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Veasy v. Bradshaw

United States District Court, S.D. Florida

June 12, 2017

WILBUR VEASY, Plaintiff,
RIC L. BRADSHAW, as Sheriff of Palm Beach County, Defendant.



         THIS CAUSE is before the Court upon Defendant Ric. L. Bradshaw's (“Defendant” or “Sheriff Bradshaw”) Renewed Motion for Summary Judgment, ECF No. [63] (the “Motion”), following remand from the United States Court of Appeals for the Eleventh Circuit, see ECF No. [60] (Mandate of the Eleventh Circuit, or “Mandate”). The Court has reviewed the Motion, all opposing and supporting submissions, the record and the applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion is granted.

         I. BACKGROUND

         Plaintiff, an African American man, was hired by the Palm Beach County Sheriff's Office (“PBSO”) on October 1, 1987 as a corrections officer to work in the Palm Beach County jail. Defendant's Statement of Undisputed Material Facts, ECF No. [64] (“Def. SOF”) at ¶ 1; Plaintiff's Verified Response to Defendant's Renewed Statement of Undisputed Material Facts, ECF No. [68] (“Pl. SOF”) at ¶ 1. More than twenty-five years later, on April 19, 2013, PBSO fired Plaintiff. Def. SOF at ¶ 1; Pl. SOF at ¶ 1. During the period of his employment, Plaintiff was subject to multiple disciplinary actions taken by PBSO, a number of which were the result of what PBSO classified as insubordination offenses. See Def. SOF at ¶ 2.[1] The last of those disciplinary actions-which would ultimately include Plaintiff's termination-stemmed from events that took place on February 5, 2013. See Id. at ¶¶ 7-13; Pl. SOF at ¶¶ 7-13.

         On February 5, 2013, Plaintiff was notified by the secretary of the Division of Internal Affairs (“Internal Affairs”) that he had been randomly selected to submit to a drug test pursuant to PBSO's random drug and alcohol testing policy.[2] Def. SOF at ¶ 7. According to Defendant, Sergeant Brett Combs (“Sergeant Combs”) with Internal Affairs first advised Plaintiff via telephone to drive his personal vehicle to the testing site when Plaintiff asked how he was supposed to get to the testing site. Plaintiff refused, and was thereafter ordered to report to Internal Affairs. Id. at ¶ 8. Apparently disputing that he was initially advised to drive his personal vehicle to the testing site, however, Plaintiff asserts that Sergeant Combs informed him via telephone to appear at Internal Affairs, to which he complied. Pl. SOF at ¶ 8.

         Relatedly, the parties dispute certain aspects of PBSO's random drug and alcohol testing policy, particularly as they relate to the location of where a corrections officer selected for random testing is to report. Defendant asserts that a corrections officer selected for random testing was previously required to report to Internal Affairs for testing. However, in November of 2011, PBSO switched to an outside company to administer the sample collection and testing. Def. SOF at ¶¶ 5-6. Defendant also asserts that at the time of Plaintiff's random selection, approximately 250 corrections employees had participated in the drug-testing program by reporting directly to the outside company for testing. Id. at ¶ 6. Plaintiff, on the other hand, denies those assertions, stating that “[t]here was no written policy change until after my termination.” Pl. SOF at ¶¶ 5-6.

         Once at Internal Affairs, Plaintiff twice refused orders by Sergeant Combs to report to the testing site in his personal vehicle. Def. SOF at ¶ 9; see also Pl. SOF at ¶ 11. Plaintiff's response to being ordered to drive to the testing site in his personal vehicle was subsequently “escalated” to Sheriff Bradshaw, who gave Plaintiff the option of either driving to the test site in his personal vehicle or being placed on administrative leave. Def. SOF at ¶ 10. Plaintiff responded that his “2007 red four door Tacoma is not going, ” and Plaintiff was subsequently placed on administrative leave. Id. Thereafter, PBSO conducted an Internal Affairs investigation into the matter and concluded that Plaintiff had violated two rules and regulations. Id. at ¶ 11; Pl. SOF at ¶ 11. Captain Frank Milo (“Captain Milo”), who was assigned to review the Internal Affairs investigation and to make a discipline recommendation, recommended termination. This was based upon his review, Plaintiff's prior disciplinary history, and what was perceived as Plaintiff's “recurring problem with insubordination.” Def. SOF at ¶ 12. On April 19, 2013, following a pre-disciplinary hearing, Plaintiff's employment was terminated.[3] Id. at ¶ 13.

         Plaintiff subsequently filed a claim for unemployment benefits, which was denied after a hearing before an appeals referee. Id. at ¶ 14. Plaintiff appealed that denial, which was ultimately affirmed by both the Reemployment Assistance Appeals Commission and the Florida Fourth District Court of Appeal. Id. Plaintiff also filed a grievance and requested arbitration pursuant to a Collective Bargaining Agreement (“CBA”). Id. at ¶ 15. The arbitrator found that PBSO had just cause to terminate Plaintiff under the CBA. That determination was confirmed by the Palm Beach County Circuit Court when it denied a subsequent motion to vacate filed by Plaintiff. Id.

         On April 14, 2015, Plaintiff brought suit against Defendant under 42 U.S.C. §§ 1981 and 1983 and the Equal Protection Clause of the 14th Amendment to the U.S. Constitution, alleging employment discrimination and retaliation based on his race. More specifically, Plaintiff's Complaint asserts a discrimination claim alleging that Defendant terminated Plaintiff because of Plaintiff's race (Count I) and a retaliation claim alleging that Defendant terminated Plaintiff after Plaintiff complained of race discrimination (Count II).[4] On February 23, 2016, this Court granted summary judgment in favor of Defendant with respect to both of Plaintiff's claims upon determining that Defendant was entitled to Eleventh Amendment immunity. See ECF Nos. [41]-[42].[5] Plaintiff then appealed. See ECF No. [47].

         Ultimately, the Eleventh Circuit reversed this Court's Order granting summary judgment in favor of Defendant and remanded the case, holding that Defendant is not entitled to Eleventh Amendment immunity. See ECF No. [60] at 4 (citing Stanley v. Broward Cnty. Sheriff, 843 F.3d 920 (11th Cir. 2016)). In remanding the case, the Eleventh Circuit left it to this Court to decide in the first instance whether Defendant is entitled to summary judgment on the merits. Id. at 4 n.2. In the instant Motion, Defendant renews his request for summary judgment. Defendant argues that Plaintiff has failed to establish a prima facie case of race discrimination and retaliation and has also failed to demonstrate that Defendant's legitimate, non-discriminatory and non-retaliatory reason for the termination of Plaintiff is mere pretext. See ECF No. [63].


         A court may grant a motion for summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The parties may support their positions by citation to the record, including, inter alia, depositions, documents, affidavits, or declarations. See Fed. R. Civ. P. 56(c). An issue is genuine if “a reasonable trier of fact could return judgment for the non-moving party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is material if it “might affect the outcome of the suit under the governing law.” Id. (quoting Anderson, 477 U.S. at 247-48). The Court views the facts in the light most favorable to the non-moving party and draws all reasonable inferences in the party's favor. See Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). “The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which a jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252. The Court does not weigh conflicting evidence. See Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1140 (11th Cir. 2007) (quoting Carlin Comm'n, Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d 1352, 1356 (11th Cir. 1986)).

         The moving party shoulders the initial burden to demonstrate the absence of a genuine issue of material fact. See Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). If a movant satisfies this burden, “the nonmoving party ‘must do more than simply show that there is some metaphysical doubt as to the material facts.'” Ray v. Equifax Info. Servs., L.L.C., 327 F. App'x 819, 825 (11th Cir. 2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Instead, “the non-moving party ‘must make a sufficient showing on each essential element of the case for which he has the burden of proof.'” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The non-moving party must produce evidence, going beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designating specific facts to suggest that a reasonable jury could find in the non-moving party's favor. Shiver, 549 F.3d at 1343.

         In resolving the issues presented under Fed.R.Civ.P. 56, “the court may not weigh conflicting evidence to resolve disputed factual issues; if a genuine dispute is found, summary judgment must be denied.” Carlin Commc'n, Inc. v. Southern Bell Tel. & Tel. Co., 802 F.2d 1352, 1356 (11th Cir. 1986); see also Aurich v. Sanchez, 2011 WL 5838233, at *1 (S.D. Fla. Nov. 21, 2011) (“If a reasonable fact finder could draw more than one inference from the facts, and that inference creates an issue of material fact, then the court must not grant summary judgment.” (citing Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913 (11th Cir. 1993)). Even “where the parties agree on the basic facts, but disagree about the factual inferences that should be drawn from those facts, ” summary judgment may be inappropriate. Warrior Tombigbee Transp. Co., Inc. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983).


         A. Discrimination Claim under 42 U.S.C. §§ 1981 and 1983 (Count I) [6]

         Similar to Title VII, which prohibits an employer from discriminating against a person based on race or sex, see 42 U.S.C. §§ 2000e-2(a)(1), under 42 U.S.C. § 1981, “an employee has the right to be free of intentional racial discrimination in the performance of a contract.” Summers v. City of Dothan, Ala., 444 F.App'x 346, 347 (11th Cir. 2011); see also Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 474-75 (2006) (“Among the many statutes that combat racial discrimination, § 1981 . . . has a specific function: It protects the equal right of ‘[a]ll persons within the jurisdiction of the United States' to ‘make and enforce contracts' without respect to race.”) (quoting 42 U.S.C. § 1981(a)); 42 U.S.C. § 1981(b) (including in the definition of the phrase “make and enforce contracts” “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.”). As such, the elements of a § 1981 discrimination claim are the same as those of a Title VII discrimination claim. Summers, 444 F. App'x at 347 (citing Rice- Lamar v. City of Ft. Lauderdale, 232 F.3d 836, 843 n. 11 (11th Cir. 2000)).

         A plaintiff may establish a discrimination claim through the presentation of direct or circumstantial evidence of discrimination. Dixon v. The Hallmark Companies, Inc., 627 F.3d 849, 854 (11th Cir. 2010). Where, as here, the plaintiff relies on circumstantial evidence of discrimination, [7] courts are to apply the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010); see also Turnes v. AmSouth Bank, NA, 36 F.3d 1057, 1060 (11th Cir.1994) (“The McDonnell Douglas scheme for the allocation of burdens and the order of presentation of proof also applies in § 1981 cases involving discriminatory treatment in employment situations.”). Pursuant to that framework, the plaintiff must first establish a prima facie case of discrimination, whereby the plaintiff “must show that (1) []he is a member of a protected class; (2) []he was qualified for the job; (3) []he suffered an adverse employment action; and (4) [his] employer treated similarly situated employees outside the protected class more favorably or, for a termination, was replaced by a person outside the protected class.” Addison v. Florida Dep't of Corr., __ F. App'x __, 2017 WL 1130175, at *2 (11th Cir. 2017) (citing Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999)); see also Alvarez, 610 F.3d at 1264; Burke-Fowler v. Orange Cnty., 447 F.3d 1319, 1323 (11th Cir. 2006). Once a prima facie case is shown, a presumption of unlawful discrimination is created and the burden of production shifts to the defendant to offer a legitimate, non-discriminatory reason for the adverse employment action. Alvarez, 610 F.3d at 1264; Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). Once the defendant proffers such a reason, the burden shifts back to the plaintiff to show that the proffered reason is a mere pretext for unlawful discrimination. Alvarez, 610 F.3d at 1264.

         Additionally, in the Eleventh Circuit, a determination as to whether employees are similarly situated in cases involving allegedly discriminatory discipline requires evaluating “whether the employees [were] involved in or accused of the same or similar conduct and [were] disciplined in different ways.” Burke-Fowler, 447 F.3d at 1323 (internal quotation marks omitted). “The quantity and quality of the comparator's misconduct must be ‘nearly identical' to the plaintiff's misconduct, in order ‘to prevent courts from second-guessing employers' reasonable decisions.” Summers, 444 F.App'x at 347 (quoting Burke-Fowler, 447 F.3d at 1323). In other words, “alleged comparators must be similarly situated in all relevant respects. Otherwise, the alleged preferential treatment towards non-identical comparators does not indicate pretext.” Addison, 2017 WL 1130175, at *4 (quoting Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004)) (internal quotation marks and citation omitted). Importantly, “[i]f a plaintiff fails to show the existence of a similarly situated employee, summary judgment is appropriate where no other evidence of discrimination is present.” Wilson, 376 F.3d at 1092 (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).

         i. Prima Facie Case Assumed

         Defendant argues that Plaintiff fails to show a prima facie case of race discrimination because there is no evidence that Defendant treated similarly situated employees outside his protected class more favorably. See ECF No. [63] at 2-3 (citing Holifield, 115 F.3d at 1562). In the Defendant's view, the two purported comparators relied upon by Plaintiff-Deputy Sheriff Joshua Plant (“Deputy Plant”) and Sergeant Daniel Burrows (“Sergeant Burrows”) (both white)-are not similarly situated. See Id. Defendant further argues that even if Plaintiff could show a prima facie case, Defendant has articulated a legitimate, non-discriminatory reason for Plaintiff's termination, which Plaintiff has failed to demonstrate was merely a pretext. See Id. at 3. The Court agrees with the latter. Thus, Plaintiff's discrimination claim fails even if he has established a prima facie case. See generally Morrison v. City of Bainbridge, GA, 432 F.App'x 877, 881 n.2 (11th Cir. 2011) (explaining that in applying the McDonnell Douglas framework, “when an employer has offered a legitimate, nondiscriminatory reason for an employee's termination, whether a plaintiff made out a prima facie case is almost always irrelevant in considering a motion for summary judgment.”) (citing Brady v. Office of Sergeant at Arms, 520 F.3d 490, 492 (D.C. Cir. 2008)).

         As an initial matter, Plaintiff argues that a prima facie case for race discrimination does not require the existence of a comparator, and not without good reason. In Flowers v. Troup Cty., Ga., Sch. Dist., 803 F.3d 1327, 1336 (11th Cir. 2015), the Eleventh Circuit explained that in race discrimination cases, a plaintiff makes out a prima facie case “when he shows by a preponderance of the evidence (1) that he is a member of a protected racial class, (2) that he was qualified for the position, (3) that he experienced an adverse employment action, and (4) that he was replaced by someone outside of his protected class or received less favorable treatment thana similarly situated person outside of his protected class.” (citing Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003)) (emphasis added). However, two very recent unpublished decisions by the Eleventh Circuit indicate that comparators are a necessary component in this context. See Addison, 2017 WL 1130175, at *2 (“To establish a prima facie case of race [] discrimination a plaintiff must show that . . . [his] employer treated similarly situated employees outside the protected class more favorably or, for termination, was replaced by a person outside the protected class”) (citing Maniccia, 171 F.3d at 1368) (emphasis added); Brooks v. U.S. Dep'tof the Air Force, 2017 WL 1360769, at *1 (11th Cir. 2017) (“To make out a prima facie case [of race discrimination], a plaintiff must demonstrate . . . he was replaced by a person outside his protected class or was treated less favorably than a similarly-situated individual outside his protected class.”) (citing McDonnell Douglas, 411 U.S. at 802) (emphasis added). Nonetheless, in Wilson, the Eleventh Circuit affirmed ...

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