75 may be deemed admitted to the extent they are supported by cited record
evidence. See S.D. Fla. L.R. 56.1(c).
is kryptonite to your people,” “your people go to Ida & Harry to steal and not buy anything,” and
“your people are classless.” (Id. ¶¶ 53–54). Ms. Gamm-Sweigert took no action. (Id. ¶ 53).
From 2012 to 2019, Mr. D’Franco complained several times to Human Resources
employees about compensation disparity and treatment of Black people in the workplace. (Id.

¶ 50). On May 17, 2018, he wrote an email to Ms. Gamm-Sweigert about pay discrepancy. (Id.
¶ 49). On June 7, 2019, Mr. D’Franco complained to Ms. Gamm-Sweigert about racial
discrimination and harassment. (Id. ¶ 51).
The Lapis Spa is another retail establishment at the Fontainebleau hotel. (ECF No. 43 ¶ 1).
On June 14, 2019, a Lapis Spa employee discovered that several “Tata Harper”-brand items of
merchandise were missing from the Lapis Spa store. (Id. ¶ 5; ECF No. 63 ¶ 5). A few days later,
Ms. Gamm-Sweigert told Jim Wheatley, Vice President of Life Safety and Security, that the
merchandise was missing. (ECF No. 43 ¶ 6). Mr. Wheatley assigned Security Manager Steve
Nelson to commence an investigation. (Id. ¶ 7).
Mr. Nelson and Ms. Gamm-Sweigert reviewed footage from hotel security cameras for the

days preceding the discovery of the missing items. (Id. ¶ 8). The footage shows Mr. D’Franco
entering the Lapis Spa store on June 13, 2019, at 7:11 A.M. (Id. ¶ 9a). The store was closed at this
time. (Id. ¶ 9c). Mr. D’Franco retrieved a small shopping bag from behind the cash register,
browsed the store, and then placed “at least two items in green boxes” in the shopping bag. (Id.
¶ 9d–g). The missing “Tata Harper” boxes are green. (Id. ¶ 9h). Mr. D’Franco, carrying the
shopping bag, then walked through the hotel and into the parking garage. (Id. ¶ 9j–p). The bag now
appeared to contain tissue paper protruding from the top. (Id. ¶ 9o).3 When he returned from the

3 Plaintiff disputes the fact that the video shows tissue paper in the bag at any time. (ECF No. 63 ¶ 9o). In support of
the existence of a dispute, Plaintiff says, “[t]he video itself is the best evidence.” (Id.). Further, Plaintiff argues that
the appearance of tissue paper was not considered during Defendant’s investigation and therefore Defendant should
not be permitted to “expand the scope of [its] 2019 investigation.” (Id.).
parking garage and reentered the hotel, Mr. D’Franco was still carrying the shopping bag but no
tissue paper was protruding from the top anymore. (Id. ¶ 9r). He assumed his station at Morris &
Co. (Id. ¶ 9t). Finally, Mr. D’Franco opened the shopping bag and retrieved a small blue pouch
containing the cash given to him by the hotel for the purpose of making change at the cash register.

(Id. ¶ 9w). Defendant claims that the bag did not contain green boxes when Mr. D’Franco opened
it to retrieve the pouch; Plaintiff disputes this. (Id. ¶ 9x; ECF No. 63 ¶ 9x).
Mr. Nelson and his associate Mr. Carpenter interviewed Mr. D’Franco on June 27, 2019.
(ECF No. 43 ¶ 10). During the interview, Mr. D’Franco stated that, generally, if a guest requested
merchandise when the store containing the item was closed, he would go to the closed store,
retrieve it, and ring it up at his store. (Id. ¶ 12). If the guest never came to purchase the item after
he had requested it, Mr. D’Franco would return it to the store it came from. (Id. ¶ 13). Mr. D’Franco
did not recall whether a guest had in fact asked him for merchandise from Lapis Spa. (Id. ¶ 15).
He denied taking the missing merchandise. (ECF No. 63 ¶ 17).
Mr. D’Franco asked to leave the interview to pick up his daughter from school. (ECF

No. 43 ¶ 17; ECF No. 63 ¶ 17). Mr. Nelson and Mr. Carpenter escorted Mr. D’Franco to Morris &
Co. to retrieve his belongings. (ECF No. 43 ¶ 19). Mr. D’Franco picked up a bag and proceeded
to take it with him. (Id. ¶ 20). Mr. Carpenter asked to search the bag, but Mr. D’Franco refused.
The Fontainebleau Employee Handbook informs employees that the company may search any
bags or parcels taken by employees off the premises at any time. (Id. ¶ 22). Mr. D’Franco was
suspended pending further investigation. (Id. ¶ 24.)
On July 2, 2019, Mr. D’Franco attended a second interview conducted by Fontainebleau’s
Vice President of Human Resources and Director of Talent Management. (Id. ¶¶ 25–26).
His responses to inquiries were essentially the same. See (Id. ¶ 27).
Defendant terminated Mr. D’Franco’s employment on July 5, 2019 via telephone call and
emailed letter. (Id. ¶ 31). The letter stated, “you are being terminated effective today . . . because
our investigation has concluded that you have engaged in theft of Company property.” (Id. ¶ 32).
Mr. D’Franco received his final paycheck on July 12, 2019. (Id. ¶ 34).

Ms. Sandic swears that on a prior occasion, Elisa Gelb, a White retail manager for Bleau
Signature, took a book priced at approximately $1,000 from Morris & Co. for personal use without
payment. (ECF No. 63 ¶ 66). When it was discovered missing, she was allowed to pay for it, and
she was not disciplined or terminated. (Id.). Similarly, Stacey Fox, a White retail manager for Ida
and Harry, took luggage from Morris & Co. (Id. ¶ 67). When it was discovered missing, she too
was allowed to pay for it and was not terminated. (Id.).
Mr. D’Franco filed this action on July 5, 2023, asserting one claim of “Violation of 42
U.S.C. § 1981” and one claim of Retaliation Under 42 U.S.C. § 1981. (ECF No. 3). In the First
Amended Complaint, the allegations contained under “Count I – Violation of 42 U.S.C. § 1981”
include those that Mr. D’Franco was paid less than similarly situated White employees, that other

employees often made racist remarks and jokes, that Mr. D’Franco made his concerns about the
work environment known but was ignored, and that Mr. D’Franco was wrongly accused of stealing
and terminated. (Id. ¶¶ 11–17). Mr. D’Franco’s second claim alleges that Defendant retaliated
against him for complaining internally about the work environment and filing an EEOC charge.
(Id. ¶¶ 27–29). Defendant answered the First Amended Complaint. (ECF No. 8).
Defendant now brings this Motion for Partial Summary Judgment, which seeks summary
judgment in its favor on: (1) Plaintiff’s “atmospheric claims,” and (2) Defendant’s contention that
Plaintiff’s damages on his pay-differential claim are limited solely to his final paycheck. The
statute of limitations for a claim under 42 U.S.C. § 1981 is four years. 28 U.S.C. § 1658(a).
Defendant argues: first, Plaintiff’s atmospheric claim is comprised solely of acts that occurred
more than four years before he filed suit; and second, Plaintiff’s final paycheck is the only
paycheck he received in the filing period.
In response, Plaintiff argues that Mr. D’Franco’s termination occurred in the filing period

and the termination is sufficiently related to the other acts comprising his hostile environment
claim to deem the claim timely. Second, Mr. D’Franco’s back pay damages are not limited to a
four-year look-back period.
II. LEGAL STANDARD
Summary judgment shall be granted if the movant shows 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). The movant bears the initial responsibility of informing the court of the basis for its
motion and identifying the portions of the record which it believes demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To discharge
this burden, the movant must identify an absence of evidence to support the nonmoving party’s

case. Id. at 325.
After the movant has met its burden under Rule 56(c), the burden of production shifts to
the respondent. The nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). Rather, it must support its assertion that a genuine material fact remains
in dispute by citing to specific parts of the record. Sutton v. Royal Caribbean Cruises Ltd., 285 F.
Supp. 3d 1349, 1351 (S.D. Fla. 2018), aff’d, 774 F. App’x 508 (11th Cir. 2019). A fact or issue is
material for purposes of summary judgment only if it might affect the outcome of the suit under
the governing law. Webb v. Carnival Corp., 360 F. Supp. 3d 1339, 1343 (S.D. Fla. 2017).
Summary judgment is proper “against a party who fails to make a showing sufficient to establish
the existence of an element essential to the party’s case and on which that party will bear the burden
of proof at trial.” Id. at 1344 (citing Celotex, 477 U.S. at 323).
In considering a motion for summary judgment, a court must evaluate the evidence and

make all inferences in the light most favorable to the nonmoving party. Sutton, 285 F. Supp. 3d at
1351 (citing Matsushita, 475 U.S. at 586). However, a mere scintilla of evidence will not prevent
summary judgment; the evidence must be sufficient to allow a rational trier of fact to find for the
nonmoving party. Matsushita, 475 U.S. at 586–87. Conclusory and unsubstantiated averments do
not suffice. Leigh v. Warner Bros., 212 F.3d 1210, 1217 (11th Cir. 2000). The respondent must cite
to specific record evidence. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116–17 (11th Cir. 1993).
III. DISCUSSION
A. Whether a Hostile Work Environment Claim Has Been Pled.
The first count of Plaintiff’s First Amended Complaint combines three theories of liability
into a single claim for violation of 42 U.S.C. § 1981: (1) Plaintiff was paid less than similarly

situated White employees on account of his race; (2) Plaintiff was subjected to a racially hostile
work environment; and (3) Plaintiff’s employment was terminated because of his race. In his
Response to Defendant’s Motion for Partial Summary Judgment, Plaintiff characterizes his own
complaint as follows:
[The] First Amended Complaint contains only two counts: Discrimination
(Count I) and Retaliation (Count II). It did not contain a specific “atmospheric
hostile work environment claim,” although it does allege in paragraph 18 that
plaintiff’s race was a substantial or motivating factor in the hotel’s treatment of
plaintiff, including paying him less than non-black employees and making
offensive racist comments in his presence, . . . which defendant [raised] into its
summary judgment motion . . . . In light of defendant’s argument, plaintiff moves
to conform the pleadings to the evidence and to consider the “atmospheric” claim
as if it had been pleaded [pursuant to Federal Rule of Civil Procedure 15(b)(2)].
(ECF No. 67 at 2 n.1) (citations omitted). Accordingly, Plaintiff’s Response refers to his hostile
work environment allegations as an “unpleaded” claim throughout the brief.
A response brief is an improper vehicle to seek relief from the Court. In any event, the
Court need not consider whether the pleadings should be conformed to add a hostile work

environment claim because doing so would be futile. All of the alleged acts comprising Plaintiff’s
hostile work environment claim occurred outside of the filing period; thus, the claim is untimely.
B. To the extent Plaintiff has alleged a hostile work environment claim, the claim
is time barred.
The statute of limitations for a claim under 42 U.S.C. § 1981 is four years. 28 U.S.C.
§ 1658(a); McCray v. Wal-Mart Stores, Inc., 377 F. App’x 921, 924 (11th Cir. 2010). Plaintiff filed
this action on July 5, 2023. Plaintiff’s employment was terminated on July 5, 2019. All the
allegations regarding racist remarks in the workplace, tasks that Plaintiff was required to do but
his peers were not, and Plaintiff’s complaints about the work environment occurred prior to his
termination. The key question before the Court is whether Plaintiff’s termination is part of his
hostile work environment claim. For the following reasons, I conclude that it is not.
In National Railroad Passenger Corp. v. Morgan, the Supreme Court addressed the
question of “whether, and under what circumstances, a Title VII plaintiff may file suit on events
that fall outside th[e] statutory time period” established by 42 U.S.C. § 2000e-5(e)(1). 536 U.S.
101, 105 (2002). Because, under Title VII, an individual must file a charge of discrimination or
retaliation “within one hundred and eighty days after the alleged unlawful employment practice

occurred,” the Court had to determine what constituted an “unlawful employment practice” and
when that practice has “occurred.” Id. at 109 (emphasis omitted) (quoting 42 U.S.C. § 2000e-
5(e)(1)). In doing so, the Court distinguished between “discrete” discriminatory or retaliatory acts
and “repeated conduct.” Id. at 110, 115.
“Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire
are easy to identify.” Id. at 114. For example, each paycheck that delivers less to a Black individual
than to a similarly situated White individual constitutes a discrete wrong actionable under Title
VII. See id. at 112 (quoting Bazemore v. Friday, 478 U.S. 385 (1986)). Similarly, the allegation

that United Air Lines forced Carolyn Evans to resign after she married because of its policy against
married female flight attendants was also a discrete act, not a “continuing violation” as Ms. Evans
had argued. See id. (discussing United Air Lines, Inc. v. Evans, 432 U.S. 553 (1977)). A discrete
discriminatory act occurs on the day that it happened. Id. at 110. Title VII claims arising out of
discrete acts are subject to a bright-line limitations rule: they “are not actionable if time barred,
even when they are related to acts alleged in timely filed charges.” Id. at 113 (emphasis added).
“Each discrete discriminatory act starts a new clock for filing charges alleging that act.” Id.
In contrast, the “very nature” of hostile environment claims “involves repeated conduct.”
Id. at 115. A hostile environment “cannot be said to occur on any particular day. It occurs over a
series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment

may not be actionable on its own.” Id. Because a “hostile work environment claim is composed of
a series of separate acts that collectively constitute one ‘unlawful employment practice,’” such
claim is timely if just one act contributing to the claim occurs within the filing period. Id. at 117.
It does not matter . . . that some of the component acts of the hostile work
environment fall outside the statutory time period. Provided that an act contributing
to the claim occurs within the filing period, the entire time period of the hostile
environment may be considered by a court for the purposes of determining liability.
Id.
Plaintiff has not asserted a claim under Title VII; he has asserted a violation of 42 U.S.C.
§ 1981. Like the case at hand, in Shields v. Fort James Corp., African American plaintiffs alleged
that they were subjected to a racially hostile work environment and filed suit under section 1981.
305 F.3d 1280, 1281 (11th Cir. 2002). The Eleventh Circuit held that Morgan’s framework applied
to hostile work environment claims under section 1981 as well. Id. at 1282.
An allegation that an employer has allowed a racially hostile work environment to
prosper embodies a single violation of an employee’s right to ‘the enjoyment of all
benefits, privileges, terms, and conditions of the contractual relationship’ and,
therefore, should be reviewed in its entirety if any part of this allegation falls within
the statute of limitations period.
Id. at 1282–83 (quoting 42 U.S.C. § 1981).
With these principles in mind, we now reach the question at the heart of Defendant’s
Motion: was Plaintiff’s termination one act in a series of alleged acts constituting a hostile work
environment claim? If the answer is yes, then Plaintiff’s hostile environment claim is timely
because the termination occurred in the filing period. So long as one “act contributing to the claim
occurs within the filing period, the entire time period of the hostile environment may be considered
by a court for the purposes of determining liability.” Morgan, 536 U.S. at 117.
A district court is tasked with determining “whether the acts about which an employee
complains are part of the same actionable hostile work environment practice.” Id. at 120.
But Morgan did not address the question of whether a discrete act of discrimination, which by
itself may be actionable, can also constitute a contributing act in a hostile environment claim.
In Chambless v. Louisiana-Pacific Corp., a panel of the Eleventh Circuit held that it can.
Where the discrete act is sufficiently related to a hostile work environment claim
so that it may be fairly considered part of the same claim, it can form the basis for
consideration of untimely, non-discrete acts that are part of the same claim.
The pivotal question is whether the timely discrete acts are sufficiently related to
the hostile work environment claim.
381 F.3d 1345, 1350 (11th Cir. 2007). This is the majority view among the Circuits who have taken
up the question. See King v. Aramark Servs. Inc., 96 F.4th 546, 561 (2d Cir. 2024); Guessous v.
Fairview Prop. Invs., LLC, 828 F.3d 208, 223 (4th Cir. 2016); McNeal v. City of Blue Ash, Ohio,
117 F.4th 887, 902 (6th Cir. 2024); Baird v. Gotbaum, 662 F.3d 1246, 1252 (D.C. Cir. 2011).4
But one year later, a different Eleventh Circuit panel ruled a “district court properly found”
that some of the plaintiff’s allegations “constitute discrete acts that must be challenged as separate

statutory discrimination and retaliation claims.” McCann v. Tillman, 526 F.3d 1370, 1379 (11th
Cir. 2008). “These cannot be brought under a hostile work environment claim that centers on
discriminatory intimidation, ridicule, and insult.” Id. (internal quotations omitted); see also Porter
v. Cal. Dep’t of Corr., 419 F.3d 885, 893 (9th Cir. 2005) (“If the flames of an allegedly hostile
environment are to rise to the level of an actionable claim, they must do so based on the fuel of
timely non-discrete acts.”).
The Eleventh Circuit again touched upon the issue in Gowski v. Peake, 682 F.3d 1299 (11th
Cir. 2012),5 where the Court wrote, “[d]iscrete acts cannot alone form the basis of a hostile work
environment.” Id. at 1312–13 (11th Cir. 2012) (citing McCann). “But the jury could consider
discrete acts as part of a hostile work environment claim.” Id. at 1313 (citing Chambless). A nearby

district court recently explained, “Gowski treated discrete acts as part of the hostile work
environment for purposes of measuring its severity and pervasiveness. But like Chambless, it did
so only after confirming that the discrete acts ‘played a role in the intimidation and ridicule,’
echoing Chambless’s ‘sufficiently related’ standard.” Caldwell v. Kimberly-Clark USA, LLC, ---
F. Supp. 3d ----, 2024 WL 4255267, at *12 (S.D. Ala. Sept. 19, 2024).

4 See also Heath v. Bd. of Supervisors for S. Univ. & Agric. & Mech. Coll., 850 F.3d 731, 738, 740 (5th Cir. 2017)
(“(1) the plaintiff must demonstrate that the separate acts are related; (2) the violation must be continuing; intervening
action by the employer . . . will sever the acts that preceded it from those subsequent to it; and (3) the doctrine may be
tempered by the court’s equitable powers, which must be exercised to ‘honor Title VII’s remedial purpose . . . .’”).
5 “Monaghan v. Worldpay US, Inc., 955 F.3d 855 (11th Cir. 2020) . . . effectively overruled Gowski insofar as it applied
to retaliatory-hostile-work-environment claims.” See Babb v. Sec’y, Dep’t of Veterans Affs., 992 F.3d 1193, 1206–07
(11th Cir. 2021).
The discrepancy between Chambless and McCann has resulted in inconsistent approaches
in cases like this one—where a timely discrete act supposedly contributed to a hostile environment
otherwise comprised of untimely non-discrete acts. Compare, e.g., Moore v. San Carlos Park Fire
Prot. & Rescue, 808 F. App’x 789, 796 (11th Cir. 2020) (citing Chambless’s “sufficiently related”

standard), and Stewart v. Jones Util. & Contracting Co., 806 F. App’x 738, 742 (11th Cir. 2020)
(same), and Smith v. DeJoy, No. 23-cv-593, 2024 WL 5145956, at *7 (N.D. Ala. Dec. 17, 2024)
(applying “sufficiently related” standard), and Brown-Edwards v. Marshall, No.20-cv-876, 2023
WL 121450, at *9 (M.D. Ala. Jan. 6, 2023) (same), with Freeman v. City of Riverdale, 330 F. App’x
863, 866 (11th Cir. 2009) (citing McCann for the proposition that discrete acts cannot be
considered part of a hostile work environment and must be challenged separately), and Swindle v.
Hale, No. 09-cv-1458, 2012 WL 4725579, at *14 (N.D. Ala. Sept. 30, 2012) (same), and Jackson
v. Atlanta Pub. Schs., No. 20-cv-1056, 2021 WL 12300129, at *4 (N.D. Ga. July 9, 2021) (same),
and Lisenby v. Williams, No. 17-cv-54, 2018 WL 1512374, at *5 n.6 (M.D. Ala. Mar. 27, 2018)
(same).6

If Chambless and McCann represent holdings on the same issue, Chambless presumably
would prevail under the prior-panel-precedent rule. Caldwell, 2024 WL 4255267, at *11 (citing
League of Women Voters Inc. v. Fla. Sec’y of State, 66 F.4th 905, 943 (11th Cir. 2023)). Further,
McCann’s holding may not have been as sweeping as some courts have stated. Just because that
plaintiff’s allegations of a racially motivated suspension, “unsatisfactory” performance review, and
failure to promote were “discrete acts that must be challenged as separate statutory discrimination

6 One district court addressed the apparent contradiction and concluded “there is no split in authority” because
Chambless merely held, in determining whether a hostile environment claim is timely, “the entire period of the hostile
environment may be considered . . . for the purposes of determining liability if an act relating to the claim occurred
within the filing period.” Dawkins v. Fulton Cnty. Gov’t, State of Ga., No. 10-CV-1718, 2012 WL 12892184, at *2–3
(N.D. Ga. Mar. 14, 2012). On the other hand, McCann “specifically addressed the issue of whether discrete acts could
form the basis of a hostile work environment claim,” and held that they could not. Id. at *3. Suffice to say, not all are
persuaded by that analysis. See Caldwell, 2024 WL 4255267, at *11.
and retaliation claims,” and those allegations could not “be brought under a hostile work
environment claim that centers on discriminatory intimidation, ridicule, and insult,” does not
necessarily mean that allegations of discrete discriminatory acts can never be considered part of a
hostile work environment claim. See McCann, 526 F.3d at 1374, 1379. Perhaps putting this issue

to bed, a later Supreme Court opinion characterized its prior Morgan decision as “holding that a
hostile-work-environment claim is a single ‘unlawful employment practice’ that includes every act
composing that claim, whether those acts are independently actionable or not.” Green v. Brennan,
578 U.S. 547, 557 (2016) (emphasis added); see id. at 562 n.7.
However, the Court need not decide whether Chambless controls because Plaintiff’s
termination is not sufficiently related to the allegations that he was subjected to a racially
discriminatory environment. Because no act contributing to the hostile work environment claim
occurred in the filing period, the claim is time barred.
“[A]cts may be part of the same unlawful employment practice if the ‘pre- and post-
limitations period incidents involve the same type of employment actions, occurred relatively

frequently, and were perpetrated by the same managers.’” Moore, 808 F. App’x at 796 (quoting
Morgan, 536 U.S. at 120). Plaintiff alleges that prior to the limitations period, other employees
often made racist comments and jokes, Defendant was aware of this, and Plaintiff was made to do
demeaning tasks that similarly situated White employees were not required to do. The allegation
that Plaintiff was terminated because of his race is not the same type of “discriminatory
intimidation, ridicule, and insult.” Morgan, 536 U.S. at 116 (quoting Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993)).
The cases where courts have held that a timely discrete act of discrimination “saved” a
hostile environment claim involved situations where the untimely non-discrete acts clearly
escalated to the termination or other discrete act.
In King v. Aramark Services Inc., King was the sole woman who reported to a male

supervisor, Thomas. 96 F.4th 546, 553 (2d Cir. 2024). For two years, even though King’s objective
performance metrics were extremely positive, Thomas would single out King in front of other
employees and cite her performance as an example of what not to do, rated her performance as not
meeting expectations, denied her a merit-based salary increase, excluded her from important
meetings, gave her unrealistic deadlines, denied her office space, spoke to her in a condescending
manner in front of colleagues and superiors, and made comments about her weight. Id. at 553–55.
Thomas fabricated performance-related complaints and created highly impracticable protocols to
try to get King fired. Id. at 554. Discovery revealed that Thomas was orchestrating the firing of
King well before the events for which she was purportedly fired occurred. Id. The Second Circuit
ruled, given that Thomas played a decisive role in King’s termination, there was sufficient evidence

to enable a jury to find that Thomas’s “decisive role contributed to his long-running enterprise of
subjecting King to a pervasive, hostile work environment.” Id. at 562.
In Royal v. Potter, Royal was forced to engage in nonconsensual sexual intercourse with
her supervisor, Brownlow, on a weekly basis for 17 months. 416 F. Supp. 2d 442, 445 (S.D.W.V.
2006). At first, Royal was promoted to a temporary supervisory role. Id. When she attempted to
stop the sexual relations, Brownlow said she must not “want to prosper.” Id. The same month,
Brownlow removed Royal from her supervisory assignment, causing her to earn less money and
damaging her chances for a promotion. Id. Brownlow told the plant manager that Royal was
removed due to poor performance. Id. Several months later, Royal applied for the position of
supervisor of distribution operations. Id. Brownlow was the only interviewing official. Id. During
her interview, Brownlow asked Royal what color underwear she was wearing. Id. at 445–46. When
Royal asked Brownlow why she did not receive the position, he indicated that he did not promote
people with whom he has sex. Id. at 446. Due in part to the fact that the removal of Royal from the

supervisory role and the failure to promote her “were direct decisions by Brownlow,” Royal had
“provided sufficient evidence to suggest that these [discrete] acts . . . contribut[ed] to the hostile
work environment” Id. at 453–54. See also Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208,
223 (4th Cir. 2016) (holding that withdrawal of assignments and termination could support hostile
work environment claim mainly comprised of discriminatory remarks about the plaintiff’s religion,
making the claim timely).
In contrast to these cases, the record evidence does not support the contention that
Mr. D’Franco’s termination was sufficiently related to the racist comments and demeaning tasks
he endured such that it could be considered part and parcel of the same hostile work environment
claim. Defendant terminated Mr. D’Franco after it concluded that he stole company property.

Mr. D’Franco vehemently denies that accusation, but the evidence does not suggest that
Defendant’s stated reason for the termination was a sham, as was the case in King and Royal.
While Mr. D’Franco’s termination appears to have been “perpetrated by the same managers” who
assigned him demeaning tasks, the racist comments were made by fellow retail store employees.
See Morgan, 536 U.S. at 120.
Mr. D’Franco’s claim that Defendant terminated him because of his race may yet support
an independent theory of liability. (Defendant has not moved for summary judgment on that claim
and the undersigned takes no position on it.) But even if Mr. D’Franco was wrongfully terminated,
it does not automatically follow that the termination was related to a preexisting hostile work
environment. Plaintiff has failed to establish that his termination was sufficiently related to the
untimely non-discrete acts that comprise his hostile work environment claim. As no act
contributing to the hostile work environment occurred in the filing period, Defendant is entitled to
summary judgment on this claim.

C. Plaintiff’s disparate pay claim is limited to the sole paycheck he earned in the
filing period.
“[D]iscrete discriminatory acts are not actionable if time barred, even when they are related
to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing
charges alleging that act.” Morgan, 536 U.S. at 113. A plaintiff who fails to file a section 1981
claim for a discrete act within four years of the date of that act “lose[s] the ability to recover.”
Cf. id. at 110; see also McCray v. Wal-Mart Stores, Inc., 377 F. App’x 921, 924 (11th Cir. 2010)
(holding that statute of limitations for claims under 42 U.S.C. § 1981 is four years)
Each paycheck that delivers less to a person because of their race is a discrete act of
discrimination that starts a new clock for filing an action. See Morgan, 536 U.S. at 112, 113;
Ledbetter v. Goodyear Tire & Rubber Co., 421 F.3d 1169, 1180 (11th Cir. 2005) (“We think it clear
that pay claims of the type Ledbetter asserts are governed by that part of the Morgan decision
addressing claims alleging ‘discrete acts of discrimination.’”); accord Short v. Immokalee Water
& Sewer Dist., 165 F. Supp. 3d 1129, 1144 (M.D. Fla. 2016); see also Stallworth v. Shuler, 777
F.2d 1431, 1435 (11th Cir. 1985) (holding that a continuing violation of Title VII by failing to
promote the plaintiff for years justified the district court’s award of back pay “to the earliest

statutory limit”); Palmer v. Stewart Cnty. Sch. Dist., 215 F. App’x 822, 824 (11th Cir. 2007)
(affirming ruling that the plaintiff’s § 1981 disparate pay claim was time barred because the entire
period during which she was allegedly paid less because of her race occurred before the filing
period).
It is undisputed that the only paycheck Mr. D’Franco received during the filing period is
the one from July 12, 2019. Therefore, that is the only paycheck he can challenge as part of his
§ 1981 claim. Because each paycheck is a discrete act of discrimination, the statute of limitations
with respect to paychecks earned before July 5, 2019 has run. Plaintiff can no longer recover for
those acts.
IV. RECOMMENDATION
For the foregoing reasons, I recommend that Defendant’s Motion for Partial Summary
Judgment (ECF No. 44) be GRANTED.
A party shall serve and file written objections, if any, to this Report and Recommendations
with the Honorable Rodolfo A. Ruiz, I, United States District Judge for the Southern District of
Florida, within FOURTEEN (14) DAYS of being served with a copy of this Report and
Recommendation. Failure to timely file objections will bar a de novo determination by the District
Judge of anything in this recommendation and shall constitute a waiver of a party’s “right to
challenge on appeal the district court’s order based on unobjected-to factual and legal
conclusions.” 11th Cir. R. 3-1 (2016); 28 U.S.C. § 636(b)(1)(C); see also Harrigan v. Metro-Dade
Police Dep t Station #4, 977 F.3d 1185, 1191-92 (11th Cir. 2020).
RESPECTFULLY SUBMITTED in Chambers in Miami, Florida, this 7th day of March,
2025.

LAUREN F. LOUIS
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10840151. Public record. Not legal advice.