United States District Court, M.D. Florida, Orlando Division
GREGORY A. PRESNELL UNITED STATES DISTRICT JUDGE
matter comes before the Court without a hearing on the Motion
for Summary Judgment (Doc. 25) filed by the Defendant, the
School Board of Brevard County (henceforth, the “School
Board”), the response in opposition (Doc. 31) filed by
the Plaintiff, Lamar Burgess (“Burgess”), and the
reply (Doc. 35) filed by the School Board.
an employment discrimination case. Burgess, who is
African-American, worked for the School Board for 33 years.
Originally hired in the position of Maintenance Worker, he
subsequently held the positions of Pest-Control Technician
and Maintenance Helper. He became an HVAC Mechanic around
2001 and, over time, was promoted from level I to level III
in that position.
described in detail below, beginning in 2012 there were a
number of disagreements involving Burgess and two of his
supervisors, who were white. In August 2013, Burgess was
terminated. He was rehired a few weeks later, but his new job
did not pay as well and required him to travel further to get
to work. He worked in the new position for three years,
retiring in 2016.
filed the instant suit on November 23, 2016. In it, he
asserts the following claims under Title VII: disparate
treatment (Count I); hostile work environment (Count II); and
retaliation (Count III). In counts IV through VI, Burgess
asserts these same claims under the Florida Civil Rights Act
of 1992, Fla. Stat. § 760.01 et seq.
(“FCRA”). By way of the instant motion, the School
Board moves for summary judgment on all claims.
is entitled to summary judgment when the party can show that
there is no genuine issue as to any material fact.
Fed.R.Civ.P. 56(c). Which facts are material depends on the
substantive law applicable to the case. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
2510, 91 L.Ed.2d 202 (1986). The moving party bears the
burden of showing that no genuine issue of material fact
exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). In determining
whether the moving party has satisfied its burden, the court
considers all inferences drawn from the underlying facts in a
light most favorable to the party opposing the motion, and
resolves all reasonable doubts against the moving party.
Anderson, 477 U.S. at 255, 106 S.Ct. at 2513.
party moving for summary judgment points out an absence of
evidence on a dispositive issue for which the non-moving
party bears the burden of proof at trial, the nonmoving party
must “go beyond the pleadings and by [his] own
affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific
facts showing that there is a genuine issue for trial.”
Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553.
Thereafter, summary judgment is mandated against the
nonmoving party who fails to make a showing sufficient to
establish a genuine issue of fact for trial. Id. The
party opposing a motion for summary judgment must rely on
more than conclusory statements or allegations unsupported by
facts. Evers v. Gen. Motors Corp., 770 F.2d 984, 986
(11th Cir. 1985) (“conclusory allegations without
specific supporting facts have no probative value”).
Court must consider all inferences drawn from the underlying
facts in a light most favorable to the party opposing the
motion, and resolve all reasonable doubts against the moving
party. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513.
The Court is not, however, required to accept all of the
non-movant's factual characterizations and legal
arguments. Beal v. Paramount Pictures Corp., 20 F.3d
454, 458-59 (11th Cir 1994).
Title VII Disparate Treatment
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., as amended, prohibits discrimination on the
basis of race, color, religion, sex, or national origin. It
prohibits both intentional discrimination - known as
“disparate treatment” - as well as some practices
that are not intended to discriminate but in fact have a
disproportionately adverse effect on minorities - which is
referred to as “disparate impact”.
treatment presents “the most easily understood type of
discrimination.” Teamsters v. United States,
431 U.S. 324, 335, n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396
(1977). Disparate treatment cases occur where an employer has
“treated [a] particular person less favorably than
others because of” a protected trait. Watson v.
Fort Worth Bank & Trust, 487 U.S. 977, 985-986, 108
S.Ct. 2777, 101 L.Ed.2d 827 (1988). A plaintiff in a
disparate treatment case must establish that the defendant
had “a discriminatory intent or motive” for
taking a job-related action. Id. at 986, 108 S.Ct.
plaintiff in a Title VII case may prove intentional
discrimination through direct evidence, circumstantial
evidence, or through statistical proof. Rioux v. City of
Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008).
Where the employee attempts to prove discriminatory intent by
way of circumstantial evidence, the claims are subject to the
methods of proof set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973) and Texas Dep't. of Community Affairs v.
Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207
(1981). Under this framework, to establish a prima
facie case of race-based disparate treatment, a
plaintiff must show that: (1) he is a member of a protected
class; (2) he was subjected to adverse employment action; (3)
his employer treated similarly situated employees outside the
class more favorably; and (4) he was qualified to do his job.
Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.
1999). To be “similarly situated” to the
plaintiff, another employee - referred to as a
“comparator” - must be similarly situated in
“all relevant respects.” Holifield v.
Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). In cases
involving discriminatory discipline, the court must ask
“whether the employees are involved in or accused of
the same or similar conduct and are disciplined in different
ways.” Burke-Fowler v. Orange County, Fla.,
447 F.3d 1319, 1323 (11th Cir. 2006) (internal quotation
marks omitted). The quantity and quality of the
comparator's misconduct, moreover, must be “nearly
identical” to that of the plaintiff “to prevent
courts from second-guessing employers' reasonable
prima facie case is established, the burden shifts
to the employer to rebut the resulting presumption of
discrimination by producing evidence that it acted for a
legitimate non- discriminatory reason. McDonnell
Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. The
defendant need not persuade the court that it was actually
motivated by the proffered reason, but need only present
evidence raising a genuine issue of fact as to whether it
discriminated against the plaintiff. Burdine, 450
U.S. at 257, 101 S.Ct. at 1095-96.
four McDonnell Douglas elements are proven but the
employer articulates a legitimate, nondiscriminatory reason
for its actions, the plaintiff must then show that the
employer's alleged reason is a pretext for illegal
discrimination. McDonnell Douglas, 411 U.S. at
802-04, 93 S.Ct. at 1824-25. To prove such a pretext, the
plaintiff must “cast sufficient doubt on the
defendant's proffered nondiscriminatory reasons to permit
a reasonable factfinder to conclude that the employer's
proffered legitimate reasons were not what actually motivated
its conduct.” See Combs v. Plantation
Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (internal
quotation marks omitted). A legitimate, nondiscriminatory
reason proffered by the employer is not a pretext for
prohibited conduct unless the plaintiff shows that the reason
is false and that the real reason is impermissible
discrimination. St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 515-16, 113 S.Ct. 2742, 2751-52, 125 L.Ed.2d
407 (1993). Further, an employer's deviation from its
company policy, standing alone, does not demonstrate
discriminatory animus. Mitchell v. USBI Co., 186
F.3d 1352, 1355-56 (11th Cir. 1999).
Hostile Work Environment
establish a hostile work environment claim, an employee must
prove that the workplace “is permeated with
discriminatory intimidation, ridicule, and insult, that is
sufficiently severe or pervasive to alter the conditions of
the victim's employment and create an abusive working
environment. Harris v. Forklift Sys., Inc., 510 U.S.
17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993). Where an
employee bases his hostile work environment claim on race, he
must prove: (1) that he is a member of a protected class; (2)
that he was subjected to unwelcome racial harassment; (3)
that the harassment was based on his race; (4) that the
harassment was severe or pervasive enough to alter the terms
and conditions of his employment and create a
discriminatorily abusive working environment; and (5) that
the employer is responsible for the environment. Adams v.
Austal, U.S.A., L.L.C., 754 F.3d 1240, 1248-49 (11th
Cir. 2014) (citing Miller v. Kenworth of Dothan,
Inc., 277 F.3d 1269, 1275 (11th Cir. 2002)).
The fourth element requires a plaintiff to prove that the
work environment is both subjectively and objectively
hostile. Mendoza v. Borden, Inc., 195 F.3d 1238,
1246 (11th Cir.1999). “The employee must
‘subjectively perceive' the harassment as
sufficiently severe and pervasive to alter the terms or
conditions of employment, ... [and] ‘the objective
severity of harassment should be judged from the perspective
of a reasonable person in the plaintiff's position,
considering all the circumstances.'” Id.
(quoting Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 81, 118 S.Ct. 998, 1003, 140 L.Ed.2d 201
(1998)). The fifth element requires a plaintiff to prove that
the employer is responsible for the hostile work environment
because of actions taken by either a supervisor or a
coworker. Miller, 277 F.3d at 1278.
Adams, 754 F.3d at 1249.
evaluating the objective severity of the harassment, courts
within this Circuit must consider, among other factors: (1)
the frequency of the conduct; (2) the severity of the
conduct; (3) whether the conduct is physically threatening or
humiliating, or a mere offensive utterance; and (4) whether
the conduct unreasonably interferes with the employee's
job performance. Miller, 277 F.3d at 1276 (citing
Allen v. Tyson Foods, 121 F.3d 642, 647 (11th Cir.
Our precedents direct district “courts [to] examine the
conduct in context, not as isolated acts, and determine under
the totality of the circumstances whether the harassing
conduct is sufficiently severe or pervasive to alter the
terms or conditions of the plaintiff's employment and
create a hostile or abusive working environment.”
Mendoza, 195 F.3d at 1246. The totality of a
plaintiff's workplace circumstances does not include
other employees' experiences of which the plaintiff is
unaware. Courts conduct the objective assessment from the
perspective of a reasonable person in the plaintiff's
position, knowing what the plaintiff knew. Id. A
reasonable person in the plaintiff's position is not one
who knows what the plaintiff learned only after her
employment ended or what discovery later revealed.
Adams, 754 F.3d at 1250.