
    Garry L. HOWARD, Plaintiff, v. SUNNILAND CORPORATION and Scott Ortegon, Defendants.
    Civ. No. 2:16-321-FtM-PAM-MRM
    United States District Court, M.D. Florida, Ft. Myers Division.
    Signed December 19, 2017
    Filed 12/20/2017
    
      Esmond J. Lewis, Esmond Lewis, PA, Ft. Myers, FL, for Plaintiff.
    Cheryl L. Wilke, Kristen Dana Pérkins, Daniel A. Krawiec, Thaddeus A. Harrell, Hinshaw & Culbertson, LLP, Ft. Lauder-dale, FL, Jeffrey M. Novell, Hinshaw & Culbertson, LLP, Tampa, FL, for Defendants.
    
      
      . Howard alternates between the titles warehouse supervisor ánd warehouse manager. The Court uses the warehouse supervisor title.
    
   MEMORANDUM AND ORDER

Paul A. Magnuson, United States District Court Judge

This matter is before the Court On Defendants’ Motion for Summary Judgment. For the following reasons, the Motion is granted.

BACKGROUND

Defendant Sunniland Corporation is a roofing supply company with more than 20 locations in Florida and Georgia. (Ortegon Dep. (Docket No. 59-3) at 8.) Sunniland’s office in Naples, Florida (“Sunniland Naples”) employs a workforce of drivers, helpers, and sales associates, with Defendant Scott Ortegon serving as General Manager. (Id. at 7-8,12.)

In October 2007, Plaintiff Garry Howard was hired as a truck driver at Sunniland Naples. (Howard Dep. (Docket No. 59-2) at 26.) Howard is African American. (Ortegon Dep. at 25.) As a truck driver, Howard delivered roofing materials-to sites and performed transfer runs to other Sunni-land locations. (Howard Dep. at 29-30.) Additionally, Howard and other drivers work in the warehouse, helping customers unload material and preparing for deliveries. (Ortegon Dep. at 52-53.)

In 2009, Howard claims that he was promoted to the warehouse supervisor position. (Howard Dep. at . 30.) About one year later, Howard claims, that he was the victim of four , instances of racial discrimination. On April 22, 2010, he alleges that Ortegon and T.C. Hayes made a racially discriminatory joke, in .his presence. (Compl. (Docket No. 1) ¶ 14(g).) On May 7, 2010, he claims that Hayes approached him in an aggressive and threatening manner. (Id. ¶ 14(i).) Four days later, Howard claims that Hayes referred to him,as a “f-cking n-gger.” (Id. ¶ 14(j).) . About two weeks later, he alleges that an unnamed Sunniland employee referred to a lawn mower as being “n-gger rigged” in his presence. (Jd. ¶ 14(k).) Howard informed Ortegon of these instances of racial discrimination' on June 13, 2010, and he claims-that Ortegon demoted him back to the position of truck driver the following day. (Howard Dep. at 39-40.)

On September 1, 2010, Howard filed a charge of discrimination with the Equal Employment Opportunity Commission, alleging a hostile work environment and racial discrimination. (Compl. Ex. B.) Howard alleges that he continued to experience racial discrimination at Sunniland Naples while his EEOC charge was pending. (Id. ¶¶ 14(r)-(s); Howard Dep. at 128-32, 149-52.)

On April 16, 2012, Ortegon documented a written warning in Howard’s employment record for three consecutive unexcused absences from work. (Howard Dep. Ex. 7.) The warning referred to Sunni-land’s Handbook, which states that an employee may be terminated for “being absent without proper notice or excuse.” (Id.) Then on March 27, 2013, Ortegon documented another written warning because Howard failed to report his absences from work on March 25 and 26, 2013. (Id. Ex. 12.) Howard was also absent on March 22, 2013. (Id. Ex. 2.)

On April 1, 2013, Howard again failed to report for work. Ortegon terminated Howard’s employment the following day based on his “repeated no call/no show behavior” and his representations that he “could no longer perform [his] duties.” (Id.)

In 2014, the EEOC issued a letter of determination, concluding that reasonable cause existed “to believe [Defendants] discriminated against [Howard] because of his race” but “the evidence obtained is insufficient to establish violations of Title VII, in regards to retaliation.” (Compl. Ex. C.) Howard filed a five-count Complaint in May 2016. The Court dismissed Howard’s hostile work environment claim (Count I) and retaliation by demotion (Count IV) against Ortegon following Defendants’ motion to dismiss. (Docket No. 35.) Thus, the remaining claims before the Court are intentional discrimination by demotion against Sunniland (Count II), intentional discrimination by termination against Sun-niland and Ortegon (Count III), retaliation by demotion against Sunniland (Count IV), and retaliation by termination against Sun-niland and Ortegon (Count V). (Compl. ¶¶ 29-68.)

DISCUSSION

Summary judgment is proper only if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), The Court must view the evidence and the inferences that may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999).

The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. O’Ferrell v. United States, 253 F.3d 1257, 1265 (11th Cir. 2001). When opposing a motion for summary judgment, the nonmoving party must demonstrate the existence of specific facts in the record that create a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials and must do more than simply show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

A. Racial Discrimination

Howard claims that Sunniland intentionally discriminated against him by demoting him (Count II) and that Sunni-land and Ortegon intentionally discriminated against him by terminating him (Count III), in violation of 42 U.S.C. §§ 1981, 2000e-2(a). (Compl. ¶¶ 29-50.) A prima facie racial discrimination case requires Howard to show that “(1) [ ]he belongs to a protected class; (2) []he was qualified to do the job; (3) [ ]he was subjected to adverse employment action; and (4) [his] employer treated similarly situated employees outside [his] class more favorably.” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (citing Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003)). He may satisfy his burden “by presenting direct evidence of an intent to discriminate” or by “circumstantial evidence using McDonnell Douglas’s burden-shifting framework.” Id. at 975-76.

“Direct evidence is evidence that establishes the existence of discriminatory intent behind the employment decision without any inference or presumption. Therefore, remarks by non-decisionmakers or remarks unrelated to the decisionmak-ing process itself are not direct evidence of discrimination.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) (citations omitted). Here, the racially charged remarks on May 11 and 28, 2010, were not made by a decisionmaker, and it is not clear that Hayes’s conduct on May 7, 2010, was racially motivated. Howard’s allegation about the April 22, 2010, remark may be clear discrimination by a decision-maker, but this .isolated remark is, by itself, insufficient to establish direct evidence of racial discrimination. See Rojas v. Florida, 285 F.3d 1339, 1343 (11th Cir. 2002) (stating that isolated remarks “are not direct evidence of discrimination”). Howard must therefore establish his prima facie case through circumstantial evidence.

Howard claims that the four racially charged remarks and Sunniland’s maltreatment following his alleged demotion provide sufficient circumstantial evidence. (PL’s Opp’n Mem.-(Docket No. 59) at 15.) Defendants do not dispute that Howard belongs to a protect class.

1. Count II: Discrimination by Demotion

Howard argues that Defendants discriminated against him by demoting him from warehouse supervisor to truck driver. Defendants argue that Howard cannot demonstrate that he was qualified to do a job that did not exist, that he suffered no adverse employment because he was not demoted, and that he failed to identify any similarly situated employee outside his class who was treated more favorably.

Whether Howard can demonstrate that he was qualified to do the job of a warehouse supervisor and whether he suffered an adverse employment action turns on whether -the warehouse supervisor position ever existed. Generally, a plaintiff satisfies the prima facie burden of proving that he is qualified for a position if he has held “for a significant period of time.” Crapp v. City of Miami Beach, 242 F.3d 1017, 1020 (11th Cir. 2001) (quotation omitted). And demoting an employee is an. adverse employment action. Crawford, 529 F.3d at 970 (quoting Stavropoulos v. Firestone, 361 F.3d 610, 617 (11th Cir. 2004)).

Here, Sunniland- contends that it has never employed a warehouse supervisor because no’ such position exists. (Ortegon Dep. at 47-48.) Howard’s only evidence that he was employed as the warehouse supervisor is his own self-serving testimony that he was promoted to the position in 2009. (Howard Dep. at 30.) But he also testified that his formal job title did not change to warehouse ‘ supervisor. (Id. at 33.) And his pay and benefits did not change after the alleged promotion. (Id. at 43-44.) Howard’s testimony is insufficient to withstand summary judgment on this issue. See In re Buescher, 783 F.3d 302, 308 (5th Cir. 2015) (“[A] party’s uncorroborated self-serving testimony cannot prevent summary judgment, particularly if the overwhelming documentary evidence supports the opposite scenario.” (quotation omitted)); Dalton v. Severson, No. 2:13-CV-734, 2016 WL 1271467, at *6 (M.D. Fla. Apr. 1, 2016) (stating that “self-serving allegations,” unsupported by the record, “are insufficient to create a genuine issue of material fact”). Because Howard has failed to proffer evidence sufficient to create a genuine issue of fact regarding the - existence of the warehouse supervisor position, the Court concludes that he cannot establish that he was qualified for the position or that he suffered an adverse employment action.

Howard’s racial discrimination claims fail- notwithstanding his alleged demotion because he has not identified .a similarly situated employee outside of his class who was treated more favorably. Howard contends that his “failure to produce a comparator does not - necessarily doom [his] case.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). But in the absence of identifying a comparator, Howard must “presents circumstantial evidence that creates a triable issue concerning the employer’s discriminatory intent.” Id. (citation omitted). A triable issue of fact must establish “a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination.” Id. (quotation and footnote omitted). The inference must not be a mere suspicion or a guess. Id. n.25 (quotation omitted). Howard has not presented sufficient circumstantial evidence of discriminatory intent. Thus, he must identify a similarly situated employee outside of his class who was treated more favorably to survive summary judgment.

Howard - has not identified .any warehouse supervisor who was appointed after his alleged demotion or termination, claiming that he was “not sure” if someone replaced him. (See Howard Dep. at 126.) Before his alleged promotion, Howard claims that an- individual named “Wilkie Batalis” held the position, but Howard could not spell his name and there is no other record that Batalis held the warehouse supervisor position—or any other position—at Sunniland. (Howard Dep. at 31.) Defendants assert that a former employee, Wilkie Tanellis, is the individual to whom Howard refers, but Tanellis never held a warehouse supervisor position. Regardless, Tanellis is African American. (Ortegon Dep, at 26.). Thus, even if Tanel-lis was a similarly situated person, he was not outside of Howard’s class. Count II is without merit and is dismissed.

2. Count III: Discrimination by Termination

Howard also claims that Defendants discriminated against him by terminating him from his position as a truck driver. Defendants do not dispute that Howard suffered an adverse employment action or that he was qualified for the position of truck driver, but they contend that. Howard has failed to identify a similarly situated individual outside his class who was treated differently.

Howard again claims that he need not identify a similarly situated individual because. he has established “sufficient evidence to create an inference of discrimination.” (Pl.’s Opp’n Mem, at 16.) He also appears to argue that Defendants’ discriminatory intent is clear because they terminated him three years after he filed a charge of discrimination. A three-year difference from the statutorily protected activity and the adverse employment action, by itself, cannot provide a basis for surviving summary judgment. See Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006) (“[I]n the absence of any other evidence of causation, a three and one-half month proximity between a protected activity and an adverse employment action is insufficient to create a jury issue on causation.”) (citation omitted). As discussed above, Howard must identify a similarly situated individual outside of his class who was treated differently to establish a prima facie case of employment discrimination. Because he has failed to do so, this count is without merit and is dismissed,

B. Retaliation Claims

Howard claims that Sunniland and Ortegon retaliated against him by demoting him (Count IV) and ultimately terminating him (Count V), in violation of 42 U.S.C. §§ 1981, 2000e-2(a). (Compl. ¶¶51-68.) “To establish a prima facie case of retaliation, the plaintiff must show that: (1) he engaged in. statutorily protected activity; (2) he experienced an adverse employment action; and (3) there is a causal connection between the protected activity and the adverse action.” Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir. 2006) (citations omitted). “Title VII retaliation claims must be proved according to traditional principles of but-for causation .... ” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013).

1. Count IV: Retaliation by Demotion

Howard contends that Defendants demoted him because he reported that he was “being forced to work in a hostile work environment and being intimidated.” (Compl. ¶ 53.) He reported alleged instances of discrimination to Ortegon on June 13, 2010, and he claims that he was demoted the following day. (Howard Dep. at 39-40.)

Defendants contend that Howard did not engage in statutorily protected activity because he never actually reported employment discrimination to Ortegon. (Defs.5 Supp. Mem. (Docket No. 53) at 21.) But whether he reported employment discrimination is a question of fact that cannot be resolved at summary judgment. Moreover, Title VII protects “individuals who explicitly or implicitly communicate[ ] a belief that the practice constitutes.unlawful employment-discrimination.” Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1311 (11th Cir. 2016) (alteration in original) (quotation omitted). Howard is not required to show that the conduct was actually unlawful, only that the conduct is “close enough to support an objectively reasonable belief that it is.” Id. (quotation omitted). This "argument is without merit.

But, as discussed above, Howard cannot establish that he experienced an adverse employment action because hé has failed to show that he was actually demoted. Count IV is dismissed.

2, Count V: Retaliation by Termination

Howard claims that Defendants terminated him in' retaliation for filing an EEOC charge of discrimination. (Compl. ¶62.) Howard filed his EEOC charge on September 1, 2010, and Defendants terminated his employment on April 2, 2013. (Id. Ex. B; Howard Dep. Ex, 2.) Defendants do not dispute that Howard engaged in a statutorily protected activity or that his termination is an adverse employment action. Rather, Defendants argue that Howard failed to establish but-for causation between the two events.

Howard seems to argue the causal connection is clear because Defendants created “a false case that he was a ‘no-call/no-show’ ” after he filed his EEOC charge. (Pl.’s Opp’n Mem, at 19-20.) But even if Defendants’ basis for terminating Howard was erroneous, that does riot automatically establish but-for causation of retaliation.

Howard’s other circumstantial evidence is unconvincing. As discussed above, nearly three years had, elapsed from the time that Howard filed his EEOC charge to his termination, and the- other circumstantial evidence of racial discrimination occurred before he filed his EEOC charge. This Count is dismissed because Howard failed to establish a causal connection between- his protected activity and the alleged retaliation.

CONCLUSION

Howard has not provided sufficient evidence to raise a genuine question of fact on his claims of discrimination and retaliation. Accordingly, IT IS HEREBY ORDERED that:

1. Defendants’ Motion for Summary Judgment (Docket No. 53) is GRANTED; and
2. The remaining Counts II, III, IV, and V.in,the Complaint (Docket No. 1) are DISMISSED with prejudice.

The Clerk shall enter judgment accordingly, terminate all remaining deadlines and motions as moot, and close the file. 
      
      . The Court terminated T.C. Hayes as a defendant after Howard failed to prosecute the case as to him. (Docket No. 5 T.)
     