United States District Court, M.D. Florida, Tampa Division
F. OTIS STEPHEN, Plaintiff,
H. LEE MOFFITT CANCER CENTER AND RESEARCH INSTITUTE LIFETIME CANCER SCREENING CENTER, INC., Defendant.
CLIARLENE EDWARDS HONEYWELL UNITED STATES DISTRICT JUDGE
matter comes before the Court upon the Plaintiff's Motion
for Summary Judgment (Doc. 73), Defendant's Response in
Opposition (Doc. 83), Plaintiff's reply (Doc. 97),
Defendant's Motion for Summary Judgment (Doc. 77),
Plaintiff's amended response in opposition (Doc.
92)and Defendant's reply (Doc. 108).
Additionally, the Court has considered Defendant's Motion
to Strike Portions of Plaintiff's Response to Motion for
Summary Judgment (Doc. 102) and Plaintiff's response in
opposition (Doc. 109). Oral argument on the motions was held
on February 17, 2017 (Doc. 126). Upon due consideration of
the parties' submissions, including deposition
transcripts, affidavits, memoranda of counsel, and exhibits
attached thereto, and for the reasons that follow, the Court
will DENY Plaintiff's Motion for Summary Judgment and
GRANT Defendant's Motion for Summary Judgment.
Defendant's Motion to Strike Portions of Plaintiff's
Response to Motion for Summary Judgment will be DENIED.
STATEMENT OF FACTS 
F. Otis Stephen, who is black, began his employment with the
H. Lee Moffitt Cancer Center and Research Institute, Inc.
doing business as Moffitt Medical Group
(“Moffitt”) as an endoscopist and
gastroenterologist on May 21, 2013, at an annual salary of
$265, 012.80. Stephen Dep. at 10:2-9, 13:5-8, 15;18-24, 1:12-15;
Doc. 25 at ¶ 13. The Chair of the Gastrointestinal
Oncology Department, Dr. Mokenge Malafa, supervised Stephen.
Doc. 105 at ¶ 2. Non-party H. Lee Moffitt Cancer Center
and Research Institute Hospital, Inc. (the
“Hospital”) granted privileges to Stephen to work
at the Hospital. O'Connor Aff. ¶ 7. Moffitt placed
Stephen on paid leave on November 1, 2013, after which he
returned on November 11, 2013. But Moffitt ultimately
terminated his employment on October 23, 2014. The following
describes the series of incidents that occurred prior to
August 14, 2013 Procedure
August 14, 2013, Stephen was conducting an endoscopy
procedure and was the physician in charge. Doc 105 at ¶
3. The support staff included nurse anesthetist Christian
Cleveland-Peck, nurse Melissa Rosa, and endoscopy technician
Arnold Gallardo. Doc. 105 at ¶ 4. During the procedure
Rosa used the term “nigger-rig” to describe
fixing machinery that was not functioning properly during the
procedure. Stephen Dep. 179:24-180:11. Lucy Armistead,
Manager of Patient Care and Rosa's direct supervisor
became aware of this incident and notified Nancy Bolyard,
Director of Nursing for Perioperative Services. Dudley
at ¶ 25. On August 20, 2013, Bolyard e-mailed Stephen
alerting him that she was aware of the incident, that she
found that behavior unacceptable, and that she wanted to talk
to Stephen about it before addressing it with Rosa.
Id. Stephen responded, “I have no idea what
you are talking about.” Id. Bolyard then spoke
to Stephen, who told her that the issue had been resolved.
Stephen Dep. 181:6-16. Bolyard told Stephen that she was
going to investigate the incident, although Stephen said
there was no need. Id. at 181:16-17. Once the
investigation was complete, Moffitt issued a Coaching &
Counseling Report to Rosa relating to this incident. Dudley
Aff. at ¶ 25.
October 30, 2013 Procedure
October 30, 2013, Stephen performed another endoscopy
procedure. Gallardo, nurse anesthetist Lori Walz, and nurse
Luz Diez were present. Stephen Dep. 29:4-12, 29:25-30:1,
64:5-20. During the procedure, several of those present
participated in a heated and prolonged discussion involving
race relations, incarceration, and capital punishment.
Stephen Dep. 61-21-62:7; Doc. 105 at ¶ 8. Walz made a
statement to the effect of “blacks are in prison
because they commit all the crimes[.]” Stephen Dep.
77:24-80:18. Stephen said to Walz, while leaning forward and
raising his voice: “do not bring that racist shit to
me.” Stephen Dep. 82:13-21, 83:20-23.
Gallardo, Diez, and Walz provided reports to Human Resources
about the incident. Diez reported that Plaintiff lunged
across the table towards Walz and said “[y]ou don't
know the fuck about it.” O'Connor Aff. ¶¶
35-36. Walz reported that Stephen lunged at her with the
endoscope in his hand and screamed “[y]ou don't
know what the fuck you are talking about” and
“[t]hat's why you don't know anything[;]
because you're a white suburban bitch.” Dudley Aff.
¶¶ 27-28. She stated that she felt scared and
thought that Stephen was going to come across the table and
strangle her. Id. Gallardo corroborated Walz and
Rosa's accounts and stated that Stephen called Walz a
“white suburban bitch, ” that Walz was scared,
and that if there had not been a bed between them Stephen
would have leaped over at Walz. O'Connor Aff. at
¶¶ 35, 37.
attempted to report the incident to his supervisors Malafa
and Scott the same day. His assistant scheduled a meeting
with Stephen, Scott, and O'Connor for later that day.
Stephen Aff. at ¶ 9.
October 31, 2013, Dr. Jonathan Lancaster, then Moffitt's
President, Vice President Dr. Lee Green, and Jane
O'Connor met with Stephen. Stephen Dep. 96:16-20,
99:21-24. During the meeting, Stephen admitted that he leaned
forward and said “do not bring that racist shit to
me.” Id. at 99:21-102:25. Lancaster told
Stephen that he would be placed on paid leave of absence, and
that Moffitt would continue the investigation. Stephen Dep.
146:4-16, Ex. 5, 107:11-15. Stephen's scheduled
procedures were postponed prior to the meeting. Stephen did
not lose any pay or benefits and his paid time off continued
to accrue. Stephen Dep. 146:20-25. Stephen requested that
Moffitt interview nurse Sheila Homolya and Christian
Cleveland-Peck claiming that both had personal knowledge
regarding Gallardo's hostility towards Stephen. Stephen
Aff. at ¶ 10. Moffitt did not interview them.
Id. Walz was issued an Employee Counseling &
Coaching Report for the incident. O'Connor Aff. at ¶
38; Doc. 105 at ¶ 11.
November 10, 2013, Stephen signed an Equal Employment
Opportunity Commission (“EEOC”) Charge of
Discrimination (the “Charge”) against Moffitt
alleging “unequal terms and conditions of employment
when it came to disciplinary actions due to race[, ]”
in violation of Title VII of the Civil Rights Act of 1964, as
amended. Stephen Dep., Ex. 5, Doc. 89-2 at 15.
November 14, 2013, Stephen received a letter from Dr. Malafa
indicating that Moffitt would soon complete its investigation
of the October 30, 2013 incident, his paid leave was
concluded as of November 11, 2013, and his privileges were
restored. Doc. 89-5 at 8. The letter indicated that Stephen
was placed on leave “to de-escalate the situation and
allow Moffitt Medical Group to begin its investigation of
these complaints.” Id. On December 3, 2013,
Malafa issued a Final Written Warning (“FWW”) to
Stephen, regarding the October 30, 2013 incident, stating
that “an emotionally charged conversation involving
race escalated to an inappropriate level such that attention
and focus on the patient and procedure may have been
compromised.” Stephen Dep. 110:24-111:10, Ex. 4.
December 18, 2013, the Hospital informed Stephen that he had
to participate in a confidential peer review process called a
Focused Professional Practice Evaluation
(“FPPE”). O'Connor Aff. at ¶ 39; Stephen
Dep., Ex. 9. Gallardo filed a safety report based on
Stephen's conduct on October 30, 2013, which prompted the
FPPE. O'Connor Aff. at ¶ 39. The FPPE can result in
a suspension of privileges, but no discipline was imposed as
a result and Stephen maintained his privileges and continued
working. O'Connor Aff. at ¶¶ 41, 42, 45; Doc.
105 at ¶¶ 13, 15. The letter informing Stephen of
the FPPE indicated that there were “certain behavioral,
tardiness, and coverage issues related to [his] Medical Staff
membership” which caused the Hospital to conclude that
the circumstances warranted a FPPE for three months. Stephen
Dep., Ex. 9; Doc. 89-2 at 25.
September 29, 2014 Procedure
September 29, 2014, Stephen conducted a procedure with nurse
Rosa, endoscopy technician Noemi Cruz, and anesthesia
technician Victor Delgado. Stephen Dep. 160:17-25, Doc. 105
¶ 14. During the procedure the individuals discussed the
possibility of someone getting shot. Rosa and Cruz reported
that Stephen told them that he would “pop a cap in your
ass.” They also reported that Stephen touched
Cruz's arm, which Stephen admits. Stephen does not
specifically recall making the “pop a cap”
statement. But he asserts that if he did, it would have been
in jest and directed towards Delgado, not Cruz. Stephen Dep.
at 161:24-162:4; Dudley Aff. at ¶¶ 18-20.
conducted interviews of Rosa, Cruz, and Delgado. Quidgley
¶¶ 8-10. Cruz reported that Stephen pointed at her
and said “I have a gun too and I would pop a cap on
your ass.” Id. at ¶ 8. Cruz reported that
Stephen forcefully grabbed her arm during the procedure and
that he told Rosa he would “whoop [her] ass.”
Id. Rosa reported that Stephen grabbed Cruz's
arm during the procedure, id. at ¶ 9; told Cruz
“I will pop a cap in your ass” and told Rosa he
would “whoop [her] ass.” Beasley
at ¶¶ 7-8. Delgado reported that there was a
conversation about guns and he could not recall the specific
comments Stephen made, but that the comments attributed to
Stephen were the kinds of comments Stephen would
make. Quidgley Aff. at ¶ 10.
October 7, 2014, Ashley Dudley, Director of Strategic
Workforce Management met with Stephen to hear his version of
the September 29, 2014 events. Stephen Dep. 159:6-13; Dudley
Aff. at ¶ 17. Clifton Scott was present and Green
appeared by phone. Stephen Dep. at 159:14-20. Stephen
described, from his perspective, what happened in the
procedure room on September 29, 2014. Id. at
159:10-160:16; Doc. 105 at ¶ 17. He explained that the
conversation was in jest, admitted that the conversation was
about guns and someone getting shot, and stated that he
braced Cruz's arm with three fingers to prevent her from
bumping into him during the procedure. Id. at
161:24-162:4, 163:13-25, 164:1-8; Dudley Aff. at ¶¶
Doug Letson, Moffitt's Physician-in-Chief, concluded that
Stephen's statements constituted a tacit admission that
he made a threat of violence (whether to Cruz or Delgado) in
the workplace and decided that Stephen violated the
“zero tolerance policy” against threats. Letson
Aff. at ¶¶ 8-9. Letson also took
Stephen's admission that he braced Cruz's arm as
support for his conclusion that he touched Cruz in an
offensive manner which also violated the policy. Id.
at ¶¶ 8, 10. And overall Letson found Rosa and
Cruz's account of the September 29, 2014 incident
credible. Letson decided to terminate Stephen based on these
violations. Id. at ¶ 11. Stephen was terminated
on October 23, 2014.
again contacted the EEOC. Stephen Dep. 234:15-235:6, Ex. 8.
On December 17, 2014, Stephen received a letter from the EEOC
which referenced Stephen's conversation and
correspondence in which he alleged employment discrimination
against Moffitt based on his termination. The letter
indicated that in order for the EEOC to investigate the claim
he should file a charge of discrimination pursuant to Title
VII of the Civil Rights Act of 1964. Stephen Dep. at
235:11-25, 236:1-20, Ex. 8, Doc. 89-2 at 22-23. Stephen did
not file a second charge of discrimination and requested that
the EEOC refrain from investigating the matter further.
Stephen Dep. at 236:21-237:2; 237:12-19. Accordingly, the
EEOC did not investigate the termination claim. Id.
brings claims for violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000e(2) and (3)(a)
et seq. (“Title VII”), the Civil Rights
Act of 1866, 42 U.S.C. § 1981 (“§
1981”), and the Florida Civil Rights Act, Fla. Stat.
§ 760.01 et seq. (“FCRA”). He
asserts that Moffitt discriminated against him based on his
race and that he was the subject of disparate treatment,
harassment, retaliation and a hostile work environment.
Stephen seeks equitable relief, including back pay and front
pay, compensatory damages, punitive damages, attorneys'
fees, and costs.
judgment is appropriate when the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, show there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). The moving party bears the initial burden
of stating the basis for its motion and identifying those
portions of the record demonstrating the absence of genuine
issues of material fact. Celotex, 477 U.S. at 323;
Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,
1259-60 (11th Cir. 2004). That burden can be discharged if
the moving party can show the court that there is “an
absence of evidence to support the nonmoving party's
case.” Celotex, 477 U.S. at 325.
the moving party has discharged its burden, the nonmoving
party must then designate specific facts showing that there
is a genuine issue of material fact. Id. at 324.
Issues of fact are “genuine only if a reasonable jury,
considering the evidence present, could find for the
nonmoving party, ” and a fact is “material”
if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining
whether a genuine issue of material fact exists, the court
must consider all the evidence in the light most favorable to
the nonmoving party. Celotex, 477 U.S. at 323.
However, a party cannot defeat summary judgment by relying
upon conclusory allegations. See Hill v. Oil Dri Corp. of
Ga., 198 Fed.App'x 852, 858 (11th Cir. 2006).
standard of review for cross-motions for summary judgment
does not differ from the standard applied when only one party
files a motion, but simply requires a determination of
whether either of the parties deserves judgment as a matter
of law on the facts that are not disputed. Am. Bankers
Ins. Group v. United States, 408 F.3d 1328, 1331 (11th
Cir. 2005). The Court must consider each motion on its own
merits, resolving all reasonable inferences against the party
whose motion is under consideration. Id. The
Eleventh Circuit has explained that “[c]ross-motions
for summary judgment will not, in themselves, warrant the
court in granting summary judgment unless one of the parties
is entitled to judgment as a matter of law on facts that are
not genuinely disputed.” United States v.
Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984) (quoting
Bricklayers Int'l Union, Local 15 v. Stuart
Plastering Co., 512 F.2d 1017 (5th Cir. 1975)).
Cross-motions may, however, be probative of the absence of a
factual dispute where they reflect general agreement by the
parties as to the controlling legal theories and material
facts. Id. at 1555-56.
moves for partial summary judgment on his discriminatory
compensation claim under § 1981 only. He argues that he
has produced evidence that establishes a rebuttable
presumption of discrimination, and Moffitt has not adduced
sufficient evidence to rebut the presumption. For the reasons
stated in this Order, the Court will deny Plaintiff's
moves for summary judgment on all claims. It argues that
Stephen's claims are based on speculation and conjecture
and he is unable to provide any evidence that any adverse
action was motivated by race or protected activity.
Specifically, Moffitt argues that Stephen does not make out a
prima facie case of discrimination or retaliation because two
of the alleged adverse actions, his paid administrative leave
and FWW, were not materially adverse. To the extent
the Court finds these actions to be adverse, Moffitt argues
that it has proffered legitimate non-discriminatory and
non-retaliatory reasons for all three actions which Stephen
is unable to show are pretextual. And, Moffitt argues,
Stephen has not produced a proper comparator, either someone
who replaced him or received more favorable treatment who is
outside of his protected class. Further, Moffitt argues,
Stephen cannot show a temporal proximity between his Charge
and the alleged adverse actions sufficient to infer
retaliation. Finally, Moffitt argues that Plaintiff's
miscellaneous allegations of slights and disparate treatment
by other doctors, nurses, support staff, and the
administration are insufficient to support his claims of
racial discrimination and retaliation.
VII prohibits an employer from discriminating on the basis of
an individual's race. 42 U.S.C. § 2000e-2(a). The
FCRA likewise prohibits employment discrimination on the
basis of race. See Fla. Stat. § 760.10;
Grant v. Miami-Dade Cty. Water & Sewer
Dep't, 636 Fed.Appx. 462, 463 (11th Cir. 2015)
(noting that the FCRA uses the same framework as Title VII in
discrimination cases). Finally, § 1981 grants all
persons, regardless of race, the equal right to make and
enforce contracts. Except as noted below, the elements of
discrimination and retaliation claims under § 1981 are
the same as under Title VII. Rice-Lamar v. City of Fort
Lauderdale, Fla., 232 F.3d 836, 843 n. 11 (11th Cir.
2000) (discrimination); Chapter 7 Tr. v. Gate Gourmet,
Inc., 683 F.3d 1249, 1258 (11th Cir. 2012)
argument, Stephen abandoned his summary judgment motion as to
retaliation, conceding that Dr. Mokenge Malafa's
affidavit, Doc. 83-1, created a genuine issue of material
fact for trial precluding judgment in his favor. He also
abandoned his harassment claim. The Court need not address
Exhaustion of Administrative Remedies
must exhaust administrative remedies before filing suit under
Title VII or the FCRA. See 42 U.S.C. §
2000e-5(e); Fla. Stat. § 760.11. He must file a charge,
see 42 U.S.C. § 2000e-5(e), Fla. Stat. §
760.11(1), which must “be in writing under oath or
affirmation, ” 42 U.S.C. § 2000e-5(b), or the
statutes bar the claim. Vason v. City of Montgomery,
Ala., 240 F.3d 905, 907 (11th Cir. 2001); Miller v.
Florida Hosp. Waterman, 5:13-CV-249-OC-10PRL, 2013 WL
5566063, at *2 (M.D. Fla. Oct. 8, 2013) (citing Fla. Stat.
§§ 760.07, 760.11) (“Both Title VII and the
FCRA require as a prerequisite to filing a lawsuit that the
plaintiff timely file a charge of discrimination with the
appropriate administrative agency-either the EEOC or the
Florida Commission on Human Rights
(“FCHR”).”). A failure to cooperate with
the investigating agency also bars the plaintiff's
claims. Crawford v. Babbitt, 186 F.3d 1322, 1326-27
(11th Cir. 1999).
Stephen did not sign and return a second charge of
discrimination alleging wrongful discharge, and specifically
requested that the EEOC not investigate it. Accordingly,
Stephen failed to exhaust his administrative remedies as to
his discharge claims, and summary judgment will be granted to
Moffitt on his discharge claims under Title VII and the FCRA.
But since § 1981 claims do not require exhaustion of
remedies, the Court will analyze his discriminatory discharge
claim under that statute.
Defendant's Motion to Strike Portions of Plaintiff's