El-Khouri v. Eastern Florida State College Board of TrusteesEl-Khouri v. Eastern Florida State College Board of Trustees
Before the Court are Defendant Eastern Florida State College Board of Trustees’ Motion for Summary Judgment (Doc. 32) and Motion to Strike (Doc. 43).
BACKGROUND1
In this employment discrimination case, Plaintiff Anthony El-Khouri is a Lebanese man who grew up in Melbourne, Florida. (Doc. 32-1, p. 14:6-15.) Nearly all his life, El-Khouri‘s mother worked in the library of the Melbourne campus of Eastern Florida State College (“College“), and he grew up visiting the College and hoping to work there. (Id. at 13:4-14, 32:4-19.) Years later, after El-Khouri earned his medical doctorate, the College hired him as an adjunct professor to teach
But El-Khouri‘s first semester did not go as smoothly as he hoped, as nine students complained to the College about him or his courses. (Doc. 32-4, p. 10:1-3.) Students alleged overly difficult coursework, the use of profanity in class, and other unprofessional behavior. (Id. at 14:25-15:9, 19:6-15; see Doc. 37-9, pp. 13-27.) Five of the nine complaints stemmed from an alleged confrontation between El-Khouri and a student during class that resulted in the College security department‘s involvement. (Doc. 32-4, pp. 13:24-14:22; see Doc. 37-9, pp. 13-27.) One student, however, came forward to share positive comments about El-Khouri. (Doc. 32-4, p. 21:16-24.)
Barbara Kennedy, the Associate Provost of the Melbourne campus, received and recorded each student complaint. (Doc. 32-2, pp. 19:24-20:3; Doc. 32-4, pp. 6:16-20, 9:16-17.) Kennedy discussed the complaints with Sandy Handfield, then Provost at Melbourne. (Doc. 32-2, pp. 7:4-7, 20:4-7.) Kennedy and Handfield decided El-Khouri should be removed from the summer 2018 schedule at the Melbourne campus. (Doc. 32-1, p. 53:16-23; Doc. 32-2, p. 20:8-12.) El-Khouri called Scott Herber, his department chair, to ask why he was taken off the schedule, and Herber told him it was because of “whiny students.” (Doc. 32-1, p. 53:16-24.)
El-Khouri continued to teach at Cocoa, and his annual contract was renewed for 2020-2021 and 2021-2022. (Doc. 32-6, ¶¶ 8, 9.) During the 2021-2022 year, El-Khouri applied for and was granted, without incident, a transfer back to Melbourne. (Doc. 32-1, p. 82:16-25.) El-Khouri‘s direct supervisor then observed his classes, gave him a satisfactory evaluation, and recommended another renewal. (Doc. 39-1, p. 3.) But late in spring 2022, El-Khouri was notified that his contract would not be renewed for 2022-2023. (Doc. 32-1, pp. 90:16-20, 91:17-22.)
This non-renewal occurred after significant organizational changes at the College that had been brewing for the past year. Starting in July 2021-after renewal decisions for 2021-2022 had already been made-the College reorganized
According to the College, Handfield discussed the fall 2018 student complaints and her concerns about El-Khouri with Fletcher, and these concerns led to their recommendation that the President not renew his contract, which the President approved. (Id. ¶¶ 18-19; Doc. 32-9, ¶¶ 5-6.) Contrary to the College‘s usual practice, neither of El-Khouri‘s supervisors were involved in the discussion of his non-renewal. (Doc. 37-4, ¶¶ 12-13, 16.)
In April 2022, Handfield and Fletcher met with El-Khouri and notified him of the non-renewal. (Doc. 32-1, p. 91:17-22; Doc. 32-2, p. 21:2-11.) In the meeting, El-Khouri accused Fletcher and Handfield of discrimination, asking if his contract was not renewed because-among other things-he is Arab and Lebanese.
El-Khouri immediately filed a grievance with the College, alleging Handfield had it out for him since he began teaching. (Doc. 32-1, pp. 102:12-14, 145:2-147:22; Doc. 32-13.) Handfield told Herber, El-Khouri‘s former chair, that she was not happy El-Khouri managed “to get past” her when he was hired at Cocoa. (Doc. 37-1, ¶ 21.) Herber also heard Handfield refer to El-Khouri‘s mother as “a pain in the ass” due to her “culturally related” behavior. (Id. ¶ 22.)
The grievance process contained multiple steps, allowing for three separate reviews. The first reviewer denied El-Khouri‘s grievance. (Doc. 32-1, pp. 108:3-10.) Despite being a part of the conduct grieved, the second reviewer was Handfield; she also denied his grievance. (Id. at 111:23-113:14.) But the third reviewer, the Vice President of External Affairs, granted El-Khouri‘s grievance. (Id. at 113:22-114:1, 115:24-116:2.) So the College reinstated El-Khouri before fall 2022. (Id. at 119:18-21.) The Vice President of External Affairs apologized to El-Khouri for how he was treated and told him Handfield should have reinstated him during the second review. (Doc. 37-3, ¶ 7.) The College later renewed El-Khouri‘s contract for 2023-2024. (Doc 32-1, pp. 129:9-12.) Ahead of 2024-2025, El-Khouri applied for
Around the same time El-Khouri filed his grievance, he also filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC“) and the Florida Commission on Human Relations (“FCHR“) alleging discrimination based on his Lebanese or Arab national origin in violation of Title VII of the Civil Rights Act of 1964. (Doc. 37-6.) The EEOC issued El-Khouri a right-to-sue notice. (Doc. 1-3.)
El-Khouri then filed this lawsuit against the College, alleging his non-renewal constituted national origin discrimination in violation of Title VII (Count I) and the Florida Civil Rights Act (“FCRA“) (Count II). (Doc. 1.) The College now moves for summary judgment on both claims. (Doc. 32.) El-Khouri opposes. (Docs. 37-39.) The College also moves to strike certain portions of the record El-Khouri submitted with his response. (Doc. 43.) El-Khouri opposes. (Doc. 44.) The matters are ripe.
STANDARDS
Summary judgment is appropriate only “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.”
ANALYSIS
I. Motion to Strike
The College moves to strike Herber‘s affidavit (Doc. 37-1), Teresa Jones‘s affidavit (Doc. 37-2), and portions of El-Khouri‘s affidavit (Doc. 37-3). (Doc. 43.)
A. Jones
As to Jones, an administrator El-Khouri points to as a comparator, the College argues her affidavit must be stricken because El-Khouri did not disclose her as a witness. (Doc. 43, p. 8.) El-Khouri argues that “he did not know” Jones was a potential witness until after the College moved for summary judgment, blaming the College‘s objections to discovery requests. (Doc. 44, p. 6.)
B. Herber
Next, the College argues Herber‘s affidavit should be stricken because he stated that the information was to the “best of his knowledge” instead of “to his knowledge.” (Doc. 43, pp. 6-7 (citing Rolison v. Sterling, No. 08-0389, 2009 WL 2514294, at *6 (S.D. Ala. Aug. 13, 2009) (striking affidavits when the affiant used “qualifying phrases” such as “to the best of my knowledge“)).) “An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”
Alternatively, the College argues that ¶ 24 of Herber‘s affidavit should be stricken because he was not employed at the College at the time of the referenced employment decision-Handfield recommending termination of an Asian-American teacher-so he purportedly has no personal knowledge of the event. (Doc. 43, p. 7 (citing Broughton v. Sch. Bd. of Escambia Cnty., 540 F. App‘x 907 (11th Cir. 2013) (unpublished)).) “A non-conclusory affidavit which complies with Rule 56 can create a genuine dispute concerning an issue of material fact, even if it is self-serving and/or uncorroborated.” United States v. Stein, 881 F.3d 853, 858-59 (11th Cir. 2018). Here, the College‘s cited2 unpublished case law is inapposite because Herber does not claim to know Handfield‘s reasons for recommending the termination-an intent issue he could not reasonably have personal knowledge to substantiate. (See Doc. 37-1, ¶ 24); cf. Broughton, 540 F. App‘x at 911. But Herber properly avers he does have personal knowledge about the fact of the employment decision even though he had retired by that point, so Broughton is inapposite and this portion of Herber‘s affidavit will be considered.
But the final two paragraphs of Herber‘s affidavit, stating his belief and
C. El-Khouri
Finally, the College argues that ¶¶ 8-13 of El-Khouri‘s affidavit must be stricken because he lacks personal knowledge of the College‘s employment decisions. (Doc. 43, pp. 4-6.) But here, like with Herber, because El-Khouri attests to his personal knowledge of his colleagues’ employment-and the College has not provided sufficient reason to doubt his personal knowledge or to consider the whole affidavit a sham-the affidavit may be considered. (Doc. 37-3, ¶¶ 8-13); see Stein, 881 F.3d at 858; cf. Grady v. BellSouth, 160 F. App‘x 863, 865 (11th Cir. 2005) (striking affidavit where witness did not testify she had personal knowledge of the relevant employment criteria).
II. Exhaustion
As a threshold matter, the College argues El-Khouri‘s claims are barred
A. Federal Law
First, the College argues El-Khouri‘s Title VII claim is barred because the EEOC, not the Department of Justice (“DOJ“), issued his right-to-sue letter. (Doc. 32, p. 9.) El-Khouri concedes the DOJ did not issue a right-to-sue letter but argues this requirement should be waived because he did obtain a letter from the EEOC. (Doc. 38, p. 12.)
While Title VII itself provides that plaintiffs bringing cases against government subdivisions must get right-to-sue letters from the DOJ, the DOJ has taken the position based on regulatory authority that it will not issue the letters because the EEOC should issue them. See
Here, the EEOC did not direct El-Khouri to contact the DOJ nor did it refer his complaint to the DOJ (see Doc. 1-3), so he was “working under the understandable assumption that [his] receipt of a right-to-sue letter from the
B. State Law
Next, the College argues El-Khouri‘s FCRA claim is barred because he did not assert a FCRA violation in his EEOC Charge of Discrimination, as some Florida appellate courts require. (Doc. 32, p. 10.) El-Khouri, relying on other Florida appellate courts, counters that an explicit mention of FCRA is not required. (Doc. 38, p. 13.)
“[A]bsent a decision from the [Florida Supreme Court] on an issue of state law, [this Court] is bound to follow decisions of [Florida‘s] intermediate appellate courts unless there is some persuasive indication that the [Florida Supreme Court] would decide the issue differently.” McMahan v. Toto, 311 F.3d 1077, 1080 (11th Cir. 2002). “The decisions of the district courts of appeal represent the law of Florida
Two DCAs are in certified conflict as to whether a plaintiff must specifically allege a FCRA violation in his charge of discrimination. See
If the legislature intended for the statutory language in
section 760.11 to require that the aggrieved party specifically allege in the complaint that his or her claims were under the FCRA, it could have said so, but it did not. And in finding that [the plaintiff] failed to exhaust his administrative remedies by failing to specifically allege in his charge of discrimination that his claims were under the FCRA, the trial court added a requirement that is not found anywhere within the statute and contravenes the legislature‘s clear intent that the statute be interpreted liberally.
Id. Based on this reasoning and the Florida Supreme Court‘s signaling, the Court concludes the Florida Supreme Court will not require a plaintiff to mention FCRA in his EEOC claim to properly exhaust his administrative remedies.
Here, El-Khouri‘s Charge of Discrimination was filed with the EEOC and the FCHR and includes the facts required by the statute. (Doc. 32-13.) So this dual-filed grievance sufficiently exhausted El-Khouri‘s administrative remedies, and the Court will consider his FCRA claim on the merits. See Ramos, 376 So. 3d at 104; see also Taylor v. Fla. E. Coast Ry. Corp., No. 1:24-cv-21329, 2024 WL 3829966, at *3 (S.D. Fla. Aug. 15, 2024) (applying Ramos).
III. Discrimination
Turning to the merits, El-Khouri claims that the College did not renew his contract because of his Arab and Lebanese national origin in violation of Title VII and FCRA.4 (See Doc. 1.)
In cases involving only circumstantial evidence, such as this one, a plaintiff may survive summary judgment by satisfying the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Lewis, 918 F.3d at 1220. Under McDonnell Douglas, the plaintiff must first establish a prima facie case of discrimination, meaning he must show he was: (1) a member of a protected class; (2) qualified; (3) subjected to an adverse employment action; and (4) treated differently than similarly situated employees outside of his protected class. Id. at 1220-21. The burden then “shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions.” Id. at 1221. If the defendant meets its burden, the burden shifts back to the plaintiff to “demonstrate that the defendant‘s proffered reason was merely a pretext for unlawful discrimination.” Id.
As to El-Khouri‘s prima facie case, the College contests only the last element, arguing that El-Khouri fails to produce evidence of similarly situated comparators who were treated more favorably. (Doc. 32, p. 13.) El-Khouri first points to
El-Khouri does point to potential comparators treated more favorably: Alan Spindler and Christopher Petrie, white male science professors who had numerous student complaints but were not terminated or non-renewed, and Billy Fried, a white male professor awarded tenure at Melbourne despite previous performance complaints at another campus.5 (Doc. 37-3, ¶¶ 8-9.) Comparators must be “situated in all material respects.” Lewis, 918 F.3d at 1226 (cleaned up). This is “a high bar.” Tynes v. Fla. Dep‘t of Juv. Just., 88 F.4th 939, 947 (11th Cir. 2023). An appropriate comparator should have “engaged in the same basic conduct,” operated under the same “employment policy, guideline, or rule,” shared
But McDonnell Douglas is not the only lens through which to analyze whether a plaintiff has satisfactorily shown discrimination to survive summary judgment-a plaintiff may also present a “convincing mosaic of circumstantial evidence,” which is “enough evidence for a reasonable factfinder to infer intentional discrimination.” Tynes, 88 F.4th at 946 (cleaned up). A convincing mosaic may include: “(1) suspicious timing, ambiguous statements, or other information from which discriminatory intent may be inferred, (2) systematically better treatment of similarly situated employees, and (3) pretext.” Jenkins, 26 F.4th at 1250 (cleaned up). And even if comparators are not similarly situated enough to pass muster under McDonnell Douglas, they are still relevant-and it is up to the jury to decide how much weight to give them. See Tynes, 88 F.4th at 947. Weaknesses in the employer‘s proffered reason and the employer‘s deviation from
Here, while the College asserts it did not renew because of the 2018 complaints (Doc. 32, p. 15), the record presents a convincing mosaic from which a reasonable jury could find the College‘s reason is pretext for national origin discrimination. The record shows:
- The student complaints occurred years before the non-renewal
- El-Khouri taught without incident at both Cocoa and Melbourne for years after the complaints
- Multiple white professors (Spindler, Petrie, and Fried) were renewed or tenured despite complaints
- Another Arab professor (Shimy) was not renewed by the same decisionmaker at the same time as El-Khouri
- Handfield did not consult El-Khouri‘s direct supervisors, who recommended renewal, in making the decision-against usual practice
- Handfield was upset that El-Khouri “got past her”
- Handfield commented that El-Khouri‘s mother, an Arab woman, was a pain because of her “culture”6
- Handfield was a part of the grievance process even though she was the subject of it, and she rejected the grievance
- The College granted El-Khouri‘s grievance, reinstated him, apologized
CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED:
- The College‘s motion to strike (Doc. 43) is GRANTED IN PART AND DENIED IN PART:
- The motion is GRANTED as to Teresa Jones‘s affidavit (Doc. 37-2) and ¶¶ 25-26 of Scott Herber‘s affidavit (Doc. 37-1), which are STRICKEN.
- The motion is DENIED in all other respects.
- The College‘s motion for summary judgment (Doc. 32) is DENIED.
DONE AND ORDERED in Chambers in Orlando, Florida, on February 6,
ROY B. DALTON, JR.
United States District Judge