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Demps v. Hillsborough County Clerk of Court

United States District Court, M.D. Florida, Tampa Division

October 10, 2019

ANGEL V. DEMPS, Plaintiff,



         This matter is before the Court on Defendant, Hillsborough County Clerk of the Court, motion for summary judgment filed on July 30, 2019. (Doc. #14).[1]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 as follows:


         In 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 Number 511-2018-00686.

         The 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.

         Legal Standard

         The 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).

         The 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).


         To establish a retaliation claim under Title VII, Plaintiff must show: (1) she was engaged in protected activity, (2) she suffered a materially adverse action, [2] 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).

         Initially, 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.[3] 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.”[4] 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.

         Furthermore, 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).[5] 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.[6]

         After 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.

         Plaintiff cannot establish a ...

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