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Peack v. Polk County Sheriff's Office

United States District Court, M.D. Florida, Tampa Division

February 2, 2017

EVANGELENE PEACK, Plaintiff,
v.
POLK COUNTY SHERIFF'S OFFICE, Defendant.

          ORDER

          VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE

         This matter comes before the Court pursuant to Defendant Polk County Sheriff's Office's Motion for Summary Judgment (Doc. # 48), filed on November 15, 2016. Pro se Plaintiff Evangelene Peack filed a response on January 12, 2017. (Doc. # 53). For the reasons that follow, the Motion is granted.

         I. Background

         A. Employment with the Sheriff's Office

         The Sheriff's Office, led by Sheriff Grady Judd, operates throughout the unincorporated areas of Polk County, Florida. (Fulse Decl. Doc. # 49-2 at ¶ 3). Additionally, the Sheriff's Office operates two jails: the South County Jail and the Central County Jail. (Id.).

         Peack was born in Trinidad and Tobago, and considers her national origin to be Trinidadian. (Peack Dep. Doc. # 49-5 at 27:13-17). She became a United States citizen around 2005, and identifies as Christian. (Id. at 31:10-22; 43:3-6). Peack was hired by the Sheriff's Office in April of 2011, for a position in the Telecommunications Unit. (Fulse Decl. Doc. # 49-2 at ¶ 4). In July of 2011, Peack transferred to the position of Detention Support Specialist (DSS), which is a civilian, unsworn position. (Id.; Marcum Decl. Doc. # 49-3 at ¶ 3). As a DSS, Peack had “operational, clerical and public relations duties” within the County's jails: DSS's “operate security doors, handle inmate property, monitor movement of visitors, monitor inmate activity, provide information to the public, assist other Detention members, maintain office logs, and document visitors.” (Marcum Decl. Doc. # 49-3 at ¶ 3). Peack also received some training to become a Victim Advocate during this time. (Doc. # 55 at 15-23).

         In May and June of 2013, Peack was working as a DSS in Central County Jail, and reported to Lts. Derwent Palmer or Todd Borders. (Marcum Decl. Doc. # 49-3 at ¶ 4). Lt. Borders was Peack's primary lieutenant but on days on which Lt. Borders was not working, Peack reported to Lt. Palmer. (Marcum Decl. Doc. # 49-3 at ¶ 4; Borders Decl. Doc. # 49-1 at ¶ 3). Both lieutenants reported to Captain Kimberley Marcum, who reported to Major Michael Allen. (Marcum Decl. Doc. # 49-3 at ¶ 4).

         The Sheriff's Office maintains “a written policy which encourages any [Sheriff's Office] employee who feels that he or she are the subject or victim of discrimination or harassment based upon a protected category, including race, color, religion and/or national origin to make a complaint with [the Sheriff's Office's] Human Resources Department.” (Fulse Decl. Doc. # 49-2 at ¶ 8). Peack never filed a complaint with the Human Resources Department during her employment. (Peack Dep. Doc. # 49-5 at 111:8-17; Fulse Decl. Doc. # 49-2 at ¶ 8).

         B. Scheduled Vacation

         Peack was scheduled to take a three-week vacation starting June 6, 2013. (Marcum Decl. Doc. # 49-3 at ¶ 10; Peack Dep. Doc. # 49-5 at 49:5-22). Peack emailed Lts. Palmer and Borders on May 8, 2013, requesting to take three hours off work on June 4 and all day off on June 5, 2013, so that she could attend a class. (Palmer Decl. Doc. # 49-4 at ¶ 4, Ex. A; Borders Decl. Doc. # 49-1 at ¶ 4). This class, called “Victim Services Practitioner Designation, ” was given by the Office of the Attorney General in Orlando, Florida, from June 3 to June 7, 2013. (Marcum Decl. Doc. # 49-3 at ¶ 12; Peack Dep. Doc. # 49-5 at 146:3-6; 151:18-152:2; Ex. 3). In her email, Peack explained why she wished to take the class: “This certificate will build my self esteem and create hope in my life. It will positively affect my performance on my job.” (Palmer Decl. Doc. # 49-4 at Ex. A).

         On May 21, 2013, Peack again asked Lt. Borders about taking vacation time on June 4 and 5 to attend the class. (Borders Decl. Doc. # 49-1 at ¶ 4). Although she could not take June 4 off as vacation time, Lt. Borders told Peack that she could switch shifts with another DSS, if he or she agreed. (Id.). Regarding June 5, Lt. Borders explained to Peack that she would need to get approval from Lt. Palmer, as Peack would be reporting to Lt. Palmer that day. (Id.).

         Lt. Palmer emailed Peack on May 31, 2013, and informed her that she could switch days with another DSS for June 5, if the other DSS agreed. (Palmer Decl. Doc. # 49-4 at ¶ 4, Ex. A; Peack Dep. Doc. # 49-5 at 156:11-13). The parties agree that Lt. Palmer also spoke to Peack on the telephone later on May 31, 2013. (Palmer Decl. Doc. # 49-4 at ¶ 4; Peack Dep. Doc. # 49-5 at 159:23-160:6). But the parties disagree regarding the content of the conversation. According to Lt. Palmer, he emphasized to Peack that she could not take June 5 off unless another DSS agreed to switch days with her. (Palmer Decl. Doc. # 49-4 at ¶ 4). The Sheriff's Office also asserts that Lt. Palmer informed Peack that she had to consult with Lt. Borders regarding whether Peack could take off June 4. (Id.). On the contrary, Peack insists that Lt. Palmer told her that her vacation could begin on June 4. (Peack Dep. Doc. # 49-5 at 84:10-17).

Q: So you're saying that somebody told you that you could take the 4th and 5th off and you didn't have any obligation to obtain coverage from another DSS?
A: Absolutely. Derwent Palmer did indeed call me and tell me to go ahead and take those two days off at around 5:30 that - around 5:30 the last day I worked before I took those two days off.

(Id.). Lt. Palmer denies giving Peack permission to take June 4 or 5 off. (Palmer Decl. Doc. # 49-4 at ¶ 4).

         Then, on June 3, 2013, Peack faxed a note to Lt. Borders stating that Lt. Palmer had allowed her to begin her vacation on June 4, 2013. (Borders Decl. Doc. # 49-1 at ¶ 5, Ex. A). The note states in part: “Lt. Palmer told me that I'm on vacation from June 4th for 3 weeks. I asked him if he can change it to 3 weeks from tommorow and he said he will see what he can do . . .” (Id.). The note also stated that Peack had misplaced her cellular telephone so she would have to be reached on her home telephone. (Id.).

         After attempts to reach Peack by telephone were unsuccessful, Lt. Borders emailed Peack at 6:02 PM on June 3, stating:

We have not discussed your vacation. Lt. Palmer is not who you are assigned to. You need to contact me by phone. I do not conduct business via Fax or Email. You never discussed anything with me or confirmed any time off. I strongly urge you to contact me before you leave.

(Borders Decl. Doc. # 49-1 at ¶ 5, Ex. B). Peack states that she did not see this email until June 4, 2013, because she did not check her email account that night. (Peack Dep. Doc. # 49-5 at 167:12-16; 172:14-173:10).

         C. Events of June 4, 2013

         On June 4, 2013, Peack did not report to work at 6:00 AM as she was scheduled to do. (Borders Decl. Doc. # 49-1 at ¶ 6). Because Lt. Borders was unable to reach Peack by telephone, Capt. Marcum directed Lt. Borders to drive to Peack's home to contact her, where he left a note on the door after Peack failed to answer. (Marcum Decl. Doc. # 49-3 at ¶ 7).

         Peack then called the jail and sent an email, saying that she would come to the jail when her son woke up. (Marcum Decl. Doc. # 49-3 at ¶ 7; Borders Decl. Doc. # 49-1 at ¶ 6). When Peack arrived at the jail with her young son, she spoke with Capt. Marcum and Lt. Borders in a conference room where Peack explained that she thought she was on vacation that day and had attended the class in Orlando that morning. (Marcum Decl. Doc. # 49-3 at ¶¶ 8-9; Borders Decl. Doc. # 49-1 at ¶ 7; Peack Dep. Doc. # 49-5 at 152:25-153:2). According to Capt. Marcum and Lt. Borders, Peack at that time stated that she had not seen Lt. Borders's June 3 email because she could not open email on her home computer. (Marcum Decl. Doc. # 49-3 at ¶ 8; Borders Decl. Doc. # 49-1 at ¶ 7).

         During the meeting, Peack asked if she could take time off the next day, June 5, to attend the remainder of the class in Orlando. (Marcum Decl. Doc. # 49-3 at ¶ 9; Borders Decl. Doc. # 49-1 at ¶ 7). Capt. Marcum emphasized to Peack that she had to switch shifts with another DSS if she wanted to take time off work on June 5. (Marcum Decl. Doc. # 49-3 at ¶ 9; Borders Decl. Doc. # 49-1 at ¶ 7). Additionally, Peack was ordered to obtain a telephone number on which she could be reliably reached, to contact Lt. Palmer immediately regarding switching shifts with another DSS on June 5, and to submit a report about her absence from work on June 4. (Marcum Decl. Doc. # 49-3 at ¶ 9; Borders Decl. Doc. # 49-1 at ¶ 7).

         Peack's son was seated outside the conference room, where he heard the entirety of the meeting and became upset. (Peack Dep. Doc. # 49-5 at 181:21-182:15). Peack too was deeply upset by the conversation with Capt. Marcum and Lt. Borders, and felt physically ill as a result. (Id. at 185:9-17). She immediately travelled to a clinic to see her doctor. (Id.). Later that night, Peack faxed the doctor's note she had obtained from “Doctor Today Urgent Care, LLC” to the jail, which stated that Peack should be excused from work until June 6, 2013 - the first day of her scheduled vacation. (Marcum Decl. Doc. # 49-3 at ¶ 10, Palmer Decl. Doc. # 49-4 at ¶ 5, Ex. B).

         D. Events of June 5, 2013

         Yet, at 5:45 AM on June 5, Peack reported to work in uniform. (Marcum Decl. Doc. # 49-3 at ¶10; Palmer Decl. Doc. # 49-4 at ¶ 6). Lt. Palmer asked Peack if she was able to work, and Peack informed him that “she was supposed to be taking a prescription but was too ill to pick up the medicine the previous day” and “was experiencing migraine headaches and possible vertigo.” (Palmer Decl. Doc. # 49-4 at ¶ 6). Lt. Palmer told Peack that she could not stay at work because of the doctor's note and Peack's statements about her condition but that “if she was not sick and could work, she would need to obtain an updated doctor's note allowing her to return to work.” (Id. at ¶ 7). According to Lt. Palmer, he “instructed her to call [him] and let [him] know if she was able to get such a note, ” but Peack never called. (Id.). Peack understood Lt. Palmer's instruction as an option:

Lt. Palmer says, “If you feel well enough to work today, go to your doctor and get a clearance.” He gave it as an option. . . . Because he gave me that option - it was optional - I didn't do what he told me to do ...

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