United States District Court, N.D. Florida, Gainesville Division
REPORT AND RECOMMENDATION
R. JONES UNITED STATES MAGISTRATE JUDGE
matter is before the Court on ECF No. 63, Defendant's
Motion for Summary Judgment. Plaintiff has filed a response
and amended response in opposition (ECF Nos. 72, 80), and
Defendant has filed a reply (ECF No. 73). For the reasons
explained below, it is respectfully recommended that
Defendant's motion be denied.
brings claims against the Department of Veterans Affairs (the
“VA”) under Title VII of the Civil Rights Act, 42
U.S.C. § 2000e, et seq. (“Title
VII”). Plaintiff was initially represented by counsel
in this case, but is now proceeding pro se.
See ECF Nos. 1, 36. Plaintiff was employed as a
Telemetry Technician at the Malcolm Randall Veterans
Administration Medical Center. Plaintiff's First Amended
Complaint, ECF No. 21, alleged that Defendant created a
hostile work environment in violation of Title VII and that
she was wrongfully disciplined and ultimately terminated in
retaliation for EEO activity. ECF No. 21 at 3-4. Defendant
moved to dismiss the First Amended Complaint, arguing that
Plaintiff's hostile work environment claim failed to
state a claim for relief, and her retaliation claim should be
dismissed for failure to exhaust administrative remedies
because Plaintiff had an appeal of her termination pending
before the Merit Systems Protection Board. ECF No. 22. The
Court dismissed Plaintiff's retaliation and termination
claims for failure to exhaust administrative remedies. The
Court dismissed Plaintiff's hostile work environment
claim with leave to file a Second Amended Complaint. ECF No.
Second Amended Complaint clarified Plaintiff's hostile
work environment claims. Plaintiff, who is African-American,
alleges that from August 2012 through August 2015 her
coworkers, most of whom were white, subjected Plaintiff to
race-based harassment. Plaintiff contends that in December
2013 a white coworker “likened Plaintiff to less than a
monkey, ” while complaining that she was not properly
training another worker. The coworker stated that “even
a monkey can do this job.” ECF No. 40 at 3. Plaintiff
complained to the coworker, and the next day he greeted her
with the taunt “what's up monkey?” Plaintiff
complained to her nurse manager, but she alleges that no
action was taken. The coworker subsequently told Plaintiff
that “it does no justice to complain, ” and again
reiterated that a monkey could do Plaintiff's job.
alleges that she was subjected to insults regarding her
ethnic dialect. Id. at 4. She alleges that
“[t]he notion that Black people are unclean was a
frequent theme of the speech and behavior of Plaintiff's
white coworkers.” Plaintiff alleges that at least three
times per day, from November 2014 to August 2015, five of her
white coworkers would disinfect items that she had touched as
soon as she left her workstation. The white coworkers did not
similarly clean or disinfect items that had been touched by
each other. Plaintiff alleges that during 2014 and 2015, on
at least 60 occasions, two of her white coworkers, in her
presence, stereotyped African medical staff as
“stinking” and not bathing. Id.
further alleges that because of her race and her
“Louisiana roots, ” coworkers stereotyped her as
being a practitioner of voodoo. In May 2014, a coworker
loudly called her a “Louisiana voodoo ass.”
Id. Plaintiff claims that on at least five occasions
in 2015 one of the white coworkers, who habitually
disinfected items she had touched, taunted Plaintiff because
of her race with verbiage about hexes and voodoo dolls.
Plaintiff alleges that she had been warned about that
coworker's “skinhead” background.
Id. Plaintiff alleges that she complained to
management but no remedial action was taken. Id. at
Court previously denied Defendant's motion to dismiss the
Second Amended Complaint, in which Defendant again argued
that Plaintiff failed to state a hostile work environment
claim. ECF. No. 51. Defendant now contends that it is
entitled to summary judgment because Plaintiff cannot show
that she was subjected to harassment based upon her race, or
that the harassment was sufficiently severe or pervasive to
alter the terms and conditions of employment and create a
discriminatorily abusive working environment. ECF No. 63.
STANDARD OF REVIEW
to Federal Rule of Civil Procedure 56(a), the entry of
summary judgment is appropriate only when the Court is
satisfied that “there is no genuine dispute as to any
material fact and that the movant is entitled to a judgment
as a matter of law.” In applying this standard, the
Court must examine the pleadings, depositions, answers to
interrogatories, and admissions on file, together with any
affidavits and other evidence in the record "in the
light most favorable to the non-moving party."
Samples on Behalf of Samples v. Atlanta, 846 F.2d
1328, 1330 (11th Cir. 1988). “In determining whether
summary judgment is appropriate, [the Court is] required to
draw all reasonable inferences in favor of the non-moving
party, not all possible inferences.” Horn
v. United Parcel Services, Inc. 433 Fed.Appx. 788, 796
(11th Cir. 2011) (emphasis added).
Supreme Court held in Celotex Corp. v. Catrett, 477
U.S. 317 (1986), the moving party bears the initial burden of
establishing the nonexistence of a triable issue of fact. If
the movant is successful on this score, the burden of
production shifts to the non-moving party who must then come
forward with “sufficient evidence of every element that
he or she must prove.” Rollins v. Techsouth,
833 F.2d 1525, 1528 (11th Cir. 1987). The non-moving party
may not simply rest on the pleadings, but must use
affidavits, depositions, answers to interrogatories, or other
admissible evidence to demonstrate that a material fact issue
remains to be tried.
Eleventh Circuit has noted that:
It is well settled that “after adequate time for
discovery and upon motion, [summary judgment is appropriate]
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). Accordingly, in response to a motion for
summary judgment, a nonmoving-plaintiff must present evidence
in support of his allegations sufficient to raise a genuine
issue of material fact regarding each element of his claim.
As established in Celotex, it is not necessary for
the party moving for summary judgment to introduce any
evidence at all in order to prevail on his motion. Rather, in
cases in which the nonmoving party will bear the burden of
proof at trial, the movant can seek summary judgment by
establishing that the opposing party has insufficient
evidence to prevail as a matter of law, thereby forcing the
opposing party to come forward with some evidence or risk
having judgment entered against him. Id. Where the
nonmoving party fails to present such evidence, “there
can be ‘no genuine issue as to any material fact,'
since a complete failure of proof concerning an essential
element of the nonmoving party's case necessarily renders
all other facts immaterial.” Id.
Maxi-Taxi of Fla., Inc. v. Lee County Port Auth.,
301 Fed. App'x 881, 885 (11th Cir. 2008).
Where the nonmoving party bears the burden of proof, he must
offer more than a mere “scintilla of evidence” in
support of his position. Ande ...