United States District Court, M.D. Florida, Jacksonville Division
Morales Howard United Slates District Judge.
CAUSE is before the Court on Defendant Clara White
Mission, Inc.’s (CWM) Motion to Dismiss
Plaintiff’s Second Amended Complaint (Doc. 23, Motion
to Dismiss), filed November 1, 2018, and CWM’s Motion
for Summary Judgment (Doc. 26, Motion for Summary Judgment),
filed July 31, 2019 (collectively, Motions). In the Motions,
CWM seeks dismissal of, or alternatively, summary judgment on
the claims in pro se Plaintiff Erwin Maiten’s
Second Amended Complaint and Demand for Jury Trial (Doc. 21,
SA Complaint), filed October 18, 2018. Since Maiten is
appearing pro se, the Court advised him of the
provisions of Rule 56, Federal Rules of Civil Procedure
(Rule(s)), and gave him an opportunity to respond to the
CWM’s Motion. See Summary Judgment Notice
(Doc. 27) (setting forth the provisions of Rule 56), filed
August 2, 2019. Maiten has filed responses to the Motion to
Dismiss, see Doc. 24 (Response to Motion to
Dismiss), and the Motion for Summary Judgment, see
Doc. 28 (Response to Motion for Summary
Judgment). Therefore, the Motions are ripe for
review. For the reasons set forth below, the Court finds that
CWM is entitled to summary judgment, and therefore, the Court
will deny the Motion to Dismiss as moot. See Abdullah
City of Jacksonville, 242 Fed.Appx. 661, 662 (11th Cir.
2007) (affirming the denial of a “defendants’
motion to dismiss as moot when [the district court] granted
their motion for summary judgment.”).
SUMMARY JUDGMENT STANDARD
instructs that “[t]he court shall grant 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.” Rule 56(a). The record to
be considered on a motion for summary judgment may include
“depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”
Rule 56(c)(1)(A). An issue is genuine when the evidence is
such that a reasonable jury could return a verdict in favor
of the nonmovant. Mize v. Jefferson City Bd. of
Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting
Hairston v. Gainesville Sun Publ’g Co., 9 F.3d
913, 919 (11th Cir. 1993)). “[A] mere scintilla of
evidence in support of the non-moving party’s position
is insufficient to defeat a motion for summary
judgment.” Kesinger ex rel. Estate of Kesinger v.
Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
party seeking summary judgment bears the initial burden of
demonstrating to the court, by reference to the record, that
there are no genuine issues of material fact to be determined
at trial. See Clark v. Coats & Clark, Inc., 929
F.2d 604, 608 (11th Cir. 1991). “When the non-moving
party bears the burden of proof on an issue at trial, the
moving party need not ‘support its motion with
affidavits or other similar material negating the
opponent’s claim, ’ Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91
L.Ed.2d 265 (1986), in order to discharge this initial
responsibility.” Gonzalez v. Lee Cty. Hous.
Auth., 161 F.3d 1290, 1294 (11th Cir. 1998). Instead,
the moving party simply may demonstrate “that there is
an absence of evidence to support the nonmoving party’s
a moving party has discharged its burden, the non-moving
party must then go beyond the pleadings, and by its own
affidavits, or by depositions, answers to interrogatories,
and admissions on file, designate specific facts showing that
there is a genuine issue for trial.” Jeffery v.
Sarasota White Sox, Inc., 64 F.3d 590, 593–94
(11th Cir. 1995) (internal citations and quotation marks
omitted). Substantive law determines the materiality of
facts, and “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”
Anderson, 477 U.S. at 248. In determining whether
summary judgment is appropriate, a court “must view all
evidence and make all reasonable inferences in favor of the
party opposing summary judgment.” Haves v. City of
Miami, 52 F.3d 918, 921 (11th Cir. 1995) (citing
Dibrell Bros. Int'l, S.A. v. Banca Nazionale Del
Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)).
course, “pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys and will,
therefore, be liberally construed.” Tannenbaum v.
United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
However, “a pro se litigant does not escape the
essential burden under summary judgment standards of
establishing that there is a genuine issue as to a fact
material to his case in order to avert summary
judgment.” Brown v. Crawford, 906 F.2d 667,
670 (11th Cir. 1990). Although courts show leniency to
pro se litigants, courts “will not serve as de
facto counsel or ‘rewrite an otherwise deficient
pleading in order to sustain an action.’”
Nalls v. Coleman Low Fed. Inst., 307 Fed.Appx. 296,
298 (11th Cir. 2009) (quoting GJR Invs., Inc. v. Cnty. of
Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998)).
began working for CWM in 2003. Employment Records at 26. In
late July 2017, CWM terminated him from his position.
Dismissal Letter at 2. Maiten was fifty-seven years old at
the time. EEOC Documentation at 3. In this action, Maiten
alleges that CWM discriminated against him on the basis of a
disability and his age, and also that it retaliated against
him in violation of Title VII of the Civil Rights Act of
“has served the Jacksonville[, Florida, ] community
since 1904 . . . as a service center for the homeless and
disadvantaged persons . . . . [CWM serves] approximately
400-500 men, women, and children in need, daily.”
Employee Manual at 6. As explained by Ju’Coby A.
Pittman, President and CEO of CWM, “[g]rant funds are
very important to the financial stability of CWM. Passing
inspections by agencies such as the Department of Veterans
Affairs [(VA)] is very important to maintaining access to
grant funds.” Pittman Declaration at ¶¶ 1,
Maiten was first employed at CWM in 2003, he served as a
part-time front desk security assistant. Employment Records
at 26; Maiten Deposition at 5, 7. Prior to joining CWM,
Maiten worked as a mail carrier for the United States Postal
Service (USPS), see Employment Records at 43,
served as a member of the United States Navy, see
generally VA Documentation. In his deposition, Maiten
stated he left the Navy because of injuries to his knees.
Maiten Deposition at 3, 13. His VA Documentation reflects
Maiten had service related disabilities, but does not specify
the nature of those disabilities. VA Documentation at 2.
starting at CWM as a part-time front desk assistant, Maiten
was promoted several times “including to a full-time
Residence Advisor, Case Manager and Director of Residents and
Drop-in Center (‘Director’).” Pittman
Declaration at ¶ 4. See also Maiten Deposition
at 7-8; Maiten Deposition Attach. at 5. Maiten’s
various titles during his tenure with CWM also included
Director of Residents and Drop-In & Fleet Services, as
well as Manager of Residential/Admissions. Maiten Deposition
Attach. at 27; Pittman Declaration at ¶ 17.
working at CWM, Maiten had periodic performance reviews.
Maiten Deposition at 9. His October 2015 Performance Review
was generally positive, but did include some constructive
feedback regarding areas in which he could improve. For
example, the evaluator commented that Maiten often forgot
meetings or tasks. See October 2015 Performance
Review at 3, 4, 7. As a means to address this issue,
Maiten’s supervisor at the time, Kevin
Carrico, recommended that Maiten use a
planner or the calendar on his iPad to “keep things in
[his] memory.” Id. at 3, 7. Maiten viewed
Carrico’s recommendation that he use an iPad to help
him “keep on track” as a
“suggestion.” Maiten Deposition at 13, 14.
Although CWM did not provide Maiten with an iPad, he did use
his own device. Maiten also noted that at one point in time
another CWM employee, Myrtle Wright, was assigned to help
Maiten “be on track.” Id. at 13,
Maiten’s supervisor also commented that
“sometimes [Maiten’s] frustration with [CWM
clients] comes out as negative interaction. The
administration has received complaints that Mr. Maiten talks
down to the residents at times.” October 2015
Performance Review at 4. Accordingly, Carrico recommended
that Maiten “be conscious of how you come across to
residents. It’s not what you say but how you say
it.” Id. at 7.
January of 2016, Carrico, the then Vice President of
Operations, left CWM, and his position remained unfilled for
many months. Pittman Declaration at ¶ 13-14; Wright
Declaration at ¶¶ 9-10. In August of 2016, after
the position had been vacant for at least six months, Sharon
Wright decided to apply because she believed the lengthy
“vacancy had negatively impacted the operations of
CWM.” Wright Declaration at ¶ 10. That same month,
Pittman appointed Wright as the new VP of Operations. Pittman
Declaration at ¶ 13; Wright Declaration at ¶ 11. At
the time of her appointment, the record suggests Wright was
fifty-two or fifty-three years old. Wright Declaration at
¶ 1 (indicating Wright was fifty-five years old in July
of 2019). Wright had “served on the CWM Board of
Directors from 2009 to 2013 and became knowledgeable about
the day-to-day operations of CWM.” Id. at
¶ 8. Prior to being promoted to Vice President of
Operations, Wright had also worked for CWM since 2013 as its
instructor for the Janitorial/Custodial program. Pittman
Declaration at ¶ 16; Wright Declaration at ¶ 9.
neither applied for nor expressed an interest in the Vice
President of Operations position. Maiten Deposition at 22;
Pittman Declaration at ¶ 14. Although he complains that
CWM never advertised the position, Maiten Deposition at 22,
Maiten does not deny that he was aware that the position was
vacant from January 2016 until it was filled in August 2016.
Pittman Declaration at ¶ 14. When CWM appointed Wright,
rather than Maiten, to be Vice President of Operations,
Maiten perceived that he had been “passed over.”
Maiten Deposition at 22. He believed he had more seniority
than Wright, and that she was younger than he. EEOC
Documentation at 3. However, Maiten did not complain about
the decision at the time. Maiten Deposition at 22.
September of 2016, and in an effort to be more efficient,
“CWM reorganized its organizational hierarchy . . .
.” Pittman Declaration at ¶ 17. Wright’s
title was changed to “Vice President of Facilities and
Operations [and] incorporate[ed] additional responsibilities
related to facility management.” Wright Declaration at
¶ 18. At the same time, Maiten’s title was changed
from “Director of Residents and Drop-In Center”
to the “Manager of Residential/Admissions.”
Pittman Declaration at ¶ 17. Under this reorganization,
Maiten’s duties and responsibilities largely remained
the same and his compensation did not change. Id.;
Wright Declaration at ¶ 19.
February of 2017, Maiten received another performance review
for his work from September 2016 to February 2017. February
2017 Performance Review at 2. In contrast to the generally
positive feedback Maiten received in his October 2015
Performance Review, the February 2017 review was less
positive and identified numerous areas in which he needed to
improve. For example, the review included negative comments
in ten of the seventeen different evaluation categories.
Id. at 3-4, 5. Some of the comments were general in
nature, referencing Maiten’s inconsistency in
completing his work in a timely and attentive manner. See
id. at 3 (“Employee knows the technical parts of
his job, but fails to accomplish job duties in a timely
manner . . . “); id. (“employee is not
perceived as consistent in job responsibilities, and not
consistent in responding.”); id.
(“Employee is aware of policies and procedures of CWM,
but has not followed to ensure continuingly [sic] and
enforcement updates.”); id. at 4 (“The
employee shows a deficit” in “the ability to
identify problems, potential problems, develop[ing]
solutions, and evaluat[ing] decision effectiveness.”).
Others identified specific examples of instances where
Maiten’s work performance was poor or mediocre,
including instances of negative interpersonal interactions
with CWM staff and clients. See id. at 3 (detailing
specific instances of failing to have an established plan or
activities for veterans); id. (specific examples of
Maiten’s failure to fully implement CWM policies and
procedures); id. at 4 (negative interactions with
staff and clients); id. at 5 (same).
February 2017 evaluation also referenced Maiten’s
performance at a recent VA inspection. Under the heading of
“Employee need[s] to be aware of policies to ensure
correct decisions/reasoning from day to day polices &
procedures, ” was the comment that “[e]mployee
mentioned the storage of medication and food in the same
refrigerator during an inspection.” Id. at 5.
As explained in more depth by Maiten in his deposition, it
was his responsibility to make sure that veterans’
medications were stored appropriately. Maiten Deposition at
11. During a November 2016 VA inspection,
one of the inspectors asked what was in the refrigerator. And
she also asked for the keys. We had it locked. So I told her
the clients medication and the clients special diet food that
they had in there. Then she got the key and she looked in it.
Then we went upstairs for debrief. She stated that I told her
what was in the refrigerator
Id. As a result of the inspection, CWM received two
to three negative notes from the VA, including that they
needed to “get another refrigerator . . . [and]
separat[e] the medication from the food.” Id.
As reported by Maiten, Pittman was upset with him for telling
the VA inspector what was stored in the refrigerator.
Id. “She even wrote it in my eval . . . that I
said something inappropriate to the inspector . . . . Her
word is that I voluntarily gave information I
shouldn’t have. That’s the part that’s in
the evaluation.” Id. Following the November
2017 inspection, Maiten felt that he and Pittman were
“disconnected, so to speak.” Id. Maiten
nonetheless clarified that Pittman “never treated him
bad” but that their “connection got farther
apart” after the VA inspection. Id. at 12. For
her part, Pittman stated that Maiten did not raise any
concerns with her regarding “the Department of Veterans
Affairs inspection in November 2016.” Pittman
Declaration at ¶ 21.
result of his February 2017 Performance Review, CWM placed
Maiten on a 90-day Performance Improvement Plan (PIP).
See February 2017 Performance Review at 6-7; Maiten
Deposition at 26. In the PIP, Wright directed Maiten to
[s]et goals for projects and tasks. Improve communication
with all viable technology. When given instructions from or
by CWM CEO they need to be completed in a timely manner and
if uncertain of the task, then ask questions. Develop a
strategic plan for the next 90 days and communicate said plan
to Mrs. Sharon Wright by 2017.
Id. at 6. However, as discussed below, there were
ongoing communication issues between Maiten and his
supervisors regarding how, and in what manner, he was
supposed to proceed with his PIP.
early June of 2017, it appears Wright communicated and met
with Maiten regarding his PIP. Maiten Deposition at 26;
Maiten Deposition Attach. at 57. In Wright’s
communication with Maiten, she noted that since placing
Maiten on the PIP in February, he had either failed to
complete a variety of his PIP assignments, or was late in
doing so. Maiten Deposition Attach. at 57. Additionally, in
an e-mail dated June 5, 2017, Wright informed Pittman that
Wright had communicated with Maiten about his performance
plan, but that Maiten expressed his belief that the
incomplete plan he submitted earlier in the year was
sufficient, and that he otherwise believed his PIP was
unwarranted. Id. at 55.
7, 2017, the CWM staff participated in a mock inspection in
order to prepare for an upcoming visit from the VA in
association with grants CWM received from the federal agency.
Maiten Deposition at 26. The inspection was not a surprise.
Indeed, several days before the mock inspection, Pittman
e-mailed Maiten telling him that she would be doing it on
June 7th. Id. Following the mock inspection, Pittman
sent an e-mail to Maiten stating she “was very
disappointed of what [she] observed during the inspection,
” stating her belief that CWM would have failed the
inspection if it had been performed by the VA. Maiten
Deposition Attach. at 58. Pittman detailed over sixteen
specific deficiencies and areas requiring improvement prior
to the upcoming VA inspection, and she noted that “it
appears that the follow-through hasn’t taken place . .
. or completed on a regular [basis].” Id.
Pittman further stated the inspection was “unacceptable
and dangerous to our staff, volunteer and residents.
Immediate action is required . . . .” Id.
Finally, Pittman complained that Maiten “stepped away,
several times, during the inspection . . . . You disengaged
yourself, I had to get your attention and engage you back in
the process and that is unacceptable.” Id. at
59. In response, Maiten contacted his team members to
acknowledge that his department let CWM “down in a big
way, ” and that their day-to-day operations did not
meet the required standards. He called upon his team to
“stand up and take control of our Department. [I]f we
need more time we will work this weekend but I am sure we can
make it happen . . . .” Id. at 60.
in the latter part July of 2017, there was a conflict between
Maiten and Pittman about his ability to access and remove
certain files from her office. Pittman sent a message to the
CWM team noting that several boxes of VA files had been
removed from her office without permission or any
communication indicating that the files were going to be
removed. Id. at 61. Maiten acknowledged that he had
removed the files, and apologized. Id. He later
explained in his deposition that it was his common practice
to take files out of Pittman’s office whenever he
needed them to fulfill his job duties. Maiten Deposition at
27. He stated that
I apologized that I may have offended her, but that’s
the practice . . . . – I had been in her office many
times and got files out of the office if I needed them. If
for some reason I needed them that day, I went and got them
out of the office so we can complete the files that we had.
But that was normal practice, especially if her assistant was
there and gave us an authorization.
that month, on July 28, 2017, Maiten’s supervisors
informed him he was being terminated from his employment at
CWM. Maiten’s termination letter stated that he was
being dismissed because of his inconsistency in
“communication and follow through on job responsibility
and performance.” Dismissal Letter at 2. According to
Pittman and Wright, Maiten “was not fulfilling the
essential functions of his position when he was terminated.
[His] termination was the result of poor performance and
communication. [He] failed to compete the duties, essential
functions, and responsibilities of his position.”
Pittman Declaration at ¶¶ 22-24; Wright Declaration
at ¶¶ 21-22. Both Pittman and Wright also noted
that Maiten “was counselled about his performance
issues on numerous occasions from November 2016 until his
termination in July 2017.” Pittman Declaration at
¶ 18; Wright Declaration at ¶ 20. Nonetheless, his
work performance did not improve. Wright Declaration at
¶ 20. CWM eventually replaced Maiten with a sixty-two
year old male. Pittman Declaration at ¶ 25.
believes that CWM terminated him for discriminatory and
retaliatory reasons. In his deposition, Maiten testified that
he suffered from memory problems, and that CWM terminated
him, in part, because of his memory issues. Maiten Deposition
at 13. While Maiten is not entirely specific as to the root
or cause of his memory issues, he testified that when he was
a child he was in a car accident which temporarily left him
in a coma. Id. Additionally, in his early 20s,
Maiten had an accident in which he ran “headfirst into
a telephone pole” while playing softball, which he
suggests resulted in facial fractures. Id. His
medical records from the softball accident noted a laceration
on his left eyebrow and eyelid and a contusion under his eye,
along with leg and arm injuries. Medical Records at 1-2, 5.
The medical records noted that Maiten’s neurological
exam was “unremarkable.” Id. at 2.
Maiten also testified that he suffered from a variety of
other medical problems, including artificial knees, PTSD,
depression and anxiety, a fused disk in his back, and a pin
in his right hand which limited function. Maiten Deposition
in 2013, CWM worked with Maiten regarding his anxiety, which
often arose when Maiten was in crowded and noisy rooms.
Maiten Deposition at 14; EEOC Documentation at 3. In an
effort to help Maiten, management at CWM excused him from
attending staff meetings while Maiten worked with his doctor
to alter his medications and temper his anxiety. Maiten
Deposition at 14. Once Maiten and his health care providers