MARY A. SMALL v. CITY OF HOLLYWOOD
CASE NO. 21-CV-62009-RAR
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
February 28, 2023
ORDER GRANTING DEFENDANT‘S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE comes before the Court upon Defendant City of Hollywood‘s Motion for Summary Judgment [ECF No. 44] (“Motion“).1 Having considered Defendant‘s Motion, the record, and being otherwise fully advised, it is hereby
BACKGROUND
Plaintiff Mary Small alleges she was subjected to a hostile work environment while employed by Defendant City of Hollywood (the “City“) and subsequently retaliated against for reporting allegedly discriminatory incidents. See generally Am. Compl. [ECF No. 25]. The City moves for summary judgment on all of Small‘s claims. The following facts are—unless otherwise noted—not genuinely disputed. Small began working within the City‘s Parks, Recreation and Cultural Arts Department (“PRCA“) as the Grants & Special Projects Manager in February 2020. Def., City of Hollywood‘s Statement of Material Facts in Supp. of Mot. for Summ. J. [ECF No. 43] (“Def.‘s SOMF“) ¶ 1. While employed with the City, Small‘s direct supervisor was the Assistant Director of the PRCA, David Vazquez, and the Director of the PRCA was Cory Styron. Def.‘s SOMF ¶¶ 5-6. For the first year of her employment, Small was subject to a one-year probationary period, during which she was “serving a trial period to determine [her] fitness or ability to perform” her duties, and she could “be terminated from the City at any time.” See Probationary Policy [ECF No. 43-7]; Def.‘s SOMF ¶ 13.2
I. Initial Comments Relevant to Plaintiff‘s Hostile Work Environment Claims
Small bases her hostile work environment claims on three comments that were made during her employment with the City, two of which were made shortly after her employment began. The first comment was made during Small‘s first week of employment, when she arrived late to a “site visit.” Am. Compl. ¶ 16. Because Small was late, Mike Wharton—a white employee Small was meeting at the site—allegedly asked Small “if she was on CP time.” Am. Compl. ¶ 16; Def.‘s SOMF ¶¶ 18-19. Wharton also purportedly referenced “Mexican time” because another PRCA manager who was late to the site visit, Joaquin Arellano, is Hispanic. Def.‘s SOMF ¶¶ 18-19. The City denies Wharton made these comments. Reply Statement of Material Facts [ECF No. 50] ¶ 96. After these comments were made, Small, Wharton, and Arellano seemingly completed the site visit without further incident. See Small Dep. 81:19-21. Small did not report this incident to a superior. Def.‘s SOMF ¶ 20.
The second incident occurred in March 2020, during a meeting of the PRCA Advisory Board. See Def.‘s SOMF ¶ 27. The PRCA Advisory Board is comprised of a “group of citizens who provide advice to the PRCA.” Def.‘s SOMF ¶ 28. Its members are neither elected City officials nor City employees. Id. The record makes clear that at this meeting, a PRCA Advisory Board member made a comment relating to “Jamaicans,” but recollections regarding the nature of this comment vary greatly. Small was not in attendance and only learned about the comment after the fact, but she believes the comment was a “slur concerning Jamaicans taking all the
Though Small apparently learned about this comment from Betton, it is disputed whether Betton was offended by the comment. Compare Small Dep. 91:13-15 (“I said . . . Sandra, were you offended? And she said, yes, I was offended.“), with Betton Decl. ¶ 7 (stating that Betton “did not take offense to this” comment). Whether Betton represented she was offended or not, Small proceeded to report the comment to three people: first to David Vazquez, then to Cory Styron, and finally to Joshua Kittinger, an employee in the City‘s human resources department. Def.‘s SOMF ¶¶ 34, 37-39; Small Dep. 88:7-15, 95:6-11; see generally Kittinger Email Chain [ECF No. 43-1]. Small testified that she simply reported the comment to Vazquez to escalate it up the chain of command within the PRCA to “get it off [her] plate.” Small Dep. 96:19. According to Small, Vazquez responded with threats of termination as well as references to the fact Small was still subject to the probationary policy. Small Dep. 96:22-24, 97:17-24. It is disputed whether Vazquez made these comments. See Vazquez Dep. 32:22-33:6. Other than this disputed fact, however, there is no evidence Small and Vazquez discussed this comment any further. Small‘s subsequent report of the comment to Styron appears to have been uneventful based on the evidence in the record. Small Dep. 88:10-15, 99:15-101:5.
Small then made Kittinger aware of the comment in an email conversation she initiated to inform him she would begin looking for other employment opportunities with the City. Kittinger Email Chain at 3. In her initial email, Small noted issues she faced working with Vazquez, several of which she claimed began after she “told him that a [sic] ethnically charged comment was made in his presence and two of the employees said he did nothing.”3 Id. Though Small did not include any information about this “ethnically charged comment” other than the fact it was “made by a Board member,” id. at 4, the parties acknowledge this was a reference to the comment made by the PRCA Advisory Board member. Def.‘s SOMF ¶¶ 37-40. Out of an abundance of caution, Small requested that Kittinger keep this communication
managers within the PRCA. Id. at 1. Small did not elaborate, however, if this alleged discrimination was based on a protected characteristic; what evidence she had confirming the other managers actually had higher salaries; and, assuming they did, what caused her to suspect this was a result of discrimination.4 This interaction ended with Kittinger noting he would “refrain from discussing [the communication] in-house in HR,” and Small does not dispute Kittinger‘s claim that he did not disclose their communication. Kittinger Email Chain at 1; see Def.‘s SOMF ¶ 38.
II. Employment Concerns Raised by the City
The record also makes clear that Styron and Vazquez quickly noted concerns with Small‘s job performance. For example, approximately twenty workdays after beginning her employment, Small asked for the City‘s policy on terminating probationary employees. Def.‘s SOMF ¶¶ 58-60. The City eventually learned Small asked for the policy because she wanted to recommend that the City terminate or otherwise reprimand Lori Loughman, an administrative assistant who reported to Small. Def.‘s SOMF ¶¶ 58-60;5 see also Loughman Decl. ¶¶ 3, 16; March 16 Email [ECF No. 43-18]. It is undisputed, however, that Small did not possess the authority to terminate Loughman. Def.‘s SOMF ¶ 61. Small and Loughman crossed paths again after Loughman took
leave to care for her elderly parents at the beginning of the COVID-19 pandemic. See Def.‘s SOMF ¶ 63. After this leave began, Small informed Loughman, through email, that Loughman would need to produce a doctor‘s note to return to work. See Small Decl. ¶ 13. Loughman claims this led to her feeling “unduly harassed” by Small. Loughman Decl. ¶ 14.6 Additionally, there is unrebutted evidence of discrete instances in which Styron appeared somewhat unsatisfied with Small‘s job performance. For example, Styron expressed
Most significantly, some of Small‘s duties were reassigned to Betton and Vazquez shortly after Small began working for the City. Def.‘s SOMF ¶¶ 67-68. The City argues this was necessary, at least in part, because tension had formed between other PRCA employees and Small. In support of this argument, several PRCA employees attest that they believe Small “displayed harassing behavior towards her subordinates and made off-color or condescending comments.” Loughman Decl. ¶ 9; Betton Decl. ¶ 14; Decl. of Notosha Lake [ECF No. 43-9] ¶ 6. Vazquez testified that “[t]here was a lot of tension when Mary Small worked in the office within the administrative role team.” Vazquez Dep. 40:14-15. Styron testified that he observed “issues with her and staff.” Tr. Dep. Cory Styron [ECF No. 43-6] 39:7-12. And Small herself acknowledged this tension several times. In her email to Kittinger, she noted that “people have told [her] that the Parks department environment is toxic” and that it was “very clear why.” Kittinger Email Chain at 4. Small also claimed in an email to Styron that one employee told others to “beware of” Small and to “avoid and not help” her. May 18 Email Chain at 1. This same email reflects that Small believed administrative staff “g[o]t very cold” if someone was seen talking with her. Id. And in her deposition, Small testified that there was “a lot of . . . friction” in the office, that Betton “made some comments that [Small] didn‘t particularly like,” and that “it got progressively worse.” Small Dep. 63:14, 131:15-132:1.7
III. Final Comment Relevant to Plaintiff‘s Hostile Work Environment Claims
The third and final incident relevant to Small‘s hostile work environment claims occurred in May 2020, when Small, Betton, and Felissa Yarns, a member of the City‘s human resources department, served on an interview panel together to interview a candidate for an opening at the PRCA. Def.‘s SOMF ¶ 22. Small claims that during a discussion between the three, Betton made a comment implying that “all African Americans[] are lazy.” Opponent‘s Statement of Material Facts [ECF No. 47] (“PSMF“) ¶ 98. Small now testifies the comment was to the effect “that Jamaicans . . . think that African Americans are lazy.” Small Dep. 138:4-9. The City disputes this comment was made. Reply
IV. Termination and Procedural History
Ultimately, the City decided to terminate Small. Vazquez and Styron gave initial recommendations regarding Small‘s potential termination, but the final decision to terminate Small was made by the City‘s human resources department. PSMF ¶ 85. The record does not reflect who within the human resources department made the decision to terminate Small, but Kittinger was not involved in the decision. Def.‘s SOMF ¶ 42. The City issued Small a formal termination letter on June 1, 2020, which stated that Small was being terminated due to her “failure to meet probationary expectations.”9 Termination Letter [ECF No. 43-19] at 1. Small then dual filed charges with the Florida Commission on Human Relations and the Equal Employment Opportunity Commission. Am. Compl. ¶¶ 9-10. After receiving a Right to Sue Letter, Small filed her action in Florida state court, and the City removed this action on September 24, 2021. See Notice of Removal [ECF No. 1]. Small‘s Amended Complaint asserts three claims against the
City: (i) discrimination on the basis of race due to a hostile work environment in violation of the Florida Civil Rights Act (“FCRA“); (ii) discrimination on the basis of race due to a hostile work environment in violation of Title VII of the Civil Rights Act of 1964; and (iii) retaliation in violation of Title VII of the Civil Rights Act of 1964. See generally Am. Compl.
LEGAL STANDARD
Summary judgment is rendered if the pleadings, discovery, disclosure materials on file, and any affidavits show there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. See
If there are any factual issues, summary judgment must be denied, and the case proceeds to trial. See Whelan v. Royal Caribbean Cruises Ltd., No. 12-22481, 2013 WL 5583970, at *2 (S.D. Fla. Aug. 14, 2013). Furthermore, when the parties “agree on the basic facts, but disagree about the inferences that should be drawn from these facts[,]” summary judgment “may be inappropriate.” Id. However, “[a] mere ‘scintilla’ of evidence” in support of the non-movant‘s position will not suffice. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990).
ANALYSIS
I. Hostile Work Environment
Small asserts hostile work environment claims under both
Title VII prohibits an employer from discriminating against an individual with respect to the person‘s “compensation, terms, conditions, or privileges of employment, because of such individual‘s race, color, religion, sex, or national origin.”
A plaintiff asserting a hostile work environment claim must establish that (1) the plaintiff “belongs to a protected group“; (2) the plaintiff was “subject to unwelcome harassment“; (3) the harassment was “based on a protected characteristic of the employee“; (4) the harassment
experienced “was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment“; and (5) there is a basis for holding the employer “responsible for such environment under either a theory of vicarious or of direct liability.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002).
The fourth element—the requirement that the harassment be sufficiently
The parties have several disputes relating to the comments contained in the Amended Complaint, including whether the at-issue statements were made, and if they were, what the comments might have been. These disputed facts are not material, however, because even accepting Small‘s version of events as true she has failed to establish her work environment was objectively hostile. Thus, while the Court recognizes the City challenges Small‘s version of events, the Court discusses the relevant facts in the light most favorable to Small.
Small only points to three comments made over the course of her employment, two of which occurred months before she was terminated, to support her claims. As a preliminary matter, the Court begins with Small‘s attempted reliance on the comment relating to “Jamaicans” made by the PRCA Advisory Board member. See Mot. at 4. The Court agrees with the City that Small may not rely on this comment. A plaintiff must establish that unwelcome harassment was “based on” the plaintiff‘s protected characteristic. Miller, 277 F.3d at 1275. Small admits she is not Jamaican, but she nonetheless implies she may support her hostile work environment claims with this comment because “Jamaicans . . . are African Americans.” See Resp. at 3. Given the absence of any record evidence that this comment was in fact about a group to which Small belongs—or was otherwise targeted at Small—the Court finds this argument unavailing.
However, even assuming Small may rely on the PRCA Advisory Board member‘s comment, she has still failed to establish her workplace was objectively hostile. Three comments made during a period of over three months is infrequent. See Brathwaite v. Sch. Bd. of Broward Cnty., Fla., 763 F. App‘x 856, 859 (11th Cir. 2019) (noting that during the relevant four-month period “there was only one instance of physical harassment and four racially-charged comments“); Johnson v. Booker T. Washington Broad. Serv., 234 F.3d 501, 509 (11th Cir. 2000) (describing roughly fifteen incidents over the course of four months as “not infrequent“). The comment regarding “Jamaicans” was made outside of Small‘s presence and, consequently, was also not directed at Small. See McCann v. Tillman, 526 F.3d 1370, 1379 (11th Cir. 2008) (stating that some racial epithets “were never directed” at the plaintiff nor “spoken in her presence“). Similarly, though Small was present to hear Betton‘s comment, this comment was not directed at Small, and—while insensitive—appears to have simply been a “mere offensive utterance.” Allen, 121 F.3d at 647. There is also no evidence the two comments made in Small‘s presence were made in a physically threatening way, and neither of the comments appear to have affected Small‘s job performance, as she completed both the meeting and site visit without further incident. Finally, the fact Small did not report the “CP time” comment at all and did not complain of Betton‘s comment beyond looking at Yarns emphasizes the lack of severity present here. See Ricks v. Indyne, Inc., No. 21-13051, 2022 WL 8022536, at *4 (11th Cir. Oct. 14, 2022) (noting the plaintiff did not report harassment to her superiors). Thus, evaluating the objective hostility of Small‘s work environment, the factors weigh in favor of the City.
In sum, viewing the factual contentions in the light most favorable to Small, a reasonable jury could not find these three comments sufficient to establish that racial epithets were amply “commonplace, overt and denigrating” to render Small‘s work environment hostile. Edwards, 49 F.3d at 1521-22 (citation omitted). These comments are merely “[i]solated or sporadic incidents” that are not the concern of Title VII. Shine, 2023 WL 1099766, at *3. Thus, summary judgment in favor of the City as to Small‘s hostile work environment claims is warranted.
II. Retaliation
Title VII prohibits an employer from discriminating against an employee both “because [s]he has opposed any practice made an unlawful employment practice by [Title VII],” and “because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under” Title VII.
Where a plaintiff does not rely on direct evidence of discrimination, courts use the McDonnell Douglas framework to analyze a claim of retaliation.11 E.g., Smelter v. S. Home Care Servs., 904 F.3d 1276, 1293 (11th Cir. 2018). First, the plaintiff must establish a prima facie case of retaliation by demonstrating (1) she “engaged in a statutorily protected activity“; (2) she “suffered an adverse employment action“; and (3) there is “a causal link between the protected activity and the adverse action.” Bryant v. Jones, 575 F.3d 1281, 1307-08 (11th Cir. 2009). Once the plaintiff establishes a prima facie case, there is a presumption of discrimination, and the employer must articulate “a legitimate, nondiscriminatory reason” for the adverse action to rebut the presumption. Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1312 (11th Cir. 2016). If an employer offers a sufficient nondiscriminatory reason, the burden shifts back to the plaintiff, who must put forward evidence that the employer‘s given reason was a pretext for discrimination. Brown v. Ala. Dep‘t of Transp., 597 F.3d 1160, 1174 (11th Cir. 2010). It is at this point that “the plaintiff‘s burden merges with the ultimate burden of persuading the court that the plaintiff has
been the victim of intentional discrimination.” Furcron, 843 F.3d at 1311 (cleaned up) (quoting Smith v. Lockheed–Martin Corp., 644 F.3d 1321, 1326 (11th Cir. 2011)). This framework serves to “filter out particularly obvious cases and works to frame more clearly the specific issues to be litigated,” and the “critical decision” for the court to make is “whether the plaintiff has created a triable issue concerning the employer‘s discriminatory intent.” Flowers v. Troup Cnty., Ga., Sch. Dist., 803 F.3d 1327, 1336 (11th Cir. 2015) (alteration accepted) (internal quotation marks omitted).
The City argues it is entitled to summary judgment on Small‘s retaliation claim for two reasons: (1) Small has failed to establish a prima facie case of retaliation because she did not engage in statutorily protected activity; and (2) the City terminated her for a nondiscriminatory reason that was not pretextual. Mot. at 7-14. The Court agrees as to both arguments and addresses them in turn.
a. Plaintiff Has Not Established a Prima Facie Case
To qualify for protection under the opposition clause, the plaintiff‘s “opposition must be directed at an unlawful employment practice of an employer, not an act of discrimination by a private individual.” Butler v. Ala. Dep‘t of Transp., 536 F.3d 1209, 1214 (11th Cir. 2008) (quoting Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 959 (11th Cir. 1997)). A plaintiff has only engaged in protected activity if the plaintiff “had a good faith, reasonable belief that the employer was engaged in unlawful employment practices.” Furcron, 843 F.3d at 1311 (quoting Little, 103 F.3d at 960). As with a hostile work environment claim, this “includes both a subjective and an objective component.” Id. The plaintiff must show both that: (1) she subjectively believed her employer engaged in an unlawful practice, and (2) that this belief “was objectively reasonable in light of the facts and record presented.” Little, 103 F.3d at 960. In determining whether a plaintiff reasonably believed an employer engaged in an unlawful practice, a court must look to substantive law, because “if . . . plaintiffs are free to disclaim knowledge of the substantive law, the reasonableness inquiry becomes no more than speculation regarding their subjective knowledge.” Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1317 (11th Cir. 2002) (alteration accepted) (quoting Harper, 139 F.3d at 1388 n.2).
Small does not dispute that she never reported the comment allegedly made by Mike Wharton. Def.‘s SOMF ¶ 20. As to the other two comments, Small puts forward four instances of purportedly protected activity: three instances in which she reported the PRCA Advisory Board member‘s comment and one in which she reported Betton‘s comment. Resp. at 4-5. Even assuming these events occurred as Small argues they did, none of these instances qualify as protected activity.
i. Reports of the PRCA Advisory Board Member‘s Comment
Small claims she reported the comment made by the PRCA Advisory Board member on three occasions: twice orally—once to Vazquez and once to Styron—and once via email to Kittinger. Resp. at 4-5.
1. Reports to David Vazquez and Cory Styron
Small‘s deposition testimony reflects she reported the comment to Vazquez to “get[] it off [her] plate.” Small Dep. 95:6-11. Additionally, Small testified that she simply “told [Styron] that [she] reported it to” Vazquez and that she was “now . . . telling him.” Small Dep. 88:7-15. Even assuming Small subjectively believed the City was engaged in an unlawful employment practice, her belief was not objectively reasonable. Complaints about single instances of “uncalled for, ugly, racist statement[s]” are not the kind of activity protected by Title VII. See Butler, 536 F.3d at 1213. As the Eleventh Circuit recognized in Little, “a racially derogatory remark by a co-worker, without more, does not constitute an unlawful employment practice.” Little, 103 F.3d at 961. And “[w]here binding precedent squarely holds that particular conduct is not an unlawful employment practice by the employer . . . an employee‘s contrary belief that the practice is unlawful is unreasonable.” Butler, 536 F.3d at 1214. While the PRCA Advisory Board member is not a co-worker, Small otherwise opposed the same conduct the Eleventh Circuit squarely held was not an unlawful employment practice in Little: a single derogatory remark. While Small might have believed she was opposing an unlawful employment practice, this belief was not objectively reasonable, and therefore her activity was not protected by Title VII.
2. Email to Kittinger
The parties agree the “ethnically charged comment” mentioned in Small‘s email to Kittinger is the PRCA Advisory Board member‘s comment. Accordingly, the Court has already explained why Small did not possess an objectively reasonable belief she was opposing an unlawful employment practice in making Kittinger aware of this comment. As to Small‘s other claim of discrimination, while the email references “systemic discrimination,” Small offers no evidence to support a reasonable belief that—even assuming the other managers in her department were paid more than Small—the reason for this disparity was discriminatory. It appears
However, nowhere in the email does Small say what characteristic this discrimination was based on, and without personal knowledge or proof of discrimination, Small could not have an objectively reasonable belief the City was engaged in unlawful discrimination. See Coutu v. Martin Cnty. Bd. of Cnty. Comm‘rs, 47 F.3d 1068, 1074 (11th Cir. 1995) (noting that the plaintiff, during an underlying grievance hearing, “made no allegation and offered no proof of race or national origin discrimination“); Diamond v. Morris, Manning & Martin, LLP, 457 F. App‘x 844, 846 (11th Cir. 2012) (holding the plaintiff did not have a reasonable belief her employer engaged in race discrimination without knowing what work white paralegals were assigned); Harris v. Dep‘t of Child. & Fams., No. 19-62842, 2021 WL 6750969, at *4 n.3 (S.D. Fla. Apr. 16, 2021) (doubting whether the plaintiff engaged in a protected activity where the plaintiff referenced “harassment” and a “hostile work location,” and stated the employer‘s activities “appear[ed] biased and where EEOC maybe [sic] applicable” but did not reference “discrimination, harassment, or bias based on a protected characteristic” (emphasis added)).
A reasonable factfinder could not find Small had an objectively reasonable belief she was opposing an unlawful employment practice, and thus her communication to Kittinger also fails to qualify as protected activity.13
ii. “Report” of Betton‘s Comment
Small also argues she was retaliated against because she reported Betton‘s comment to Felicia Yarns, the human resources
The objective unreasonableness of Small‘s belief is further underscored by the method through which she claims to have reported this comment. Small argues she reported this comment by simply “look[ing] at Felicia Yarns.” Resp. at 5. An employee claiming to have engaged in protected activity, however, must have communicated the employee‘s belief that the employer was engaged in discrimination. Furcron, 843 F.3d at 1311. Where the employee voices a complaint but does not reference discrimination or a protected characteristic, the employee‘s opposition will not constitute protected activity. See Rodriguez v. Miami Dade Cnty. Pub. Hous. & Cmty. Dev., 776 F. App‘x 625, 626 (11th Cir. 2019) (noting plaintiff “never specified that the harassment was based on, or involved derogatory comments about, her national origin“). Even allusions to racism—without further reference to discrimination—do not constitute protected activity. See Ceus, 803 F. App‘x at 246 (noting that while plaintiff “decrie[d] racism” within his employer he did “not tie that assertion to any specific discrimination he or anyone . . . faced“). Assuming Small‘s use of a mere “look” constitutes reporting this conduct—which the Court severely doubts—it nonetheless could not convey the critical information required by caselaw: that Small was opposing what she believed to be a discriminatory practice. Thus, evaluating the objective unreasonableness of Small‘s belief in light of the substantive law, see Weeks, 291 F.3d at 1317, the Court holds that Small did not have an objectively reasonable belief she was opposing an unlawful employment practice. Therefore, she was not engaging in protected activity when she looked at Yarns. Taken together with the fact that Small was not engaged in protected activity when she reported the PRCA Advisory Board member‘s comment, Small has failed to establish any prima facie case of retaliation.
b. Plaintiff Has Not Shown Pretext
Assuming a reasonable factfinder could find Small has established a prima facie case of retaliation, Small has nevertheless failed to establish that the City‘s legitimate, nondiscriminatory reasons for her termination were pretextual.
i. Nondiscriminatory Reasons
Once a plaintiff establishes a prima facie case, the employer must offer “a legitimate, nondiscriminatory reason”
The City has offered several explanations for Small‘s termination, namely that Small was “not a good fit for the PRCA” and “lacked a fundamental understanding of her role.” Mot. at 10-11. While some of the bases for these determinations are disputed, a review of the evidence shows that the City has easily met the low bar of producing a nondiscriminatory reason for Small‘s termination. The City has offered evidence that tension formed between Small and her subordinates; other PRCA employees felt Small displayed harassing behavior; and Small‘s administrative functions needed to be reassigned.14 Additionally, Styron testified that he felt Small “really never focused on her job,” partly because Small attempted to help obtain a grant for the City unrelated to the PRCA. Styron Dep. 39:7-25. This, along with other undisputed evidence in the record, easily meets the City‘s obligation to produce a nondiscriminatory reason for Small‘s termination.15
ii. Pretext
Once a defendant has proffered a nondiscriminatory reason for its action, the plaintiff must then show that the “proffered reason was merely a pretext to mask discriminatory actions.” Bryant, 575 F.3d at 1308. If the employer‘s purportedly nondiscriminatory reason “might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason.” Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000). A plaintiff can do so by demonstrating “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer‘s proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.” Jackson v. Ala. State Tenure Comm‘n, 405 F.3d 1276, 1289 (11th Cir. 2005) (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)). An employer‘s proffered reason “is not pretext for discrimination ‘unless it is shown both that the reason was false, and that discrimination was the real reason.‘” Springer v. Convergys Customer Mgmt. Grp., 509 F.3d 1344, 1349 (11th Cir. 2007) (quoting Brooks v. Cnty. Comm‘n of Jefferson Cnty., Ala., 446 F.3d 1160, 1163 (11th Cir. 2006)). Courts must “remain mindful that it is the plaintiff‘s burden to provide evidence from which one could reasonably conclude that but for her alleged protected act, her employer would not have fired her.” Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1136 (11th Cir. 2020).
Small has not offered sufficient evidence to establish the City‘s reasons were pretextual. The only probative evidence Small cites is the statement allegedly made by Vazquez threatening to terminate her after she reported the PRCA Advisory Board member‘s comment. However, this single comment is a mere scintilla of evidence when weighed against the plethora of evidence proffered by the City supporting its legitimate, nondiscriminatory reasons for terminating Small. Walker, 911 F.2d at 1577. This is especially so given that Vazquez only provided an initial opinion on Small‘s termination, after which Styron gave his own recommendation and the human resources department made the final decision. Small has not proffered sufficient evidence that would allow a reasonable jury to find that “but for her alleged protected act” the City would have retained her. Gogel, 967 F.3d at 1136.
First, Small argues the City‘s proffered reasons are inconsistent with her termination letter, which states that she “fail[ed] to meet probationary expectations.” Termination Letter at 1. While this language fails to specify what expectations were not met, it is not inconsistent with the City‘s claim that Small was not a good fit for the PRCA and lacked an understanding of her job functions. The City‘s probationary policy explicitly states the probation period is used “to determine [an employee‘s] fitness or ability to perform the specifications of any position,” and Small‘s administrative duties clearly had to be reassigned shortly after she began working for the City. Probationary Policy [ECF No. 43-7]. Second, the Court fails to see how the phrase “probationary expectations” can be inconsistent with the City‘s desire to have an employee who is a “good fit” within the PRCA—presumably, any employee, especially a managerial employee, would be expected to fit in with the organization and not cause tension within it. See Anterio v. City of High Springs Fla., 762 F. App‘x 891, 899 (11th Cir. 2019) (holding that the employer established the plaintiff was “not the right fit for the department” in part because the plaintiff‘s “management style was not popular and . . . morale within the department was low“). As both reasons would clearly motivate a reasonable employer, Small must meet them head on and offer sufficient evidence they are both false and not the real reasons for her termination, which she has not done.
Small next argues she was never made aware of her probationary status and did not sign a document “acknowledging her job description,” and it is therefore “implausible” she could not be a good fit when she was “not given the necessary information to perform.” Resp. at 7. Small‘s own deposition testimony, however, reflects that she was aware she was on probation. See Small Dep. 50:19-51:10. Nevertheless, assuming she was unaware of her probationary status, Small essentially argues it was unfair to terminate her if she was not made aware of her job description. Small has again failed to meet the City‘s reasons head on and offer evidence to rebut them. Title VII does not prohibit employers from unwise employment practices—only discriminatory ones. Flowers, 803 F.3d at 1338. The fact Small might not have been aware she was on probation does not establish the City‘s proffered reasons are pretext. Indeed, Small‘s claim that she was not aware of her probationary status or
Finally, Small raises the fact that the City apparently informed her she would not be precluded from reapplying for employment with the City. Resp. at 7. This again fails to present the required weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions Small must put forward. There is nothing inconsistent with terminating Small for failing to perform her job expectations and allowing her to apply for a future employment opportunity with the City.
In sum, Small has failed to establish a prima facie case of retaliation. And assuming Small has established a prima facie case, she has nonetheless failed to rebut her employer‘s nondiscriminatory reasons for terminating her. The City is thus entitled to summary judgment as to Small‘s retaliation claim.
CONCLUSION
For the foregoing reasons, the Court concludes the City is entitled to summary judgment on all of Small‘s claims. Accordingly, it is hereby
ORDERED AND ADJUDGED that the City‘s Motion [ECF No. 44] is GRANTED. Pursuant to Rule 58 of the Federal Rules of Civil Procedure, final judgment will be entered by separate order.
DONE AND ORDERED in Miami, Florida, this 28th day of February, 2023.
RODOLFO A. RUIZ II
UNITED STATES DISTRICT JUDGE