Chavez

UMNIIDTEDDL ES TDAISTTERS IDCITS TORFI FCLTO CROIDUART

TAMPA DIVISION

ALBERTO CHAVEZ,

Plaintiff,

v.

CASE NO. 8:24-cv-01863-SDM-NHA

CITY OF TAMPA WATER

DEPARTMENT,

Defendant

___________________________________/

ORDER

Alleging discrimination and retaliation under federal and state law, Al-

berto Chavez sues (Doc. 12) the City of Tampa Water Department. Each

party moves (Docs. 44 and 46) for summary judgment, each party responds

(Docs. 50 and 59) to the other’s motion, and each party replies (Docs. 60 and

63) to the other’s response.

BACKGROUND

Official Account of the Plaintiff’s Termination

The defendant employed the plaintiff as a "water plant operator" at a

wastewater treatment plant from January 16, 2018, until September 7, 2023.

(Doc. 46 at 12; Doc. 46-1 ¶ 2) The plaintiff's position required a license from

the Florida Department of Environmental Protection (DEP), and the Florida

Administrative Code conditions licensure on, among other requirements, a

minimum number of working hours. DEP issues four classes of licenses —

Class D, Class C, Class B, and Class A — with Class D the lowest and Class

A the highest. (Doc. 45 at 5)

On June 14, 2023, the plaintiff, who then held a Class C license, re-

mained 532 hours short of qualifying for a Class B license. (Doc. 45 at 5–6)

On July 10, 2023, only twenty-six days later, the plaintiff's supervisor, aware

since June 14 of the 532-hour deficit, learned that the plaintiff had obtained a

Class B license. The supervisor instructed the plaintiff to produce a copy of the

Class B license application, but the plaintiff refused. (Doc. 45 at 6) After ob-

taining the application from another source and reviewing the application, the

supervisor learned that on June 16, 2023, a co-worker had signed the plaintiff's

Class B license application as a favor and had left blank the section requiring

the number of qualifying hours, which the plaintiff later filled in. (Doc. 45 at

6) The defendant suspended the attesting co-worker for his role in submitting

the plaintiff's application. (Doc. 45 at 27)

On July 25, 2023, “as a result of some comments that [the plaintiff]

made during a video . . . submitted to various city officials . . . the City re-

ferred [the plaintiff] to [the defendant’s] Employee Assistance Program

(EAP).”1 (Doc. 45 at 9) The plaintiff missed the fitness-for-duty evaluation

1 In the twenty-two minute three-second video, titled “CEASE AND DE-

SIST…PLEASE” and addressed to Governor Ron DeSantis, Mayor Jane Castor, and vari-

ous employees of the water plant, the plaintiff declares, among other grievances, “when you

insinuate that someone is a forger, when you spread rumors about people, when you

(continued…)

scheduled with an EAP psychologist and missed the appointment rescheduled

for the following day. (Doc. 45 at 25)

A September 7, 2023, “Notice of Disciplinary Action” directed to the

plaintiff concludes:

You knowingly signed and submitted to the [DEP] your

“B” license application with falsified information show-

ing you met the hours requirement, two days after your

conversation with [the supervisor] about being short 532

. . . hours. You knowingly coerced your coworker into

signing the application . . .

On Tuesday, July 25, 2023, based on your recent behav-

iors you were mandated to [consult the EAP] provider.”

You were scheduled to meet with [a psychologist] who

explained that you would begin a fitness for duty evalua-

tion. You explained that you would like to review the

documents and would meet back with [the psychologist]

on Tuesday, August 1, 2024. Additionally, [the psy-

chologist] instructed you not to contact anyone at the

City of Tampa, but if you had any questions, you could

contact [the psychologist’s] office or [human resources] .

. . [Y]ou did not follow [the psychologist’s] instruction

but contacted an employee at the Water Plant.

On Tuesday, August 1, 2023, you failed to appear for

your scheduled appointment. [The psychologist] re-

scheduled your missed meeting for Wednesday, August

02, 2023, and for the second time you failed to keep

your scheduled appointment. On Wednesday, August 2,

2023, [the psychologist] advised Human Resources that

you were again non-compliant with his program and di-

rectives.

Most importantly, your actions as described above indi-

cate that you deliberately submitted untruthful docu-

mentation to the DEP for your B-License. You inten-

tionally falsified your . . . application and are in clear

consistently bring allegations about people, that festers in the body. It creates free-floating

anxiety, and your immune system then drops. And what does that lead to? Cancer. So, liter-

ally, [the head of] HR is a cancer . . . [and] the manager of the . . . water plant is a cancer be-

cause they are insinuating that I’m doing something wrong. It causes cancer when you stress

people out like this.” (Doc. 76 at 4, 15)

violation of the City of Tampa Personnel Manual B23,

Code of Ethics B (1) “No employee shall solicit or ac-

cept anything of value, including a . . . favor . . . based

upon any understanding that the action or judgment of

the employee would be influenced thereby.” B23.1

Fraud (3) “Fraud has been defined as the intentional,

false representation or concealment of a material fact for

the purpose of inducing another to act upon it for per-

sonal benefit. Specific examples [include] . . . falsifica-

tion of records . . .

Further, your behavior as described above is in violation

of the City of Tampa Civil Service Rules & Regulations,

Article D, Section 10 (b), medical requirements, and, the

City of Tampa Personnel Manual B28.2A3 (a) Incompe-

tence (1) “Inability to perform up to accepted work

standards”; (b) Insubordination (2) “Disregard for or re-

peated failure to follow the instruction or direction of a

supervisor”; and (d) Moral Turpitude (1) “Falsification,

misrepresentation, or material omission of statements,

testimony, or any document or record completed in the

course of employment . . .

For these reasons, the defendant terminated the plaintiff’s employment. (Doc.

45 at 9–10 and 11–13)

The Alleged Anti-Hispanic Animus

The plaintiff, a man of Cuban origin, recalls three comments overtly re-

ferring to Hispanic national origin during the plaintiff’s more than five-and-a-

half years of employment:

In 2021, a co-worker stated that a basin in the sludge

room resembled a “Mexican bowl.”

In 2022, a co-worker stated that a cleaner had performed

poorly "probably because she's Cuban."

In 2023, a co-worker stated that “Mexicans eat the shit

out of sand cranes.”

(Doc. 45 at 37 and 44; Doc 51-5 at 1–2)

The plaintiff recalls two comments that the plaintiff contends implicitly

reference Hispanic national origin:

On an unspecified date, a co-worker stated that the

"lawn crew," apparently comprised of Hispanics, is "not

worth a damn."

On another unspecified date, a co-worker stated that

“anybody that can read or write English can” pass a li-

censing examination.

(Doc. 45 at 37 and 47; Doc 51-13 at 41)

Finally, the plaintiff recalls one comment and two incidents involving

neither an express nor implicit reference to Hispanic national origin but that

the plaintiff attributes to discriminatory animus:

In September 2022, after the plaintiff passed a C-license

certification examination, a co-worker stated, “sure

would suck if someone contacted [the licensing depart-

ment] and told [the department] you don’t deserve your

license.”2

According to the plaintiff, in March 2023, after a heated

exchange, a co-worker “got right in [the plaintiff’s] face”

and “put his hands on” the plaintiff.3

On an unspecified date, a co-worker selected as a tempo-

rary replacement an Australian even though three His-

panic employees, including the plaintiff, possessed

greater seniority than the Australian employee.4

2 In a September 3, 2022 email to human resources, the plaintiff asserts that the co-

worker “threat[ened]” the plaintiff because of the plaintiff’s race and that the co-worker did

not question the qualifications of another white employee who was later issued a license.

(Doc. 51-12 at 1) In a July 26, 2023 video, the plaintiff acknowledges that the co-worker was

“reprimanded” for the “threat.”

3 Human resources determined, however, that based on witnesses’ competing testi-

mony, the plaintiff was the aggressor in this interaction. (Doc. 45-1 at 4)

4 The co-worker testified that the co-worker selected the Australian selected because

of the Australian’s “knowledge and skills on the job.” (Doc. 45-1 at 43)

(Doc. 45 at 35, 39, and 45; Doc. 51-12 at 1–2)

Citing these six comments, the two incidents, the complaints he made

in response, and his termination, the plaintiff alleges discrimination and retali-

ation in violation of (1) Title VII of the Civil Rights Act of 1964 (Title VII); (2)

the Florida Civil Rights Act (FCRA); and (3) 42 U.S.C. § 1983 (Section 1983).

DISCUSSION

The Comments and Incidents Alleged in the Harassment Claims Either Do

Not Concern National Origin or Are Insufficiently Severe or Pervasive

To state a claim for harassment under Title VII or Section 1983 the

plaintiff must show: (1) he is a member of a protected class; (2) he was sub-

jected to unwelcome harassment; (3) the harassment was based on his pro-

tected class; (4) the harassment was sufficiently severe or pervasive to affect a

term, condition, or privilege of employment; and (5) a basis for employer lia-

bility. Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1231 (11th

Cir. 2006).

As the defendant concedes, the plaintiff is a member of a protected class

and was subjected to unwelcome conduct. But of the eight comments and inci-

dents on which the plaintiff relies, only three expressly reference Hispanic na-

tional origin: the "Mexican bowl" comment, the remark that a cleaner per-

formed poorly "probably because she's Cuban," and the statement that "Mexi-

cans eat the shit out of sand cranes." The "lawn crew" comment and the "read

or write English" comment require an inference that the speaker referred to

Hispanic employees and, by extension, to Hispanic national origin. Likewise,

the temporary-replacement incident requires an inference that a co-worker's se-

lection of an Australian employee for a one-week assignment, rather than a

Hispanic employee, evidences anti-Hispanic animus. The remaining comment

and incident — the threat to report the plaintiff and the workplace altercation

— bear no evident connection to national origin.

Even if every comment and incident bore some connection to the plain-

tiff's national origin, none, whether alone or in combination, is sufficiently se-

vere or pervasive to alter a term or condition of employment. Muggleton v. Uni-

var USA, Inc. explains that:

Simple teasing, offhand comments, and isolated in-

cidents (unless extremely serious) will not amount

to discriminatory changes in the terms and condi-

tions of employment. . . . Measuring the severity re-

quires accounting for two components: one subjec-

tive and the other objective. Not only must the em-

ployee perceive the harassment as sufficiently severe

and pervasive to alter the terms or conditions of em-

ployment (the subjective part), but that perception

must be objectively reasonable. In other words, “a

reasonable person would find the environment hos-

tile and abusive.” This objective analysis requires

asking about the frequency of the conduct, its sever-

ity, its nature (threatening or humiliating), and

whether it unreasonably interfered with the employ-

ee's job performance.

2007 WL 28333, at *3 (M.D. Fla. Jan. 3, 2007) (Merryday, J.), aff'd, 249 F.

Appx. 160 (11th Cir. 2007) (citing Clark County School Dist. v. Breeden, 532 U.S.

268, 270 (2001) and quoting Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th

Cir.1999)) (cleaned up).

In Muggleton, the plaintiff alleged that co-workers routinely used profan-

ity, yelled at the plaintiff on one occasion, frequently made disparaging com-

ments about women in the workplace, and repeatedly mocked her age.

Among other remarks, co-workers referred to women as “bitch[es]” and

“blonde bimbo[s],” questioned whether the plaintiff had “got[ten] laid,” and

joked that her reading glasses made her look like an “old lady,” that she was

“older than dirt,” and that she had been employed “as long as the building has

been here.” Muggleton found that “this conduct does not rise to the serious,

pervasive level needed for actual discrimination under Title VII.” Muggleton,

2007 WL 28333, at *4; See also Barrow v. Georgia Pacific Corp., 144 Fed. Appx.

54, 57 (11th Cir. 2005).

Here, co-workers (not supervisors) made the comments over a period

exceeding two years, and only three expressly referenced Hispanic national

origin. The remaining incidents either concerned national origin only by infer-

ence or bore no apparent relation to national origin. Most notably, no com-

ment concerns the plaintiff directly and none contains a derogatory racial or

ethnic slur. Under these circumstances, no reasonable person could conclude

that the conduct was sufficiently severe or pervasive to create an objectively

hostile or abusive work environment.

The Plaintiff Did Not Engage in Statutorily Protected Expression, and the

Plaintiff Was Terminated for a Legitimate, Non-Pretextual Reason

“To establish a prima facie case of retaliation [under Title VII],5 the

plaintiff must show: (1) that he engaged in statutorily protected expression; (2)

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

causal relationship between the two events.” Holifield v. Reno, 115 F.3d 1555,

1566 (11th Cir. 1997), abrogated on other grounds by Lewis v. City of Union City,

Georgia, 918 F.3d 1213 (11th Cir. 2019). “A plaintiff engages in statutorily pro-

tected activity when [the plaintiff] opposes an employment practice that she

has a good faith, reasonable basis to believe is unlawful.” Diamond v. Morris,

Manning & Martin, LLP, 457 F. App'x 844, 846 (11th Cir. 2012) As explained

in Johnson v. Family Practice & Injury Center, Inc.:

The burden of establishing statutorily protected activity

contains both a subjective component and an objective

component. For the subjective component, a plaintiff

must demonstrate that she subjectively — in good faith

— believed that her employer engaged in unlawful em-

ployment practices. This requirement translates to

demonstrating that the plaintiff subjectively believed that

the unlawful employment practice complained of was

racial discrimination. For the objective component, the

plaintiff must demonstrate that her belief was objectively

reasonable in light of the facts and record presented. The

objective reasonableness of the belief is measured by ref-

erence to controlling substantive law.

437 F. Supp. 3d 1108, 1123 (M.D. Fla. 2020) (cleaned up)

5 Or under the FCRA. See Harper v. Blockbuster Ent. Corp., 139 F.3d 1385, 1388–89

(11th Cir. 1998) (“[D]ecisions construing Title VII guide the analysis of claims under the

Florida Civil Rights Act. Accordingly, because the plaintiffs cannot maintain a retaliation

claim under Title VII, we conclude that the district court correctly dismissed the plaintiffs’

Florida Civil Rights Act retaliation claim.”).

In support of the contention that he engaged in statutorily protected ex-

pression, the plaintiff's motion for summary judgment states (1) that the plain-

tiff “complained to HR, his supervisors, and the union,” but was “retaliated

against and ultimately terminated on September 7, 2023” and (2) that the

plaintiff “filed complaints regarding harassment, hostile work environment,

and disparate treatment.”6 (Doc. 46 at 20–21)

Although the defendant concedes that the complaints evidence the

plaintiff's subjective belief in the unlawfulness of the defendant's conduct, the

belief was not objectively reasonable. For the reasons explained in connection

with the harassment claim, the conduct the plaintiff opposed was unquestiona-

bly lawful. See Butler v. Ala. Dep't of Transp., 536 F.3d 1209, 1214 (11th Cir.

2008) (“Where binding precedent squarely holds that particular conduct is not

an unlawful employment practice by the employer, and no decision of this

Court or of the Supreme Court has called that precedent into question or un-

dermined its reasoning, an employee's contrary belief that the practice is un-

lawful is unreasonable.”). In any event, the defendant articulates a "legitimate,

6 The plaintiff's "complaints" include (1) a September 3, 2022, e-mail titled "Concern-

ing work environment," to human resources, alleging that a co-worker questioned the plain-

tiff's qualification for a C-license; (2) a March 3, 2023, e-mail titled "The Gate Keeper and

The Shadow Creature," to human resources and other water plant employees, alleging gener-

ally that "the harassment is back . . . the slander is back . . . [and] the defamation of my char-

acter for no other reason than seething racism is back"; (3) a March 8, 2023, e-mail titled

"Another day, another racist," to human resources, water plant employees, and government

officials, alleging — in reference to the "read or write English" comment — that "the racism

is getting more blatant"; (4) the July 17, 2023, "cease and desist" video described supra note 1;

and (5) an August 8, 2023, charge of discrimination filed with the Florida Commission on

Human Relations and the Equal Employment Opportunity Commission, re-alleging the pur-

ported instances of discrimination and harassment described in the earlier "complaints."

(Doc. 74)

nondiscriminatory reason" for the plaintiff's termination: the plaintiff's falsi-

fied Class B license application and the plaintiff's non-compliance with the

EAP referral.’ Walker v. Mortham, 158 F.3d 1177, 1184 (11th Cir. 1998).

CONCLUSION

The defendant's motion (Doc. 44) for summary judgment is

GRANTED, and the plaintiff's motion (Doc. 46) for summary judgment is

DENIED. The clerk must enter judgment for the defendant and against the

plaintiff and must close the case.

ORDERED in Tampa, Florida, on July 6, 2026.

ALTAD.W Ad dyeleny

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

’ The plaintiff's motion enumerates five so-called “undisputed pretext markers" — an at best

conclusory and at worst unintelligible attempt to show that the defendant's proffered reason

for the termination was pretextual: (1) "shifting standards (50/25/25 and matrix not in pol-

icy/contract, applied selectively)"; (2) "training gatekeeping (promised OJT/SOP then with-

held SOP)"; (3) "selective licensure scrutiny (Self contacted DEP about Chavez but not non-

Hispanics)"; (4) “tolerance of slurs/physical contact"; and (5) "retaliatory escalation (EAP,

disablement, email exclusion, termination)." (Doc. 46 at 10-11)

-ll-