United States District Court, S.D. Florida
L. ROSENBERG, UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court on Defendant, Sheriff Paul
Blackman's Motion for Summary Judgment [D.E. 46], filed
September 5, 2017 (the “Motion”). Plaintiff,
Hiram Obregon filed a Memorandum of Law in Opposition to
Defendant's Motion for Summary Judgment [D.E. 57] on
October 3, 2017 (the “Response”). Defendant filed
a Reply [D.E. 58] on October 10, 2017. The Court has
carefully considered the Complaint [D.E. 1], the written
submissions, the factual record, and applicable law.
Hiram Obregon, a Hispanic male, was hired as a Sheriff's
Deputy with the Highlands County Sheriff's Office (the
“Sheriff's Office”) on October 3, 2012.
(Compl. ¶ 11; Obregon Dep. 17:4-17:7). As part of his
employment, Plaintiff was assigned a patrol vehicle. (Obregon
Depo. 23:1-23:9). Plaintiff's vehicle contained Mobile
Video Recording (“MVR”) equipment, which
automatically activates and creates a video recording when
the vehicle in which it is installed exceeds a “speed
trigger” of 90 MPH. (Id. 52:4-52:25). On April
28, 2013, while conducting a routine review of MVR in-car
videos, Lieutenant Keith Starling observed that Plaintiff had
a speed-triggered MVR activation. (Def. Facts Ex. 1 - Part 2
[D.E. 47-2] at 1, 37;Def. Facts Ex. 2 [D.E. 47-3] ¶ 6).
Under the Sheriff's Office policy, police vehicles are
prohibited from exceeding posted speed limits unless the
officer is in a “Code Three” emergency situation.
(Def. Facts Ex. 1 - Part 2 [D.E. 47-2] at 30).
April 29, 2013, during his scheduled day off, Plaintiff
responded to a call from Lieutenant Gus Garcia and agreed to
transport a 14-year old minor from Lake Placid, Florida, to
Tampa, Florida. (Id. at 37-38). Plaintiff picked up
the minor in his regular patrol vehicle. (Obregon Dep.
62:6-62:11). During the course of Plaintiff's transport
of the minor, an off-duty officer of the Tampa Police force,
Sergeant P.J. Gray, contacted the Sheriff's Office to
report Plaintiff's driving, stating he had witnessed
Plaintiff's vehicle driving “in excess of 70-75 mph
darting in and out of rush hour traffic, ” and
reporting at one point witnessing the vehicle “[drive]
on the shoulder and then [jump] back into the lane of traffic
cutting off vehicles.” (Def. Facts Ex. 1 - Part 2 at
21-22, 38). Due to its driving pattern, Sergeant Gray
suspected Plaintiff's vehicle may have been stolen.
(Id. at 21-22, 38). Approximately 30 minutes after
Sergeant Gray's call, an “unknown male”
contacted the Sheriff's Office and identified
Plaintiff's vehicle driving “irresponsibly, ”
namely, “driving on top of people . . . swerving in and
out . . . [and] not using his signal.” (Id. at
1, 2013, in response to the two phone calls received on April
29, Lieutenant Starling completed a more fulsome review of
Plaintiff's MVR videos, discovering a total of 11
“speed trigger related videos.” (Id. 1,
40; Def. Facts Ex. 2 ¶ 9). Based on the two phone calls
and these 11 videos, Lieutenant Starling suggested further
review of Plaintiff's actions. (Def. Facts Ex. 1 - Part 2
at 1). On May 1, 2013, Major David Paeplow, who was
Plaintiff's supervisor at all times relevant to this
lawsuit, informed Plaintiff he was being “temporarily
assigned to the Court Related Services pending the outcome of
an investigation regarding General Order violations.”
(Id. at 2; Compl. ¶ 14).
Darin Hood conducted an internal investigation, which
included an interview of the Plaintiff; on June 4, 2013,
Lieutenant Hood submitted an Internal Investigation Report
(the “Report”). (Def. Facts Ex. 5 [D.E. 47-6]
¶¶ 2-3; Def. Facts Ex. 1 - Part 2 at 37-53). The
Findings of Fact in the Report describe: Nine separate
instances of Plaintiff driving in excess of 90 MPH without
emergency lights or siren in non-Code Three emergency
situations (Def. Facts Ex. 1 - Part 2 at 6-28,
44-52); Plaintiff's deactivation of the MVR
equipment during each of these nine instances without
submission of a reason for deactivation (Id.); the
“unprofessional” manner in which Plaintiff drove
on August 29 while transporting the minor, as witnessed by
Sergeant Gray (Id. at 22, 51); and an instance of
Plaintiff “cursing” in front of said minor during
the transport. (Id. at 52).
Paeplow reviewed the Report and on June 19, 2013, submitted
to Plaintiff a Notice of Proposed Disciplinary Action,
proposing Plaintiff's dismissal from the Sheriff's
Office- citing violations of Sheriff's Office General
Orders #2216.00(I.E.), #420.00(IV.B.), and
#1061.00(C.1.). (Id. at 6, 37, 54; Def. Facts Ex.
2 ¶ 12). The Notice of Proposed Disciplinary Action also
notified Plaintiff of a Pre-Disciplinary Hearing, scheduled
for June 26, 2013, during which he would be given the
opportunity to address the findings of the internal
investigation and the proposed disciplinary action. (Def.
Facts Ex. 1 - Part 2 at 54). Plaintiff attended the
Pre-Disciplinary Hearing as scheduled. (Obregon Dep.
28, 2013, Major Paeplow issued a Memorandum, adopting the
Findings of Fact from the Report, sustaining his previously
cited General Order violations, and recommending
Plaintiff's dismissal. (Def. Facts Ex. 1 - Part 2 at 56;
Def. Facts Ex. 6 [D.E. 47-7]). On July 3, 2013, Sheriff Susan
Benton approved the recommended discipline, and Plaintiff was
dismissed from his position with the Sheriff's Office.
(Def. Facts Ex. 1 - Part 2 at 57).
his termination, Plaintiff filed a formal charge with the
U.S. Equal Employment Opportunity Commission
(“EEOC”), claiming he was fired from the
Sheriff's Office because of his national origin, in
violation of Title VII of the Civil Rights Act of 1964. (Def.
Facts Ex. 1 - Part 2 at 76; Compl. ¶ 6). The EEOC issued
to Plaintiff a Notice of Right to Sue Letter, giving him the
option of filing a civil action in an appropriate United
States District Court. (Compl. ¶ 7). As a result, on
October 28, 2016, Plaintiff filed the Complaint, which
alleges race discrimination in violation of Title
VII-specifically that the motivating factor in the decision
to fire him was his Hispanic race. (Compl. ¶ 23).
judgment is rendered if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material facts and the
movant is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(a), (c). “A factual
dispute is genuine ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.'” Channa Imps., Inc. v. Hybur,
Ltd., No. 07-CV-21516, 2008 WL 2914977, at *2 (S.D. Fla.
July 25, 2008) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). An issue of fact is
material if “it would affect the outcome of the suit
under the governing law . . . .” Miccosukee Tribe
of Indians of Fla. v. United States, 516 F.3d 1235, 1243
(11th Cir. 2008). At the summary judgment stage, the moving
party has the burden of proving the absence of a genuine
dispute of material fact, and all factual inferences are
drawn in favor of the nonmoving party. Allen v. Tyson
Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).
VII of the Civil Rights Act of 1964 provides that it is
unlawful for an employer “to discharge any individual .
. . because of such individual's race, color, religion,
sex, or national origin.” 42 U.S.C. §
2000e-2(a)(1). Where, as here, there is no direct evidence of
discrimination, a plaintiff may make his claim through
circumstantial evidence, using the McDonnell Douglas
burden-shifting framework. McCann v. Tillman, 526
F.3d 1370, 1373 (11th Cir. 2008); McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973). Under this
framework, the plaintiff must carry the initial burden of
establishing a prima facie case of racial discrimination, by
a preponderance of the evidence. Id.; Texas
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252
(1981). The proof required to establish a prima facie case
may vary depending on the specific facts of the case (for
example, whether it is a case of discriminatory termination
versus a case of failure to hire). See McDonnell
Douglas, 411 U.S. at 802 n.13 (“The facts
necessarily will vary in Title VII cases, and the
specification . . . of the prima facie proof required . . .
is not necessarily applicable in every respect to differing
factual situations.”); Rioux v. City of Atlanta,
Ga., 520 F.3d 1269, 1275 (11th Cir. 2008) (“More
than one formulation of the elements of a prima facie case
exist.”). Ultimately, to establish his prima facie
case, Plaintiff must prove by a preponderance of the evidence
that he was discharged from the position for which he was
qualified under circumstances which give rise to a
presumption of unlawful discrimination. See Walker v.
Mortham, 158 F.3d 1177, 1184 n.10 (11th Cir. 1998)
(explaining the prima facie case gives rise to a presumption,
and not an inference, of intentional discrimination);
Burdine, 450 U.S. at 254 (“Establishment of
the prima facie case in effect creates a presumption that the
employer unlawfully discriminated against the
a prima facie case causes the burden to shift to the employer
to articulate a legitimate, nondiscriminatory reason for the
employment action. McDonnell Douglas, 411 U.S. at
802; Rioux, 520 F.3d at 1275 (11th Cir. 2008). If
the employer articulates such a reason, the presumption of
discrimination is rebutted, and the burden shifts back to the
plaintiff to produce sufficient evidence showing the
proffered reason is a pretext for unlawful discrimination.
Rioux, 520 F.3d at 1275.
Prima Facie Case
plaintiff may establish a prima facie case of discrimination
under Title VII through showing that: (1) he is a member of a
protected class; (2) he was subjected to an adverse
employment action; (3) his employer treated similarly
situated employees outside of his protected class more
favorably than he was treated; and (4) he was qualified to do
the job. Burke-Fowler v. Orange Cty.,
Fla., 447 F.3d 1319, 1323 (11th Cir. 2006) (citing
E.E.O.C. v. Joe's Stone Crab, Inc., 220 F.3d
1263, 1286 (11th Cir. 2000)); Archie v. Frank Cockrell
Body Shop, Inc., 581 Fed.Appx. 795, 798 (11th Cir.
2014). In the Motion, Defendant argues Plaintiff has failed
to establish a prima facie case of discrimination by failing
to satisfy the third prong of the Burke-Fowler
test-the “similarly situated” prong. (Motion
order to satisfy the “similarly situated” prong,
Plaintiff must identify a comparator employee outside his
protected class who is similarly situated “in all
relevant aspects.” Wilson v. B/E Aerospace,
Inc., 376 F.3d 1079, 1091 (11th Cir. 2004). In his
pleadings, Plaintiff identifies one comparator, Deputy Cory
Tomblin, a white non-Hispanic officer whom he alleges
received less punishment for substantially similar conduct.
(Compl. ¶ 16; Resp. 11-12; Def. Facts [D.E. 47] ¶
night of October 27, 20012, while responding to a Code Three
emergency call regarding a home invasion, Deputy Tomblin
struck a pedestrian, who died as a result. (Def. Facts Ex. 9
[D.E. 47-10] at 1; Pl. Facts Ex. 1 [D.E. 56-1] at 6-7). In
response, Sheriff Benton requested an administrative review
and internal investigation regarding Deputy Tomblin's
actions, which were both completed by Lieutenant Kenny
Johnson. (Def. Facts Ex. 9 at 2; Def. Facts Ex. 10 [D.E.
47-11] ¶ 4). The internal investigation revealed: Deputy
Tomblin initially responded to the call in Emergency Mode
while within Lake Placid city limits, activating his
emergency lights and siren, but deactivated this emergency
equipment upon exiting the city (Def. Facts Ex. 9 at 3);
Deputy Tomblin's vehicle struck the pedestrian while its
lights and siren were deactivated (Id. at 4); a
subsequent Florida Highway Patrol Traffic Homicide
Investigation estimated Deputy Tomblin's speed at 84.7
MPH (Id.); and, although the call was a Code Three
emergency, Deputy Tomblin admitted to not getting through to
nor receiving permission from his immediate supervisor to
respond in Emergency Mode, in violation of Sheriff's
Office policy. (Id.; Def. Facts Ex. 1 - Part 2 at
31; Pl. Facts Ex. 2 [D.E. 56-2] at 18). Deputy Tomblin was
ultimately found to have violated Sheriff's Office
General Orders #2216.00(I.F.2.) and #2216.00(I.F.6.),
was given a formal reprimand with three days suspension
without pay, one year Corrective Action probation, and
remedial training of General Order 2216.00. (Def. Facts Ex.
12 [D.E. 47-13] at 1; Def. Facts Ex. 13 [D.E. 47-14]).
determining whether employees are similarly situated for
purposes of establishing a prima facie case, it is necessary
to consider whether the employees are involved in or accused
of the same or similar conduct and are disciplined in
different ways.” Maniccia v. Brown, 171 F.3d
1364, 1368 (11th Cir. 1999) (quoting Jones v. Bessemer
Carraway Med. Ctr., 137 F.3d 1306, 1311 (11th Cir.
1998), opinion modified by151 F.3d 1321 (11th Cir.
1998)) (internal quotation marks omitted). Further,
“[w]e require that the quantity and quality of the
comparator's misconduct be nearly identical to prevent
courts from second-guessing employers' reasonable
decisions and confusing apples with oranges.”
Id. “Misconduct merely ‘similar' to
the misconduct of ...