Camp v. HB&G Building Products, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

GLENN G. CAMP, )

)

Plaintiff, )

) CIVIL CASE NO. 2:17-cv-152-ECM

v. ) (WO)

)

HB&G BUILDING PRODUCTS, INC., )

LANCE SERVAIS, and MICHAEL )

MACK, )

)

Defendants. )

MEMORANDUM OPINION and ORDER

I. INTRODUCTION

Plaintiff Glenn G. Camp (“Camp”) brings this employment discrimination action

against his former employer, Defendant HB&G Building Products, Inc. (“HB&G”), its

Chief Executive Officer Lance Servais (“Servais”), and Director of Human Resources

Michael Mack (“Mack”). Camp alleges that in September 2016, HB&G terminated his

employment as Director of Human Resources and replaced him with Mack, a younger

African American male. He brings claims of discrimination on the bases of race, disability,

and age, and retaliation claims against HB&G pursuant to Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”); the Americans with Disabilities Act of

1990, 42 U.S.C. § 12101 et seq., as amended (“ADA”); and the Age Discrimination in

Employment Act of 1967, 29 U.S.C. §§ 621-634, as amended (“ADEA”) and the Alabama

Age Discrimination in Employment Act, Alabama Code § 25-1-20 (1975) (“AADEA”).

He also brings claims of interference and retaliation under the Family Medical Leave Act,

29 U.S.C. § 2601 et seq., (“FMLA”).

Now pending before the Court is the Defendants’ motion for summary judgment.

(Doc. 53). The Plaintiff has filed a response in opposition to the motion, (doc. 62), and the

motion is ripe for review. After careful consideration, the Court concludes that the

Defendants’ motion for summary judgment is due to be granted in part and denied in part.

Specifically, summary judgment is due to be granted to the Defendants on the Plaintiff’s

claims of race, disability, and age discrimination, and his claim of retaliation under the

FMLA. To the extent that the Plaintiff brings harassment and retaliation claims under the

anti-discrimination statutes, summary judgment is due to be granted on those claims.

Summary judgment is also due to be granted to the individual defendant Mack on Camp’s

FMLA interference claim.1

Summary judgment is due to be denied solely on the Plaintiff’s FMLA interference

claim that is based on his September 2015 FMLA leave request against HB&G and Servais.

II. JURISDICTION AND VENUE

The Court has original subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331

and 1343 and the jurisdictional grant found in 42 U.S.C. § 2000e-5(f)(3). The Court has

supplemental jurisdiction of the Plaintiff’s state law claim pursuant to 28 U.S.C. § 1367(a).

1 Camp also brought state law claims of negligent and wanton hiring, training, supervision and retention

against HB&G, but, in response to the Defendants’ motion for summary judgment, he “voluntarily

dismisses his Negligent and Wanton Hiring, Training, Supervision and Retention Claims.” (Doc. 63 at 68).

Accordingly, this claim is dismissed.

Personal jurisdiction and venue are uncontested, and the Court concludes that venue

properly lies in the Middle District of Alabama. See 28 U.S.C. § 1391.

III. SUMMARY JUDGMENT STANDARD

Under Rule 56(a) of the Federal Rules of Civil Procedure, a reviewing court shall

grant a motion for “summary judgment if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(a). The party seeking summary judgment “always bears the initial

responsibility of informing the district court of the basis for its motion, and identifying

those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any,’ which it believes demonstrates the absence of a

genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citing

Fed. R. Civ. P. 56). The movant can meet this burden by presenting evidence demonstrating

there is no dispute of material fact, or by showing that the non-moving party has failed to

present evidence in support of some element of his case on which he bears the ultimate

burden of proof. Id. at 322–23. Only disputes about material facts will preclude the granting

of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “An

issue of fact is ‘genuine’ if the record as a whole could lead a reasonable trier of fact to

find for the nonmoving party. An issue is ‘material’ if it might affect the outcome of the

case under the governing law.” Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d

1489, 1496 (11th Cir. 1996) (citing Anderson, 477 U.S. at 248).

Once the movant has satisfied this burden, the non-moving 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). Non-

movants must support their assertions “that a fact cannot be or is genuinely disputed” by

“citing to particular parts of materials in the record, including depositions, documents,

electronically stored information, affidavits or declarations, stipulations . . . , admissions,

interrogatory answers, or other materials” or by “showing that the materials cited do not

establish the absence or presence of a genuine dispute, or that an adverse party cannot

produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A) & (B).

In determining whether a genuine issue for trial exists, the court must view all the

evidence in the light most favorable to the non-movant. McCormick v. City of Fort

Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003). Likewise, the reviewing court must

draw all justifiable inferences from the evidence in the nonmoving party’s favor.

Anderson, 477 U.S. at 255. However, “mere conclusions and unsupported factual

allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England,

432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam).

A reviewing court is constrained during summary judgment proceedings from

making the sort of determinations ordinarily reserved for the finder of fact at a trial. See

Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012) (citations and

quotations omitted) (“Credibility determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts are jury functions, not those of a judge,

whether he is ruling on a motion for summary judgment or for a directed verdict.”). After

the nonmoving party has responded to the motion for summary judgment, the court must

grant summary judgment if there is no genuine issue of material fact and the moving party

is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a).

In reviewing whether the nonmoving party has met its burden, the court must stop

short of weighing the evidence and making credibility determinations of the truth of the

matter. Instead, the evidence of the nonmovant is to be believed, and all justifiable

inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994,

998–99 (11th Cir. 1992).

IV. FACTS

Glenn Camp is a Caucasian male who served as the Director of Human Resources

for HB&G from 1995 until his separation from the company in October 2016. Camp was

sixty-two years old when he was terminated. Graham Partners, a private equity firm, owns

HB&G, and the company manufactures building products. Servais is a Caucasian male

over the age of fifty who has served as CEO and President of HB&G since August 2009.

In August 2016, HB&G hired Mack, then a forty-four-year old African American male, to

replace Camp as Director of Human Resources. Servais supervised Camp directly until

August 29, 2016, when Servais designated Mack as Camp’s direct supervisor.

In September 2015, Camp injured his back, cutting trees on his property. Camp was

treated by his general practitioner, Dr. DiChiara, over the course of three or four office

visits during the month of September. Dr. DiChiara referred Camp to Dr. McNeal, a

neurosurgeon. Camp saw Dr. McNeal once in September 2015, and McNeal recommended

surgery.

On October 1, 2015, Camp completed a “FMLA Notice of Eligibility form” that he

addressed to himself from himself as HR Director. Around the same time that Camp

completed the FMLA paperwork, he informed Servais about his back injury. According

to Camp, Servais told him that he would lose his job if he took extended FMLA leave to

have back surgery. Servais denies this. Thereafter, Camp elected not to have the surgery

recommended by Dr. McNeal. Camp did not fill out or submit any paperwork to reflect

that his FMLA request had been denied or that he no longer planned to take FMLA leave.

In 2016, Graham Partners sought to sell HB&G. According to Servais, it was his

understanding that Camp did not want to remain with the company if HB&G was sold.

Servais asserts that, beginning in 2010, Camp told him several times that he did not want

to continue to be employed by HB&G if Graham Partners sold the company. Servais

contends that he believed that Camp wanted to retire or to leave HB&G’s employ before

the company was sold. Acting on his belief that Camp did not want to stay with HB&G

during a sale, Servais determined that HB&G needed to find a replacement for Camp as

Director of Human Resources to ensure a smooth transition at the senior management level

should the company sell in the fourth quarter of 2016.

In June 2016, Servais informed Camp that HB&G might be sold, and that Servais

was going to begin the process of replacing Camp as HR Director. Shortly thereafter,

Servais began the process of seeking a replacement for Camp. Servais asked Camp to

assist in the search process. Camp did not question Servais about why he was hiring a

Director of Human Resources, nor did Camp tell Servais that he did not want to leave

HB&G. At that time, the only thing Camp told Servais was that he wanted to remain

employed with HB&G at least until the end of 2016.

There is no evidence that Camp applied for the position of Director of Human

Resources, and, in August 2016, HB&G hired Mack to replace Camp. As previously noted,

Mack is African American, and he is younger than Camp. Servais informed Camp of

Mack’s hiring in August and told Camp that HB&G wanted Camp to remain with the

company through September to assist with Mack’s transition. Camp contends that Servais

told him that Mack was hired, in part, because of Mack’s race—to increase the number of

minorities in management positions. Servais disputes this interpretation of the

conversation.

After Mack’s hiring was announced, Servais discovered that Camp did not wish to

leave the company. Servais had been unaware that Camp wanted to remain employed as

HB&G’s Director of Human Resources until after Mack was hired as his replacement. The

Defendants assert that Camp changed his mind about a voluntary separation from

employment with HB&G, but only after Mack had been hired.

Camp, on the other hand, denies that he ever told Servais that he did not want to

remain employed if the company was sold, or that he planned to retire or leave HB&G.

Camp denies any desire to leave HB&G if the company was sold. According to Camp, he

never planned to retire or voluntarily leave his job with HB&G. However, Camp never

said anything to Servais about his desire to stay at HB&G in June 2016 when Servais told

him that HB&G was starting the hiring process to find Camp’s replacement as HR Director.

Camp also did not apply for that position in June or July of 2016. Camp does not deny

telling Servais in June 2016 that he wanted to remain employed as the HR Director at least

until the end of the year.

On September 8, 2016, Camp submitted a request to Mack, the new HR Director,

for FMLA leave beginning October 6, 2016. At that time, Camp had a scheduled

appointment with Dr. McNeal on September 27, 2016. According to Camp, HB&G’s

FMLA policy required him to give the company thirty days’ notice of FMLA leave. After

receiving Camp’s written FLMA leave request, Mack emailed Servais, writing, inter alia,

“I am unclear about the transition for [Camp]. I thought he was voluntarily leaving Due

(sic) to retirement. This morning he sent me a request for FMLA leave starting on the 27th.”

(Doc. 53 at 17). Servais responded to Mack the same day by email that Camp had “changed

his position after we hired you and said he wishes to continue to work with a different

company. I have given him September 30 as his last day of employment, unless you had

a need and he agreed to a longer time frame.” (Id.)

On September 23, 2016, Mack notified Camp that he was eligible for FMLA leave.

On September 27, 2016, Camp saw Dr. McNeal as scheduled, but Dr. McNeal informed

Camp that surgery was not necessary. On October 2, 2016, Camp informed Mack and

Servais that he no longer needed surgery or FMLA leave. Camp was not denied FMLA

leave following his September 2016 FMLA request.

Meanwhile, on September 12, 2016, Servais offered Camp a consulting contract for

the remainder of 2016. The consulting contract was presented as a proposed, confidential

agreement whereby Camp’s last day of employment would be October 7, 2016; he would

be paid $500 per week or any part of a week until December 31, 2016; he would be

compensated at that rate during the period he had surgery and was recovering; HB&G

would keep Camp on its medical insurance plan without an increase in Camp’s

contributions or rate until the end of 2016, at which point Camp would be put on COBRA

rates; HB&G would pay Camp’s annual bonus as though he completed the year as an

employee; and HB&G offered to supply company products to Camp at no cost to him. The

proposed agreement also made provisions for Camp to be paid should HB&G be sold, and

the payment options were guaranteed until December 31, 2019. Servais recommended that

Camp consult with an attorney about the offer. Camp declined the offer.

Camp’s last day of employment was October 7, 2016. Camp filed a claim for

unemployment benefits, and HB&G did not oppose it.

Ultimately, Graham Partners did not sell HB&G, as the sales process was terminated

in the fall of 2017.

After pursuing claims of discrimination and retaliation with the Equal Employment

Opportunity Commission, Camp filed this action on March 16, 2017.

V. DISCUSSION

In the operative complaint (“Complaint”), the Plaintiff asserts the following claims:

(1) Count One – Title VII claims of race discrimination based on demotion, disparate

treatment in terms of pay and conditions of employment, hostile work environment,

retaliation and termination against HB&G; (2) Count Two – ADA disability

discrimination, failure to accommodate, harassment, hostile work environment, and

retaliation related to his back injury against HB&G; (3) Count Three – ADEA and AADEA

disparate treatment, hostile work environment, retaliation, and termination based on his

age against HB&G; (4) Count Four – FMLA interference against all Defendants; and (5)

Count Five – FMLA retaliation against all Defendants. (Doc. 31).

The Defendants move for summary judgment on all counts.

A. Count One – Title VII Race Discrimination Claims

Title VII prohibits employers from discriminating “against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because of

such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1);

see also Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 347 (2013). Camp first

alleges that HB&G demoted him and ultimately terminated him because of his race.

Camp bears the ultimate burden of proving that the Defendant intentionally

discriminated against him. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253

(1981). The Eleventh Circuit has consistently held that federal courts, in resolving

discrimination claims, do not review the wisdom of an employer’s employment decision.

See e.g., Jones v. Bessemer Carraway Med. Ctr., 151 F.3d 1321, 1324 n.16 (11th Cir. 1998)

(explaining, “Title VII is not a shield against harsh treatment at the workplace. . . .The

employer may fire an employee for a good reason, a bad reason, a reason based on

erroneous facts, or for no reason at all, as long as its action is not for a discriminatory

reason”).

Camp relies on circumstantial evidence to support his claims. Therefore, Camp

must first establish a prima facie case of discrimination by presenting evidence to satisfy

the test set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).2 If Camp

establishes a prima facie case, the burden shifts to HB&G to produce “some legitimate,

non-discriminatory reason” for the challenged employment action. See id. at 802. If

HB&G satisfies this burden, Camp must then establish, by a preponderance of the

evidence, that the articulated reasons were mere pretext for intentional discrimination.

Burdine, 450 U.S. at 256. In the summary judgment context, Camp needs only to present

evidence from which a reasonable trier of fact could conclude the Defendants intentionally

discriminated against him on a legally impermissible basis.

Alternatively, Camp can “survive summary judgment if he presents circumstantial

evidence that creates a triable issue concerning the employer’s discriminatory intent.”

Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). “A triable issue

of fact exists if the record, viewed in a light most favorable to the plaintiff, presents a

convincing mosaic of circumstantial evidence that would allow a jury to infer intentional

discrimination by the decisionmaker.” Id. Camp may establish a convincing mosaic by

pointing to evidence that demonstrates “(1) suspicious timing, ambiguous statements . . .,

and other bits and pieces from which an inference of discriminatory intent might be drawn,

(2) systematically better treatment of similarly situated employees, and (3) that the

2 Although the Plaintiff acknowledges and argues the merits of his claims under the McDonnell Douglas

paradigm, he also argues that the framework is outdated and has been obviated by amendments and case

law. This Court is bound by Supreme Court and Eleventh Circuit precedent, and the use of the McDonnell

Douglas framework in employment discrimination cases is still appropriate.

employer’s justification is pretextual.” Lewis v. City of Union City, Ga., 934 F.3d 1169,

1185 (11th Cir. 2019).

To establish a prima facie case of disparate treatment based on his race, Camp must

show that (1) he is a member of a protected class, (2) he was qualified for his position, (3)

he suffered an adverse employment action, and (4) similarly situated employees outside of

his protected class were treated more favorably. Maynard v. Bd. of Regents of Div. of

Universities of Fla. Dep’t of Educ. ex rel. Univ. of South Fla., 342 F.3d 1281, 1289 (11th

Cir. 2003). It is undisputed that Camp satisfies the first two elements of a prima facie case

for race discrimination.

Turning to the third element, Camp contends that he suffered the adverse

employment actions of demotion and termination. A demotion and termination are

“ultimate employment decisions” which constitute adverse employment actions. See

Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). Although HB&G contends that

Camp was not demoted or terminated, the Court assumes without deciding for the purposes

of summary judgment that Camp was demoted and ultimately terminated from his position

as Director of Human Resources. Based on these adverse employment actions, Camp has

sufficiently established the third element of a prima facie case of race discrimination.

As to the fourth element, Camp relies on Mack’s hiring as evidence that persons

outside his protected class were treated more favorably. Accordingly, the Court concludes

that, for the purpose of summary judgment, Camp has demonstrated a prima facie case of

race discrimination.

The burden now shifts to HB&G to articulate legitimate, nondiscriminatory reasons

for its actions. Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1174 (11th Cir. 2010).

HB&G “need not persuade the court that it was actually motivated by the proffered

reasons.” Id. (quoting Burdine, 450 U.S. at 254). Instead, HB&G can rebut the

presumption of discrimination by articulating a non-discriminatory reason for the

employment action. Thereafter, the burden shifts back to the Plaintiff to show that the

articulated reason is simply a pretext for discrimination. Id.

HB&G asserts that the potential sale of HB&G, coupled with Servais’ beliefs that

Camp did not want to be involved in a sale of the company and that he was retiring, are

legitimate, nondiscriminatory reasons as to why Servais hired a new Director of Human

Resources to replace Camp. Servais testified that HB&G began preparing for a possible

sale of the company: “In May 2016, I began seeking a replacement for HB&G’s current

Director of Human Resources, Glenn Camp, based on my understanding that he did not

wish to remain with the company after it was sold.” (Doc. 54-2 at 3, para. 8).

In June 2016, Servais informed Camp that HB&G might be sold. Although Camp

denies previously telling Servais that he did not wish to remain with the company at the

time the company was sold, he concedes that he did not correct or question Servais about

his beliefs to that effect in June 2016. While Camp disputes having prior conversations

with Servais about his desire not to remain employed by HB&G after a sale of the company,

this dispute is not a material one which precludes summary judgment. The Defendant’s

proffered legitimate, non-discriminatory reason that Servais believed Camp wanted to

leave the company in the event of a sale is supported by evidence in the record. The Court

should not “recast the reason given by an employer for taking or failing to take a particular

job action.” Silvera v. Orange Cty. Sch. Bd., 244 F.3d 1253, 1260-61 (11th Cir. 2001)

(citing Chapman v. AI Transport, 229 F.3d 1012, 1030 n.19 (11th Cir. 2000) (en banc)

(“Just as plaintiffs are not allowed to recast an employer’s proffered reason, so also should

courts refrain from doing so.”)). Indeed, Camp does not dispute that Servais believed he

wanted to leave the company if it was sold. “A plaintiff must show not merely that the

defendant's employment decisions were mistaken but that they were in fact motivated by

[race].” Lee v. GTE Fla., Inc., 226 F.3d 1249, 1253 (11th Cir. 2000); Silvera, 244 F.3d at

1261 (“[A] mistaken belief in the existence of a neutral reason does not violate Title VII.”).

The Defendant has presented evidence in the form of Servais’ deposition and affidavit

testimony that, if believed by a trier of fact, establishes that race discrimination did not

motivate Servais’ decision to replace Camp as Director of Human Resources. Thus, even

if this reason is mistaken, the burden shifts to Camp to produce evidence that the proffered

reason was pretext and that race discrimination motivated Servais.

Camp has not offered evidence sufficient to establish pretext. The evidence of race

discrimination that Camp points to is the fact that Mack is African-American and Servais

told Camp—long after Camp was told he was being replaced and after Mack was offered

the job—that HB&G wanted to have more minority employees in management positions.

Servais’s alleged comment to Camp that Mack was hired in part because of the Company’s

desire for more diversity may suggest that race played a role in Mack’s hiring, but it has

no bearing on Camp’s claims. The mere fact that Camp was replaced by an African

American male is not evidence that he was replaced because he was Caucasian. Camp

offers no evidence to refute HB&G’s proffered evidence that the decision to replace Camp

was made before HB&G was even aware that Mack might be a candidate for Camp’s

position. The undisputed evidence demonstrates that Servais informed Camp that HB&G

was hiring a third-party search company to gather qualified candidates for the Director of

Human Resources position as early as spring 2016, that the headhunter firm submitted

Mack as a candidate, and that Servais made the aforementioned comment after Mack was

offered the job and before his start date. Accordingly, this comment, if made, is insufficient

to establish pretext. Camp has presented no evidence from which a reasonable jury could

conclude that the decision to replace him was motivated by his race.

A plaintiff may also establish pretext by producing evidence that reveals “such

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

Defendants’] proffered legitimate reasons for its actions that a reasonable factfinder could

find them unworthy of credence.” Springer v. Convergys Customer Mgmt Gr., Inc., 509

F.3d 1344, 1348–49 (11th Cir. 2007). “However, a reason is not pretext for discrimination

‘unless it is shown both that the reason was false, and that discrimination was the real

reason.’” Id. (citing Brooks v. County Comm’n. of Jefferson County, 446 F.3d 1160, 1163

(11th Cir. 2006)) (emphasis in original).

In some cases, proof that an employer’s asserted justification is false, when coupled

with the evidence establishing the plaintiff’s prima facie case, is sufficient to permit an

inference of discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.

133, 148 (2000). However, Camp’s evidence of pretext is entirely rooted in his own beliefs

and inferences. At best, Camp presents nothing more than unsubstantiated allegations and

conclusory statements in opposition to the Defendant’s motion for summary judgment with

respect to his race discrimination claim. “[U]nsubstantiated assertions alone are not

enough to withstand a motion for summary judgment.” Rollins v. TechSouth, Inc., 833 F.2d

1525, 1529 (11th Cir. 1987); see also Carter v. Three Springs Residential Treatment, 132

F.3d 635, 642 (11th Cir. 1998) (conclusory allegations without specific supporting facts

have no probative value).

Title VII does not make unexplained differences in treatment

per se illegal nor does it make inconsistent or irrational

employment practices illegal . . . What the law does require is

that an employer not discriminate against an employee on the

basis of the employee’s protected class characteristics.

E.E.O.C. v. Flasher Co., Inc., 986 F.2d 1312, 1319 (10th Cir. 1992).

Accordingly, because Camp cannot show a genuine issue of material facts exists

with respect to pretext, the Defendant is entitled to summary judgment on his race

discrimination claims.

II. Count Two – ADA Disability Discrimination Claims

The ADA provides that no covered employer shall discriminate against “a qualified

individual with a disability because of the disability of such individual” in any of the

“terms, conditions [or] privileges of employment.” 42 U.S.C. § 12112(a); United States E.

E.O.C. v. St. John’s Hospital, Inc., 842 F.3d 1333, 1343 (11th Cir. 2016). “A qualified

individual is an individual who, with or without reasonable accommodation, can perform

the essential functions of the employment position that such individual holds or desires.”

Mazzeo v. Color Resolution Intern., LLC, 746 F.3d 1264, 1267–68 (11th Cir. 2014). A

person has a disability if he has “(A) a physical or mental impairment that substantially

limits one or more of the major life activities of such individual; (B) a record of such an

impairment; or (C) regarded as having such an impairment.” Rossbach v. City of Miami,

371 F.3d 1354, 1357 (11th Cir. 2004).

“To establish a prima facie case for disability discrimination, a plaintiff must

present sufficient evidence to permit a jury to find that []he: (1) is disabled, (2) is a qualified

individual, and (3) was discriminated against because of [his] disability.” Lewis, 934 F.3d

at 1179 (italics in original). Camp bears the initial burden of establishing that he has, or is

perceived by HB&G as having, a disability within the meaning of the ADA, which requires

a demonstration that his physical impairment either does, or is perceived to, substantially

limit one or more major life activities.3 Mazzeo, 746 F.3d at 1268.

Camp asserts that he is disabled from his back injury, or was perceived by HB&G

as disabled, because he walked with a limp, could not sit for any length of time, and often

had to stand in meetings because of his back pain. Camp alleges that the Defendants failed

to accommodate his disability—his back injury—by denying him FMLA leave to have

surgery. Camp further argues that Defendants terminated his employment based on his

disability, rather than to allow him a leave of absence for back surgery and recovery at

some point in the future.

The Court accepts without finding that Camp’s back injury constitutes a disability

for the purposes of the ADA. Lewis, 934 F.3d at 1180. However, Camp must still establish

that his disability substantially limits a major life activity, or that HB& perceived him to

3 For Camp to succeed on a “regarded as” theory of disability, he must demonstrate that HB&G regarded

him as having “a physical impairment that substantially limits one or more major life activities” or that the

Defendants regarded his “actual, nonlimiting impairment [as] substantially limit[ing] one or more major

life activity.” See Carruthers v. BSA Advertising, Inc., 357 F.3d 1213, 1216 (11th Cir. 2004).

be substantially limited in a major life activity. To be considered substantially limiting,

the impairment “need not prevent, or significantly or severely restrict, the individual

from performing a major life activity.” 29 C.F.R. § 1630.2(j)(1)(ii). “The determination of

whether an impairment substantially limits a major life activity requires an individualized

assessment.” Id. at § 1630.2(j)(1)(iv). In determining whether an individual is substantially

limited in a major life activity, the condition, manner, or duration of the impairment is

considered. Id. at § 1630.2(j)(4).

Camp contends that he is substantially limited in the major life activities of walking,

standing and sitting because, due to his back injury, he limped, could not sit for long periods

of time, and often stood in meetings. He contends that the Defendants must have regarded

him as disabled because they terminated him for requesting FMLA leave. Camp relies on

his own testimony that he suffered a back injury. While Camp asserts that his injury

adversely affected his ability to walk, sit and stand, Camp presents no other evidence

describing his back injury, or detailing the extent of his back injury. Camp does not assert

that he missed work as the result of his back injury. In fact, Camp continued to perform

his job duties. Munoz v. Selig Enterprises, Inc., 981 F.3d 1265, 1273 (11th Cir. 2020)

(noting that “the record [did] not contain evidence of the timing, frequency, and duration

of [the Plaintiff’s] impairments”); Lewis, 934 F.3d at 1180 (noting that the “record [was]

devoid of evidence of the severity, frequency, and duration” of pain that substantially limits

a major life activity.”). Beyond his assertion that his back injury substantially limited a

major life activity, or that HB&G perceived him to be substantially limited, Camp points

to no other evidence the HB&G considered him to be substantially limited by his back

injury.

Camp must demonstrate that there are genuine issues of material facts regarding

whether his back impairment actually, or was perceived by the Defendant, as substantially

limiting him in the major life activity of walking, sitting, and standing. Without presenting

some evidence that he was substantially limited in a major life activity, or that HB&G

perceived him to be substantially limited, Camp’s disability claim fails. Munoz, 981 F.3d

at 1273–74; E.E.O.C. v. STME, LLC, 938 F.3d 1305, 1314 (11th Cir. 2019) (“To state a

disability discrimination claim, a claimant must allege that []he was a “qualified

individual” who suffered an adverse employment action because of [his] “disability” as

those terms are defined by the ADA.”).

Moreover, assuming without deciding, that a leave of absence in September 2015,

September 2016, or sometime in the vague future would constitute an accommodation for

the Camp’s back injury, Camp’s failure to accommodate claim fails as a matter of law.

The ADA imposes upon employers the duty to provide reasonable accommodations for

known disabilities unless doing so would result in an undue hardship to the employer. 42

U.S.C. § 12112(b)(5)(A); Batson v. Salvation Army, 897 F.3d 1320, 1326 (11th Cir. 2018).

It is the plaintiff’s burden to identify an accommodation and demonstrate that the

accommodation would permit him to perform the essential functions of his job. See also

Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255–56 (11th Cir. 2001). Camp has not

demonstrated that the accommodation of FMLA leave would allow him to perform the

essential functions of his job as Human Resources Director. In fact, the evidence is

contrary—Camp continued to perform his job’s essential functions without FMLA leave

and testified that he would have continued to do so had his employment continued

regardless of whether he was accommodated with FMLA leave. Thus, the Court concludes

that Camp has failed to meet his burden of demonstrating that FMLA leave was a

reasonable accommodation which would allow him to perform the essential functions of

his job.

Furthermore, Camp points to no evidence that he asked for FMLA leave as an

accommodation for his disability. In 2015, Camp completed the FMLA form, addressed

to and from himself as HR Director. There is no evidence that Camp requested the leave

as accommodation, or that the leave was denied. With respect to his request for FMLA

leave in 2016, the undisputed evidence demonstrates that Mack told Camp he was eligible

for FMLA leave, but Camp informed Mack that he no longer needed surgery or leave.

Even if the FMLA request could be considered a request for an accommodation, Camp was

not denied leave or an accommodation. “Absent such denial, there can be no failure to

accommodate under the ADA.” Batson, 897 F.3d at 1327. Consequently, no reasonable

jury could conclude from the evidence that Camp requested a reasonable accommodation,

or that he was terminated based on a disability. Thus, the Defendant is entitled to summary

judgment on the Plaintiff’s disability discrimination claims.

C. Count Three – ADEA and AADEA Age Discrimination Claims

The Court now turns to Camp’s claim of age discrimination.4 Because Camp’s age

discrimination claim is based circumstantial evidence, the Court applies the McDonnell

Douglas, supra, framework.

To make a prima facie case of age discrimination, the

employee must show: (1) he was a member of the protected

group between the age of forty and seventy; (2) he was subject

to an adverse employment action; (3) a substantially younger

person filled the position from which he was discharged; and

(4) he was qualified to do the job from which he was

discharged. Kragor v. Takeda Pharm. Am., Inc., 702 F.3d

1304, 1308 (11th Cir. 2012). Once an employee has established

a prima facie case, “the burden shifts to the employer to rebut

the presumption of discrimination with evidence of a

legitimate, nondiscriminatory reason for the adverse

employment action.” Id. If the employer proffers a legitimate,

nondiscriminatory reason, the burden shifts back to the

employee to show that the employer's reason is a pretext. Id.

Liebman v. Metropolitan Life Ins. Co., 808 F.3d 1294, 1298 (11th Cir. 2015).

“To ultimately prevail, a [p]laintiff must prove by a preponderance of the evidence

(which may be direct or circumstantial), that age was the but-for cause of the challenged

employer decision.” Mazzeo, 746 F.3d at 1270 (quoting Gross v. FBL Fin. Servs., Inc., 557

U.S. 167, 177–78 (2009)) (internal quotations omitted); Sims v. MVM, Inc., 704 F.3d 1327,

1332 (11th Cir. 2013).

The parties do not dispute that Camp has established a prima facie case of age

discrimination. However, in response to Camp’s age discrimination claim, HB&G proffers

4 Alabama courts have “adopted the same burden-shifting analysis applied to federal age-discrimination

claims brought under the federal Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et

seq.” Lambert v. Mazer Disc. Home Centers, Inc., 33 So. 3d 18, 23 (Ala. Civ. App. 2009) (citing Robinson

v. Alabama Cent. Credit Union, 964 So. 2d 1225, 1228 (Ala. 2007)).

the same legitimate, non-discriminatory reason for replacing Camp—Servais believed that

Camp did not want to stay with the company if it was sold. The Defendant has presented

sufficient evidence in the form of Servais’ deposition and affidavit testimony that

establishes that age discrimination did not motivate Servais’ employment decision, if

believed by a trier of fact.

The burden shifts to Camp to offer evidence sufficient to establish pretext. “The

burden of persuasion always remains on the plaintiff in an ADEA case to proffer evidence

sufficient to permit a reasonable fact finder to conclude that the discriminatory animus was

the ‘but-for’ cause of the adverse employment action.” Sims, 704 F.3d at 1332. According

to Camp, his termination was discriminatory because he was replaced by Mack who was

substantially younger. Camp also points to comments by Servais, at some point in the past,

when Servais inquired about when older employees were eligible to retire. Of course, there

are perfectly benign explanations for why a CEO would ask the Director of Human

Resources when employees are eligible to retire that have nothing whatsoever to do with

age discrimination — the CEO of a company has a responsibility to plan for future staffing

changes and needs. Camp has not presented any evidence that there were discriminatory

reasons for any such inquiries. More fundamentally, however, Camp fails to present

sufficient evidence of pretext and that his age was the “but-for” cause of Servais’ decision.

See Sims, 704 F.3d at 1334 (presenting “virtually no evidence of age bias on the part of

[the decision-maker] who was 61 himself at the time.”). After careful review, the Court

concludes that Camp has failed to demonstrate pretext, or that age bias was the “but-for”

cause of Servais’ decision. The Defendant’s motion for summary judgment on this claim

under both the ADEA and the AADEA is due to be granted.

D. FMLA Claims (Counts Four and Five)

1. Individual liability under the FMLA

Defendants Servais and Mack contend that they are entitled to summary judgment

on Camp’s FMLA claims individually because they are not considered an “employer”

under the FMLA. The Defendants argue that

[a]s a preliminary matter, neither Servais or Mack can be held

liable for either FMLA claim because neither meets the

definition of an employer under the FMLA and the 11th Circuit

has not recognized individual supervisory liability under the

FMLA.

(Doc. 53 at 22) (footnote omitted).

Camp responds that the definition of an “employer” can include individuals

employed as supervisors for a corporate entity, but he concedes that Mack cannot be

considered an employer for purposes of the September 2015 FMLA request because Mack

was not an employee of HB&G in 2015.

Servais and Mack fail to properly articulate reasons why they should not be

considered employers. On a motion for summary judgment, the Defendants bear the

burden of demonstrating that they are entitled to judgment as a matter of law. On this

point, the Defendants have failed to meet their burden as they do not make any argument

in their brief in support of their motion for summary judgment to demonstrate that Mack

and Servais are not “employers” as a matter of law beyond arguing, generally, that the

Eleventh Circuit has not recognized individual liability against supervisors as employees

under the FMLA. The onus is upon the parties to formulate arguments, and absent

argument and supporting statutes or case law, the Defendants’ argument that Mack and

Servais are not “employers” is simply too undeveloped and devoid of support to compel a

finding in their favor or even to trigger a meaningful review by the Court. Resolution Trust

Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995); Road Sprinkler Fitters Local

Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994). For this

reason, the Court concludes that the Defendants are not entitled to summary judgment on

this issue.

2. FMLA Interference Claim

Camp alleges that Servais interfered with Camp’s right to FMLA leave in

September 2015, and that Servais and Mack interfered with his right to FMLA leave in

September 2016. The FMLA guarantees eligible employees “12 workweeks of leave

during any 12-month period . . . [b]ecause of a serious health condition that makes the

employee unable to perform the functions of the position of such employee.” Drago v.

Jenne, 453 F.3d 1301, 1305–06 (11th Cir. 2006) (alteration in original); Strickland v. Water

Works and Sewer Bd. of the City of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001).

“An FMLA interference claim lies if an employee can demonstrate by a preponderance of

the evidence that []he was entitled to an FMLA benefit and [his] employer denied [him]

that benefit.” Munoz, 981 F.3d at 1275; see also Surtain v. Hamlin Terrace Found., 789

F.3d 1239, 1247 (11th Cir. 2015). A plaintiff “does not have to allege that his employer

intended to deny the right; the employer’s motives are irrelevant.” Strickland, 239 F.3d at

1208. “[B]ecause the FMLA requires notice in advance of future leave, employees are

protected from interference prior to the occurrence of a triggering event.” Pereda v.

Brookdale Senior Living Communities, Inc., 666 F.3d 1269, 1274 (11th Cir. 2012).

Camp asserts that (1) he applied for FMLA leave in September 2015 to have

corrective surgery for a back injury; (2) he informed Servais—his immediate supervisor

and the ultimate decision maker regarding his FMLA leave request—that he needed several

weeks of FMLA leave; and (3) Servais told Camp that, if Camp took FMLA leave, he

would be replaced. Servais denies telling Camp that he would be replaced if he took leave

for surgery. Clearly, there are genuine disputes of material fact about what Servais said

about Camp’s need for FMLA leave. If believed by a trier of fact, Camp’s version of the

facts is sufficient to sustain an FMLA interference claim. Construing the facts in a light

most favorable to the Plaintiff, Servais threatened Camp with termination if he took FMLA

leave in 2015.5 The threat caused Camp to abandon his attempt to obtain FMLA leave.

This is sufficient to survive the Defendants’ motion for summary judgment on Camp’s

September 2015 FMLA interference claim. Consequently, with regard to Camp’s FMLA

interference claim based on his September 2015 leave request, summary judgment is due

to be denied as to this claim against HB&G and Servais.6

5 To the extent that the Defendants argue that HB&G and Servais “never got the opportunity to fully assess,

analyze, and grant or deny the request, which cannot be considered an actual request,” (doc. 53 at 23-24),

they are entitled to no relief on this basis. It is unlawful under the FMLA for an employer “to interfere

with, restrain, or deny … the attempt to exercise” any right allowed by the FMLA. 28 U.S.C. § 2615(a)(1)

(emphasis supplied). Construing the facts and inferences in the light most favorable to Camp, as the Court

must do on summary judgment, Camp’s actions are sufficient to place Servais and HB&G on notice that

Camp was attempting to exercise his rights under the FMLA.

6 The Plaintiff concedes that this claim is not appropriate against Mack, and summary judgment will be

entered in his favor on this claim.

The Court now turns to Camp’s FMLA interference claim based on his September

2016 FMLA request. Camp testified that he was not denied FMLA leave in 2016. As a

matter of law, an interference claim cannot succeed if the FMLA request was not denied.

See, e.g., Drago, 453 F.3d at 1305–06. Moreover, the uncontroverted evidence

demonstrates that Camp withdrew his 2016 FMLA request after his September 27, 2016

appointment with Dr. McNeal because he did not need surgery or FMLA leave.

Furthermore, it is undisputed that HB&G, Servais, and Mack considered Camp’s FMLA

request and determined that he was in fact eligible for the leave.

The Plaintiff argues that a jury could infer that the decision to terminate Camp’s

employment was made after Camp submitted an FMLA request in September 2016 in order

to deny him FMLA leave. Relying on the fact that the parties had not settled on Camp’s

final date of employment, Camp argues a trier of fact could conclude that he was terminated

because he requested FMLA leave on September 8, 2016. This argument is unavailing. In

June 2016, Servais told Camp that he was being replaced and that the company wanted

Camp to stay on for a transition period after a replacement was hired. In August 2016,

Mack was hired to replace Camp.

On September 7, 2016, Camp submitted his request for FMLA leave beginning on

October 6, 2016. By the time Camp submitted his FMLA request, the decision to terminate

his employment had already made and communicated to him. Although Camp contends

that a jury could find that the Defendants decided to hasten his departure because of the

FMLA request, Camp presents no supporting evidence. More importantly, it is the decision

to terminate Camp’s employment, not the timing of his separation from employment, that

would constitute an adverse employment action. The decision to replace Camp occurred

long before Camp requested FMLA leave in September 2016.

When Mack received the FMLA request, he contacted Servais the next day to

request guidance, as he believed Camp was setting up the company. Servais suggested that

the company seek legal advice. Ultimately, on September 23, 2016, the company approved

Camp’s FMLA request. However, Camp withdrew the request on October 2, 2016. There

is simply no evidence before the Court that the Defendants interfered with Camp’s request

for FMLA leave in September, 2016. To the contrary, the uncontroverted evidence of

record is that the Defendants considered Camp’s request and approved it. Accordingly, the

Defendants are entitled to summary judgment regarding Camp’s 2016 FMLA request.

3. FMLA Retaliation

Camp also brings FMLA retaliation claims with respect to the 2015 and 2016 FMLA

requests. Unlike an interference claim, which does not have a scienter element, Camp

“must demonstrate that [HB&G] intentionally discriminated against him in the form of an

adverse employment action for having exercised an FMLA right.” Jones v. Gulf Coast

Health Care of Del., LLC, 854 F.3d 1261, 1270 (11th Cir. 2017) (internal quotations

omitted). “In other words, [Camp] must show that his employer’s actions were motivated

by an impermissible retaliatory or discriminatory animus.” Strickland, 239 F.3d at 1207

(internal quotations omitted).

Camp contends that HB&G terminated his employment as retaliation for his

attempts to exercise his FMLA rights in 2015 and 2016. According to Camp, after he

requested FMLA leave in 2015 due to his back injury, Servais told him that he would be

replaced if he took FMLA leave. Camp then chose to not have surgery. Camp asserts that

he was terminated on October 7, 2016, after he again requested FMLA leave in September

2016.

Neither the Plaintiff nor the Defendants assert that there is direct evidence of

retaliation in this case. Therefore, the Court again applies the McDonnell Douglas

framework to Camp’s retaliation claims:

[T]he plaintiff must first establish a prima facie case by

demonstrating (1) [he] engaged in statutorily protected

activity, (2) [he] suffered an adverse employment decision, and

(3) the decision was causally related to the protected

activity. The burden shifts back to [HB&G] if [Camp] can

establish a prima facie case, requiring [HB&G] to “articulate a

legitimate, nondiscriminatory reason” for his

termination. Finally, if [HB&G] meets this burden, then

[Camp] must show that the supposedly legitimate reason was

in fact a pretext designed to mask illegal discrimination.

Jones, 854 F.3d at 1271 (internal citations omitted).

It is undisputed that Camp was engaged in statutorily protected activity when he

requested FMLA leave in 2015 and 2016 and that his employment was subsequently

terminated. However, Camp’s prima facie case of retaliation fails at the third prong. Even

construing the facts in the light most favorable to Camp, he was informed in June 2016 that

he would be replaced—roughly eight months after Servais allegedly threatened him with

termination if he took leave in September 2015.

“Close temporal proximity between protected conduct and an

adverse employment action is generally ‘sufficient

circumstantial evidence to create a genuine issue of material

fact of a causal connection.’” Hurlbert v. St. Mary’s Health

Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006)

(quoting Brungart v. BellSouth Telecomms., Inc., 231 F.3d

791, 799 (11th Cir. 2000)). But “temporal proximity, without

more, must be ‘very close’” in order to satisfy the causation

requirement. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361,

1364 (11th Cir. 2007) (quoting Clark Cty. Sch. Dist. v.

Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509

(2001)) (holding that “[a] three to four month disparity”

between the statutorily protected conduct and the adverse

employment action is too long to establish temporal

proximity).

Id. at 1271–72.

In this case, the temporal proximity between Camp’s September 2015 leave request

and his termination is too attenuated for Camp to establish the requisite causal connection

with respect to his 2015 leave request.

Camp’s September 2016 FMLA leave request, although closer in time to his

termination, does not save his FMLA retaliation claim either. The decision to replace

Camp was made in June 2016, and Mack was hired to replace Camp in August 2016. The

undisputed evidence demonstrates that Camp’s departure from the company was

determined long before he requested FMLA leave in September, 2016. Camp’s departure

date was not firmly established—it was dependent on the transition. While Camp’s actual

last day of employment was flexible, his departure from the company was not in doubt.

The Court concludes that Camp has failed to establish that there exists a genuine dispute

of material fact with respect to the causation prong of a prima facie case for his claim of

FMLA retaliation. The Defendants’ motion for summary judgment on Camp’s FMLA

retaliation claims is due to be granted.

E. Retaliation Claims

Camp alleges separate retaliation claims under multiple anti-discrimination statutes7

arguing that HB&G terminated him even though it should have known that he would file

a charge of race, age and disability discrimination with the EEOC. In the Eleventh Circuit,

to successfully allege a prima facie retaliation claim under

either Title VII, the ADEA or the ADA, a plaintiff must show

that (1) []he engaged in statutorily protected expression; (2)

[]he suffered an adverse employment action; and (3) the

adverse action was causally related to the protected expression.

Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002) (italics in original).

Statutorily protected activity includes filing charges with the EEOC, but “is not

limited to individuals who have filed formal complaints, but extends as well to those, . . .

who informally voice complaints to their superiors or who use their employers” internal

grievance procedures. Rollins v. State of Fla. Dep’t of Law Enforcement, 868 F.2d 397,

400 (11th Cir. 1989).

When questioned in deposition, Camp specified that the protected activity he

engaged in was the filing of EEOC charges after he was terminated. He makes no

allegation that he complained to anyone at HB&G, or that he filed any grievances with the

company prior to the end of his employment. Camp’s retaliation claims fail at the first

prong of prima facie case because he cannot demonstrate he engaged in protected activity

prior to the adverse employment action. “Camp admits that this protected activity occurred

7 Camp brings retaliation claims pursuant to Title VII, ADA, ADEA, and the AADEA.

after he was terminated, and therefore, it cannot form the basis of a claim of retaliation.”

(Doc. 62 at 65).

In an effort to salvage his retaliation claims, Camp contends that because the

Defendants knew he was seeking legal counsel, a reasonable jury could conclude that the

decision to terminate him was based on “a retaliatory animus.” (Id. at 66). Camp further

argues that HB&G should have known he was going to file an E.E.O.C. charge because

Mack was an experienced Human Resources Director. Camp points the Court to no

evidence that HB&G suspected or feared that he would file a charge of discrimination. At

best, the evidence shows that Camp filed his charges of discrimination after the decision to

terminate his employment was made by HB&G.

Although Camp argues there is other evidence of discriminatory animus, (doc. 62

at 65–66), Camp in fact relies on pure speculation. Camp repeatedly testified in deposition

that the Defendants “should have known” that he was going to file an EEOC charge or a

lawsuit alleging discrimination. However, speculation and assumptions are not evidence.

Camp has presented no evidence to support his claims of retaliation. His reliance on

repeated and unsubstantiated allegations is insufficient to preclude summary judgment on

these claims.

F. Hostile Work Environment Claims

Camp alleges claims of hostile work environment under multiple anti-

discrimination statutes,8 asserting that these claims are encapsulated in his discrimination

8 Camp brings his hostile work environment claims pursuant to Title VII, ADA, and the ADEA.

claims. Camp devotes a single paragraph in his brief to his hostile work environment

claims, not even setting forth the legal standard. His argument in its entirety is as follows:

Defendants argue that Camp cannot support his harassment

claims9 because Servais was not belittling towards him

verbally or in writing and Servais never made any negative

comments about his race, age, sex, or disability. (Doc. 53, p.

42.) But not all harassment claims must be based upon

belittling and humiliating comments. An employer can

unlawfully harass an employee by subjecting that employee to

an environment that reflects hostility to the employee’s race,

age or disability. The evidence summarized and discussed

above is sufficient for a reasonable jury to conclude that

Servais created a hostile or harassing environment for Camp

beginning in September 2015 and continuing until his

termination in October 2016.

(Doc. 62 at 64–65) (footnote in original).

A hostile work environment claim requires proof that “the workplace is permeated

with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive

to alter the conditions of the victim’s employment and create an abusive working

environment.” Gowski v. Peake, 682 F.3d 1299, 1311 (11th Cir. 2012) (quoting Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).

9 Camp has not asserted stand-alone harassment claims. The harassment allegations are part and parcel of

his discrimination claims. As the Supreme Court noted in Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,

66 (1986), Title VII’s prohibition is an expansive concept which sweeps within its protective ambit the

practice of creating a work environment heavily charged with discrimination. Harassment or hostile

environment claims are based on the totality of the circumstances. A hostile work environment claim is

composed of a series of separate acts that collectively constitute one unlawful employment practice.

National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002).

To establish a prima facie case of hostile work environment,10 a plaintiff must show

that

(1) he belongs to a protected group; (2) that he suffered to

unwelcome harassment; (3) that the harassment was based on

a protected characteristic of the employee, . . .; (4) the

harassment was sufficiently severe or pervasive to alter the

terms and conditions of employment and create a

discriminatorily abusive working environment; and (5) the

employer is reasonable for that environment under a theory of

either direct liability or vicarious liability.

Fernandez v. Trees, Inc., 961 F.3d 1148, 1153 (11th Cir. 2020).

“To show that harassment was sufficiently severe or pervasive to alter the terms or

conditions of his employment, an employee must prove that his work environment was

both subjectively and objectively hostile.” Id. It is the fourth element—conduct

sufficiently severe or pervasive to alter the conditions of employment—“that tests the

mettle of most . . . harassment claims.” Gupta v. Fla Bd. of Regents, 212 F.3d 571, 583

(11th Cir. 2000). A plaintiff must establish that the harassment is sufficiently severe or

pervasive to ensure that “Title VII does not become a mere general civility code.” Id.

(internal quotations omitted). There is an objective and subjective component to the fourth

prong, and the Court “examine[s] the statements and conduct complained of collectively

to determine whether they are sufficiently pervasive or severe” to constitute harassment.

Id.

10 The Court assumes, without deciding, that Camp can bring an aged-based or disability-based hostile work

environment claims in addition to a race-based hostile work environment. See Cooper v. CLP Corp., 679

F. App’x 851, 852–53 (11th Cir. 2017); see also Barneman v. In’t Longshoreman Assoc. Local 1423, 2021

WL 50156 n.6 (11th Cir. Jan. 6, 2021) (assuming a claim of hostile work environment is “cognizable under

the ADA or the ADEA,” claims are subject to exhaustion requirement).

Camp relies on the alleged denial of his FMLA leave in September 2015 and his

termination to support his claims of a hostile work environment. However, discrete

employment actions do not alone give rise to an actionable hostile work environment claim.

See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002); McCann v.

Tillman, 526 F.3d 1370, 1378–79 (11th Cir. 2008). Camp fails to establish that the discrete

employment actions, viewed collectively, create a hostile work environment. Camp offers

no comments directed at him and describes no conduct sufficiently severe or pervasive to

affect a term or condition of his employment or create a hostile work environment. Even

if Camp could point to allegedly offensive comments, sporadic and isolated use of

derogatory language alone is not enough to establish severe or pervasive harassment.

Applying the requisite factors to the totality of these events, the Court concludes

that Camp has failed to establish a genuine issue of material fact regarding whether his

work environment was objectively sufficiently severe or pervasive to alter the terms and

conditions of his employment and create a hostile working environment. Camp presents

no evidence that he was hindered in his ability to do his job. This is not a situation where

“the workplace is permeated with discriminatory intimidation, ridicule, and insult.” Butler

v. Ala. Dep’t of Transp., 536 F.3d 1209, 1214 (11th Cir. 2008).

Camp’s hostile work environment claims are also deficient because Camp has failed

to demonstrate that any conduct about which he complains was based on his race, age, or

disability. To survive the Defendant’s properly supported motion for summary judgment,

Camp must come forward with some evidence in support of his claims that the allegedly

hostile work environment was based on protected characteristics. Camp points to no

evidence from which the Court could conclude that any conduct was motivated by his race,

age, or disability. See Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.

2002) (holding that, to establish a claim for a hostile work environment under Title VII,

the plaintiff must establish that he suffered workplace harassment on the basis of his

membership in a class protected by Title VII, such as race).

In sum, the Court concludes that Camp has failed to demonstrate that the conduct

about which he complains was motivated by protected characteristics. Thus, he has failed

to create a genuine dispute of material fact about a necessary element which is fatal to his

hostile work environment claims. The Court therefore concludes that the Defendants’

motion for summary judgment on Camp’s hostile work environment claims is due to be

granted.

VII. CONCLUSION

Accordingly, for the reasons as stated, it is

ORDERED as follows:

1. The Defendants’ motion for summary judgment (doc. 53) is GRANTED with

respect to Counts One, Two, Three, Five, and Six, and these claims are DISMISSED with

prejudice;

2. The Defendants’ motion for summary judgment (doc. 53) is DENIED with

respect to Count Four solely on the Plaintiff’s FMLA interference claim that is based on

his September 2015 FMLA leave request against HB&G and Servais; in all other respects,

the Defendants’ motion for summary judgment on Count Four is GRANTED.

3. The Defendants’ motion for summary judgment is GRANTED with respect

to claims against Defendant Mack individually.

Done this 29th day of March, 2021.

/s/ Emily C. Marks

EMILY C. MARKS

CHIEF UNITED STATES DISTRICT JUDGE