United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE
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.
Employment with the Sheriff's Office
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.).
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).
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).
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).
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).
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.
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
(Id.). Lt. Palmer denies giving Peack permission to
take June 4 or 5 off. (Palmer Decl. Doc. # 49-4 at ¶ 4).
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.
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).
Events of June 4, 2013
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 ¶
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).
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).
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).
Events of June 5, 2013
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 ...