United States District Court, M.D. Florida, Tampa Division
ANGEL V. DEMPS, Plaintiff,
HILLSBOROUGH COUNTY CLERK OF THE COURT, Defendant.
ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF
BARBER UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant, Hillsborough County
Clerk of the Court, motion for summary judgment filed on July
30, 2019. (Doc. #14).Plaintiff, Angel V. Demps, filed a response
in opposition on August 19, 2019. (Doc. #21). After reviewing
the motion, response, court file, and record, the Court finds
2015, Plaintiff filed an EEOC Charge of Discrimination
against Defendant alleging that she was not chosen for a
promotion (the “2015 discrimination charge”) on
the basis of her race. See EEOC Charge Number
511-2015-01207. Two years later, Plaintiff filed a second
EEOC charge (the “2017 retaliation charge”)
alleging Defendant formally reprimanded her in retaliation
for her 2015 discrimination charge. See EEOC Charge
EEOC mailed a right to sue letter for the 2017 retaliation
charge to Plaintiff on November 30, 2017. On March 28, 2018,
Plaintiff filed her complaint alleging a single count of
retaliation under Title VII pursuant to her 2017 retaliation
charge. (Doc. #1). Defendant filed an answer on April 30,
2018. (Doc. #6). Since the filing of this lawsuit, Plaintiff
was recommended for termination in September 2018 on grounds
including her shortcomings cited in the 2017 formal
reprimand. Plaintiff resigned in November 2018.
Court may grant summary judgment only where “there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). “Whether a genuine issue concerning a material
fact exists is itself a question of law that must be decided
by the court.” See Carlson v. FedEx Ground Package
Systems, Inc., 787 F.3d 1313, 1317-18 (11th Cir. 2015).
An issue is genuine where “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986).
moving party bears the initial burden to show there is no
genuine issue of material fact. Allen v. Tyson Foods,
Inc., 121 F.3d 642, 646 (11th Cir. 1997). Once the
moving party has met that burden, the nonmoving party must
identify specific facts and evidence to show the existence of
a genuine issue of material fact. Jeffrey v.
Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir.
1995). While the Court considers the facts in the light most
favorable to the nonmoving party, speculation does not create
a genuine issue of fact and the nonmovant must provide more
than a mere scintilla of evidence to survive summary
judgment. Shiver v. Chertoff, 549 F.3d 1342, 1343
(11th Cir. 2008); Urquilla-Diaz v. Kaplan Univ., 780
F.3d 1039, 1050 (11th Cir. 2015).
establish a retaliation claim under Title VII, Plaintiff must
show: (1) she was engaged in protected activity, (2) she
suffered a materially adverse action,  and (3) there was
a causal connection between her engagement in the protected
activity and the adverse action. See Howard v. Walgreen
Co., 605 F.3d 1239, 1244 (11th Cir. 2010). Title VII
retaliation claims must be proven according to the
traditional principles of but-for causation. See
Jefferson v. Sewon Am., Inc., 891 F.3d 911, 924 (11th
Cir. 2018). Plaintiff therefore must be able to establish
that the “unlawful retaliation would not have occurred
in the absence of the alleged wrongful action or actions of
[Defendant].” See Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 570 U.S. 338, 360 (2013).
the Court notes that Plaintiff has failed to rebut any of the
facts established by Defendant. In support of its motion,
Defendant has provided affidavits, letters, and
documentation. See (Docs. ## 14, 15, 16, and 20).
Plaintiff, on the other hand, failed to appear for her
deposition multiple times and failed to provide verified
written responses to the Defendant's
interrogatories. The only fact Plaintiff places on the
record comes from her own affidavit where she contends the
errors she was reprimanded for are “commonly committed
by clerks.” Further, Plaintiff's pleadings and
conclusory allegations, in the absence of any specific
supporting facts, have no probative value. Leigh v.
Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir.
2000). This failure has left the Court almost exclusively
with the evidence provided by Defendant.
the Court only considers the 2017 formal reprimand and will
not examine the September 2018 termination recommendation.
Defendant's recommendation to terminate Plaintiff's
employment in September 2018 took place almost a year after
the conclusion of the EEOC's investigation into the 2017
retaliation charge. See (Doc. #15-2). Nothing in the
record suggests that the termination recommendation, an
action that occurred long after the conclusion of the EEOC
investigation, could reasonably be expected to grow out of
the charge. See Gregory v. Ga. Dep't of Human
Resources, 355 F.3d 1277, 1279-80 (11th Cir. 2004)
(“allegations of new acts of discrimination are
inappropriate” and a “plaintiff's judicial
complaint is [therefore] limited by the scope of the EEOC
investigation which can reasonably be expected to grow out of
the” original charge); Baskerville v. Sec. of
Dep't of Veteran Affairs, 377 F.Supp.3d 1331, 1335
(M.D. Fla. 2019) (only “claims which serve to amplify,
clarify, or more clearly focus earlier EEOC complaints are
appropriate”). Because the termination recommendation
occurred after the conclusion of the EEOC's investigation
it could not have reasonably been expected to grow out of the
original charge, Plaintiff has not exhausted her
administrative remedies, and the Court therefore may not
consider it at this time. See Baskerville, 377
F.Supp.3d at 1335.
reviewing the evidence, the Court finds no genuine issue of
material fact and Defendant is therefore entitled to judgment
as a matter of law because (1) Plaintiff cannot establish a
causal connection between Defendant's reprimand and
Plaintiff's 2015 discrimination charge; and (2) Defendant
has established, and Plaintiff failed to rebut,
non-retaliatory reasons for its reprimand.
cannot establish a ...