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Stephen v. H. Lee Moffitt Cancer Center

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

May 3, 2017

F. OTIS STEPHEN, Plaintiff,


         This 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)[1]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.

         I. STATEMENT OF FACTS [2]

         Plaintiff, 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.[3] 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.[4] ¶ 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 Stephen's termination.

         a. August 14, 2013 Procedure

         On 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 Aff.[5] 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.

         b. October 30, 2013 Procedure

         On 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.

         Afterwards, 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.

         Stephen 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.[6] at ¶ 9.

         On 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.

         On 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.

         On 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.

         On 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.

         c. September 29, 2014 Procedure

         On 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.

         Moffitt conducted interviews of Rosa, Cruz, and Delgado. Quidgley Aff.[7] ¶¶ 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 Aff.[8] 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.[9] Quidgley Aff. at ¶ 10.

         On 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 ¶¶ 21-23.

         Dr. 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.[10] 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.

         Stephen 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. at 237:21-25.

         Stephen 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.


         Summary 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.

         When 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).

         The 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.


         Stephen 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 motion.

         Defendant 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.[11] 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.

         Title 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) (retaliation).

         a. Abandoned Claims

         At oral 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 these issues.

         b. Exhaustion of Administrative Remedies

         Plaintiff 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).

         Here, 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.[12]

         c. Defendant's Motion to Strike Portions of Plaintiff's ...

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