United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Trees, Inc.'s
Motion for Summary Judgment (Doc. 56) filed on March
5, 2018. Plaintiff Alexis Soto Fernandez filed a Response in
Opposition to Trees' Motion for Summary Judgment
(Doc. 59) on March 19, 2018. After the Court granted
leave to both parties, Trees filed a Reply to Fernandez's
Response in Opposition (Doc. 68) on April 9, 2018,
and Fernandez filed a Sur-Reply (Doc. 72) on April
16, 2018. This matter is now ripe for review.
an employment discrimination and harassment suit based on
Fernandez's Cuban national origin. (Doc. 1). Trees hired
Fernandez as a crew foreperson at its tree trimming company
from July 2015 to September 2016. (Docs. 56 at 3; 59 at 2).
He was responsible for leading a small crew, clearing debris,
and operating machinery. (Docs. 56 at 3; 59 at 2). Trees is
partly managed by general foreperson, Joseph Soto, and his
son, Adam Soto. (Docs. 56 at 4; 59 at 2). Adam Soto was
Fernandez's direct supervisor. (Docs. 56 at 4; 59 at 2).
Although disputed, Fernandez asserts that Joseph Soto and
Adam Soto both decided his regular and overtime shifts. (Doc.
59 at 5). Fernandez maintains, but Trees denies, that he was
guaranteed twenty hours of overtime each week. (Doc. 57-1 at
claims driving this suit occurred during a two-month period.
(Docs. 56 at 4; 59 at 2; 57-1 at 64:10-25; 65:1-25; 66:1-7).
Fernandez's work life at Trees was uneventful until a
physical fight broke out between Adam Soto and another Cuban
during his last month of employment. (Docs. 56 at 4; 59 at 2;
57-1 at 66:14-20). Fernandez alleges that after the fight,
Adam Soto showed hostility towards Cuban employees like him
and made derogatory comments such as “fucking Cubans,
” “shitty Cubans, ” and “new policy
in the company[:] no more Cuban people[.]” (Docs. 56 at
5; 59 at 2-3; 57-1 at 65:8-16). Adam Soto also allegedly
pressured Fernandez to complete unrealistic work goals with
old tools and mocked him if he complained. (Doc. 59-1 at
offers a different narrative. It denies that Adam Soto showed
hostility toward Cuban employees. (Doc. 59 at 26-27). And it
maintains that Fernandez had a history of poor work
performance. (Docs. 56 at 23; 57-5 at 3-4). This poor
performance included Fernandez crashing his work truck and
sitting/sleeping on the job. (Docs. 56 at 23; 57-5 at 3-4).
As a result, Trees maintains that Joseph Soto told Fernandez
that he would no longer receive overtime. (Docs. 56 at 24-25;
57-5 at 4). Fernandez denies these accusations. (Doc. 57-1 at
the parties agree on a pivotal incident in August 2016:
Fernandez's suicide attempt. (Docs. 56 at 9; 59 at 6).
While on work property and during work hours, Fernandez
doused himself in gasoline and reached for his lighter.
(Docs. 56 at 9; 59 at 6). A fellow co-worker thwarted
Fernandez's suicide attempt by tackling him and removing
the lighter from his hand before he ignited it. (Docs. 56 at
9; 59 at 6). Although it is disputed whether Fernandez
returned to work after his suicide attempt (Docs. 56 at 10;
59 at 6), there is no dispute that Fernandez ultimately
resigned from Trees to work for another tree trimming
company. (Docs. 56 at 10-11; 59 at 6). Trees maintains it
fired Fernandez because of his suicide attempt that
endangered himself and his coworkers. (Doc. 56 at 19).
sues Trees for hostile work environment and national origin
discrimination under Title VII of the Civil Rights Act of
1964 (“Title VII”) and the Florida Civil Rights
Act (“FCRA”). (Doc. 1). Trees now moves
for summary judgment (Doc. 56) on both
claims. For the reasons set forth below,
Trees' Motion is granted.
judgment is proper only if there are no disputed issues of
material fact and the moving party is entitled to judgment as
a matter of law. See Fed. R. Civ. P. 56(a); see
also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). The Court must view the evidence and the
inferences that may be reasonably drawn from the evidence in
the light most favorable to the nonmoving party. See
Burton v. City of Belle Glade, 178 F.3d 1175, 1187
(11th Cir. 1999) (citation omitted).
moving party bears the burden of showing that there is no
genuine issue of material fact and that it is entitled to
judgment as a matter of law. See O'Ferrell
v. United States, 253 F.3d 1257, 1265 (11th Cir. 2001).
When opposing a motion for summary judgment, the nonmoving
party must demonstrate the existence of specific facts in the
record that create a genuine issue for trial. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986). A party opposing a properly supported motion for
summary judgment may not rest on mere allegations or denials
and “must do more than simply show that there is some
metaphysical doubt as to the material facts.”
Matushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986) (citation omitted). Failure to show
sufficient evidence of any essential element is fatal to the
claim and the court should grant summary judgment.
See Celotex, 477 U.S. at 322-23.
Hostile Work Environment
claims he suffered harassment in a hostile work environment
in violation of Title VII and the FCRA. (Doc. 1 at
4, 6). A hostile work environment claim
requires proof of a workplace “permeated with
discriminatory intimidation, ridicule, and insult, that is
sufficiently severe or pervasive to alter the terms of the
victim's employment and create an abusive working
environment.” Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993) (internal quotations and citations
omitted). To establish such a claim, a plaintiff must show:
(1) that he belongs to a protected group; (2) that he has
been subject to unwelcome harassment; (3) that the harassment
must have been based on a protected characteristic of the
employee, such as national origin; (4) that the harassment
was sufficiently severe or pervasive to alter the terms and
conditions of employment and create a discriminatorily
abusive working environment; and (5) that the employer is
responsible for such environment under either a theory of
vicarious or of direct liability.
Miller v. Kenworth of Dothan, Inc.,
277 F.3d 1269,
1275 (11th Cir. 2002) (citation omitted). Only the fourth
element is at issue here because Trees argues that Adam
Soto's conduct was neither ...