BEFORE THE COURT are the parties' motions for summary judgment (Dkts. 45, 53) and their respective responses in opposition (Dkts. 57, 60). Upon consideration, Defendant's motion for summary judgment (Dkt. 45) is GRANTED and Plaintiff's motion (Dkt. 53) is DENIED.
This is an action involving claims of race discrimination and Family Medical Leave Act violations.In May 2008, Manatee County hired Stud Stephens, an African American, to work in a biosolids dryer facility where waste sludge is converted into a fertilizer product. As Stephens' supervisor, Christian Collins, explained, the process is "extremely dangerous" and carries a risk of explosion if it is not performed properly.
The facility is subject to regulation by the Florida Department of Environmental Protection which has issued a permit for the facility's operation. The permit specifically requires the facility to maintain logs which include "the signature and certification number of operator(s)" at the plant, the "date and time in and out," "specific operation and maintenance activities," "tests performed and samples taken," and "major repairs made." (Dkt. 45-3, at 28). Violation of these requirements may result in the suspension, termination or revocation of the permit. Fla. Admin. Code r. 62-620.345(1)(b).
On January 21, 2010, Stephens was scheduled to work from 7:00 p.m. to 7:00 a.m. The only other individual working at the facility that night was James Pusateri, who is Caucasian. At approximately 3:50 a.m., Collins received a call from an alarm monitoring company indicating that trouble had arisen at the facility. Collins called the facility but no one answered. He called Stephens' and Pusateri's cell phones and, again, no one answered. An employee from an adjacent plant discovered that all of the lights were turned off and the facility appeared to be shut down. He could not locate Stephens or Pusateri.
Collins arrived at the facility shortly after 4:00 a.m. and confirmed that Stephens and Pusateri had indeed abandoned their posts. Upon inspecting the facility, he found certain machinery operating unsupervised which, he believed, could have resulted in a dangerous malfunction or fire. Collins reviewed the official plant log and discovered falsified entries indicating that work was performed at 5:00 a.m. and that Stephens and Pusateri departed the plant at 7:00 a.m.
Collins informed the County Utilities Department's director, Daniel Gray, of the incident. On January 25, 2010, Gray met with Stephens, who admitted that he was scheduled to work until 7:00 a.m., that he left his shift before 5:00 a.m., and that he did not have permission to leave early. Stephens informed Gray that Pusateri had made the log book entries.
Following this meeting, Gray terminated Stephens and Pusateri. Stephens received a "Notice of Disciplinary Action" which cited multiple specific violations of the Manatee County Government Personnel Policy, Rules and Procedures Manual as the reason for his termination. (Dkt. 45-3, at 30).
At Stephens' request, the County conducted a post-termination hearing. Stephens appeared through counsel and was afforded the opportunity to testify, to offer exhibits, to call witnesses, to cross examine adverse witnesses, and to make a closing argument. After the hearing, the County officer issued an eight page recommended order finding that the County had just cause to terminate Stephens. (Dkt. 45-4). The County administrator formally adopted the recommendation. (Id.).
Shortly after his termination, Stephens filed a discrimination complaint pursuant to the Manatee County Commission's Personnel Policy. After a lengthy investigation, a report was issued which found no illegal discrimination or retaliation.
Proceeding pro se, Stephens commenced this action. After suffering two dismissals without prejudice, he filed a rambling second amended complaint (Dkt. 31). Although an improvement on his prior pleadings, the second amended complaint remains disjointed and at times incoherent. While less than clear, Stephens appears to allege six claims: (1) that he was terminated on account of his race, (2) that he was not promoted to "Senior Operator" and/or "Operator in Charge" on account of his race, and further, was terminated in retaliation for opposing the use of race discrimination in the promotion process, (3) that he was terminated for exercising his rights under the Family Medical Leave Act, (4) that he was deprived of his rights under the Equal Protection Clause because the County concealed the opportunity to apply for an Operator in Charge position, (5) that the County's job description for a Biosolids Plant Operator position caused a disparate impact on the basis of race which was not job-related or consistent with business necessity, and (6) that he was denied the right to due process in the pretermination hearing.
The County filed a motion for summary judgment, which was limited to Stephens' first and third claims, that is, Stephens' claims that he was terminated because of his race and because he attempted to exercise his FMLA rights. An order was entered informing Stephens of the requirements of Fed. R. Civ. P. 56. (Dkt. 49). He filed a response, several exhibits, an affidavit, a motion to strike, and a second motion for summary judgment.*fn1
Summary judgment is proper if following discovery, the pleadings, depositions, answers to interrogatories, affidavits and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56. "An issue of fact is 'material' if, under the applicable substantive law, it might affect the outcome of the case." Hickson Corp. v. Northern Crossarm Co., 357 F.3d 1256, 1259 (11th Cir. 2004). "An ...