Case 1:15-cv-20998-JAL Document 77 Entered on FLSD Docket 06/30/2016 Page 1 of 42

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 15-20998-CIV-LENARD/GOODMAN
ABE BAILEY,
Plaintiff,
v.
OFFICE OF CRIMINAL CONFLICT
AND REGIONAL COUNSEL, THIRD
REGION OF FLORIDA, an entity of
the State of Florida, and EUGENE
ZENOBI, an Individual,
Defendants.
____________________________________/
ORDER GRANTING DEFENDANTS SECOND CORRECTED MOTION FOR
FINAL SUMMARY JUDGMENT (D.E. 70)
THIS CAUSE is before the Court on Defendants Office of Criminal Conflict and
Regional Counsel, Third Region of Florida (RC3) and Eugene Zenobis (Zenobi)
Second Corrected Motion for Final Summary Judgment, (Motion, D.E. 70), filed May
3, 2016. Plaintiff, Abe Bailey, filed a Response on May 16, 2016, (Response, D.E. 74),
to which Defendants filed a Reply on May 26, 2016, (Reply, D.E. 76). Upon review
of the Motion, Response, Reply, and the record, the Court finds as follows.

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I.

Background1
Plaintiff is a black lawyer who was admitted to the Florida Bar on June 25, 1985.

(Def.s Facts 3.) He worked for RC3 from January 2008 until he was terminated on
March 21, 2014. (Def.s Facts 1; Pl.s Facts 1.) RC3 is a state agency that provides
legal representation to persons entitled to court-appointed counsel in certain types of
cases. (Def.s Facts 2.)
In January 2008, then Regional Counsel for RC3, Joseph George, hired Plaintiff to
handle criminal cases. (Id. 4-5.) Later in 2008, George hired Kellie Peterson, a white
female, to handle criminal cases. (Id. 7.) In 2010, George hired Eugene Zenobi, a 63
year-old white male, to handle criminal cases. (Id. 6; Pl.s Facts 6.)
In the fall of 2011, the position of Regional Counsel came up for appointment
pursuant to Florida Statute, and Zenobi applied for the position. (Id. 10.) In September
2011, George fired Zenobi, Peterson, and Petersons legal assistant, Jorge Sanchez. (Id.
10-11.) After they were terminated from RC3, Zenobi and Peterson began working in
private practice, sharing office space and the services of Jorge Sanchez. (Id. 12.)
In October 2011, Governor Rick Scott named Zenobi as Regional Counsel for
RC3, effectively firing Joseph George. (Id. 15.) Zenobi officially became Regional
Counsel on October 4, 2011. (Id. 16.)

The following facts are gleaned from Defendants Statement of Undisputed Facts,
(Def.s Facts, D.E. 62), and Plaintiffs Response to Defendants Statement of Material Facts
and Additional Disputed Facts, (Pl.s Facts, D.E. 75). All facts are undisputed unless
otherwise noted.

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Upon assuming his responsibilities, Zenobi hired Peterson and Jorge Sanchez to
return to RC3. (Id. 17.) Peterson returned to RC3 on October 11, 2011. (Peterson
Dep. (D.E. 65-8) at 17:18.) Peterson testified that on October 11, 2011 she was offered
the position of Chief Assistant Regional Counsel.2, 3 (Id. at 17:17-19.) Plaintiff testified
that he became aware that Peterson was his supervising attorney sometime in October
2011.4 (Def.s Facts 19; Bailey Dep. (D.E. 65-1) at 71:21.) It is undisputed that
Plaintiff never expressed any interest in becoming Chief Assistant Regional Counsel.
(Def.s Facts 20.)
In November or December 2011, Plaintiff was reduced from a full-time employee
making $85,000 per year to a part-time employee making $50,000 per year. (Id. 25;
Zenobi Dep. at 95:2-12.) Around the same time, RC3 removed Plaintiff from death
penalty cases. (See id.; Bailey Dep. at 218:4-23; Zenobi Dep. 96:20-24; 100:13-16.)
On February 12, 2012, Peterson wrote a memorandum to Zenobi expressing her
concern about Plaintiffs ineffectiveness, low standard of advocacy, and attorney-client
2

However, because the previous Chief Assistant was still employed, Peterson did
not technically become Chief Assistant until December 1, 2011. (Id. at 17:14-15.)
3

Defendants refer to Petersons position as both Assistant Chief Regional

Counsel and Chief Assistant Regional Counsel. (See, e.g., Def.s Facts 17, 19.) Peterson
testified that her position is Chief Assistant Regional Counsel, (see Peterson Dep. (D.E. 65-8 at
17:12), so the Court will utilize that title.
4

Plaintiff purports to dispute this statement, but at his deposition, he was asked
when he first became aware that Peterson was his supervising attorney. (D.E. 65-1 at 71:6-8.)
He answered that he became aware shortly after Zenobis appointment. (Id. at 71:17-18.)
Q.
A.

So sometime in October 2011?

October, yes.

(Id. at 71:20-21.)

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communications and output. (Def.s Facts 30-31.) The memo raises concerns about
two specific cases in which Plaintiff had done little or no work, and had lost important
mitigation evidence. (Id. 32-33.)
In June 2013, RC3 implemented a new policy regarding its lawyers accepting
murder cases. (Id. 34.) Pursuant to that policy, for first-degree murder cases, every
RC3 lawyer was instructed to seek an oral representation by the State on the record as to
whether they [sic] will be seeking the death penalty. (Id. 35.) If the State was not
seeking the death penalty, the lawyer was to send Peterson an email alerting her to that
fact. (Id.) If the State was seeking the death penalty, or if it did not know whether it was
seeking the death penalty, the lawyers were instructed: DO NOT ACCEPT THE
APPOINTMENT. Advise the court that you cannot accept, reset the case for [Peterson]
and forward [Peterson] the file.5 (Id.) Each RC3 lawyer was instructed to call, email, or
text Peterson as soon as possible. (Id. 37.) With respect to notifying Peterson, the
email announcing the policy indicated that the lawyers can also go through Celeste
[Mills, Petersons assistant], just please let me know. (D.E. 65-4 at 37.)
On August 29, 2013, Plaintiff was given a written counseling and placed on
probation to end in February 2014. (Pl.s Facts 38; Def.s Facts 38; Counseling, (D.E.
65-12) at 1-3.) The write-up identified several issues, including:

For second-degree murder cases, the policy was the same but at the time of
appointment, the lawyer was to ask the State whether it intended to file an indictment. (Id. 36.)
If it did not, the lawyer was to note the States representation and accept the case. (Id.) If it did
intend to file an indictment, or if it did not know, the lawyer was to reset and notify Peterson
immediately, and to continue resetting until the State answered. (Id.)

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1. [U]nprofessional conduct toward courtroom personnel in his assigned RC3

division. Specifically, Sharon Jordan, boot camp officer and aunt of Plaintiffs
client, Terin Fuller, complained that Plaintiff was rude to her and provided little
communication regarding Fullers case. The write-up also states that Plaintiff has
consistently shown a lack of professionalism and respect in his communication
with clients and their family members . . . . (Counseling at 1.)
2. [U]nprofessional conduct toward Chief Assistant Regional Counsel Kellie
Peterson by failing to communicate with her regarding his former client Register
Holsendorff when specifically directed to do so numerous times and while under
her direct supervision in the felony division. (Id.)
3. Failure to provide effective assistance of counsel to RC3 clients, specifically
Register Holsendorff and Terin Fuller, both first degree murder cases. With
respect to Holsendorff, a client with a very long, well documented history of
mental retardation and mental illness with previous adjudications of
incompetency, mental retardation, commitment to state psychiatric facilities, and
dismissal of charges due to [his] retardation and mental illness[,] Plaintiff did no
work for fourteen months, the court and State delayed a competency hearing six
times at Plaintiffs request, and during that time Plaintiff hired no experts,
requested no medical or psychological records and never determined any family
history. With respect to Fuller, Plaintiff failed to advise Fuller of the States
willingness to enter time sensitive plea negotiations that would ultimately affect

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the amount of time he would potentially be offered and whether or not he would
be indicted for first degree murder and face the death penalty[.] (Id. at 1-2.)
Plaintiff disputed the issues raised in the write-up and denies the allegations made
therein. (Pl.s Facts 38.)
Defendants state that Plaintiff refused to speak with Kellie Peterson after she was
hired as Chief Assistant Regional Counsel. (Def.s Facts 40.) Plaintiff disputes this
statement and maintains that Peterson refused to speak to Plaintiff, even though she was
his supervisor[,] and when Peterson did speak to Plaintiff, she was condescending,
demeaning, and abusive. (Pl.s Facts 40),
On October 10, 2013, Plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission (EEOC) alleging race, color, and age
discrimination.

(Def.s Facts 24; see also Charge of Discrimination, D.E. 60-1.)

Therein, Plaintiff claims that he was demoted due to his age and race; that in November
2011 he was reduced from a full-time employee to a part-time employee; and that his
annual salary was reduced from $85,000 to $50,000. (Def.s Facts 25; Charge of
Discrimination, D.E. 60-1.) Although not included in his EEOC Charge, he also claims
that Zenobi and Peterson visited his assigned courtroom to monitor his work. (See Pl.s
Facts 28, 29.)
On March 12, 2014nine days before his terminationPlaintiff accepted
appointment in a murder case in violation of RC3s policy.

(Def. Facts 39.)

Defendants state that Plaintiff violated the policy by (1) failing to obtain an oral
representation from the State on the record as to whether it intended to seek the death
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penalty and (2) failing to notify Peterson of the acceptance. (See Mot at 12.) Plaintiff
acknowledges that he violated the policy by failing to obtain the States position on the
record as to whether it would seek the death penalty. (Pl.s Facts 39.) However,
Plaintiff claims that he notified Peterson through Petersons assistant, Celeste Mills. (Id.)
On March 19, 2014, the Public Defenders office informed RC3 that it had to retry Florida v. Gordon, a case originally tried by Plaintiff in which convictions were
entered against his client, Alonzo Gordon, for second-degree murder and aggravated
battery. (Def.s Facts 42-43.) In Gordon, the Florida Court of Appeals wrote of
Plaintiffs performance:
Claims of ineffective assistance of counsel are generally not reviewable on
direct appeal. The proper procedure is to raise the issue through a collateral
attack by way of postconviction motion in the trial court, which allows full
development of the issues of counsels incompetence and the effect of
counsels performance on the proceedings. Baker v. State, 937 So. 2d
297, 299 (Fla. 4th DCA 2006) (quoting Grant v. State, 864 So. 2d 503, 505
(Fla. 4th DCA 2004)).
However, when the facts giving rise to such a claim are apparent on the
face of the record, Dante v. State, 903 So. 2d 293, 296 (Fla. 3d DCA
2005) (quoting Mizell v. State, 716 So. 2d 829, 830 (Fla. 3d DCA 1998)),
the issue may be reached during the direct appeal. . . .
[B]ased on the record before us, we conclude that counsels failure to move
for judgment of acquittal [on the aggravated battery charge] based on the
States failure to establish great bodily harm fell outside the wide range of
reasonable professional assistance. Strickland v. Washington, 466 U.S.
668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See also Hicks v.
State, 41 So. 3d 327 (Fla. 2d DCA 2010) (finding ineffective assistance of
counsel on face of record for trial counsels failure to properly move for
judgment of acquittal). Had counsel made a proper motion for judgment of
acquittal and argued that evidence was insufficient to establish the element
of great bodily harm, the defendant would have been entitled to a judgment
of acquittal on the aggravated battery charge, and a reduction of the charge
to the lesser included offense of simple battery.
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(Def.s Facts 44; Gordon v. Florida, 126 So. 3d 292, 294-296 (Fla. Dist. Ct. App.
2011).) The court of appeals therefore reversed Gordons conviction and sentence for
aggravated battery and remanded with instructions to enter a judgment of guilt for the
lesser-included offense of simple battery (and to proceed with resentencing on that
count). Gordon, 126 So. 3d at 296. The court of appeals also reversed Gordons
conviction for attempted second-degree murder because the trial court fundamentally
erred in giving the jury instruction on the lesser included offense of attempted voluntary
manslaughter, and remanded for a new trial on that count. Id. at 294.
On March 7, 2014, the Florida Supreme Court issued its Mandate declining to
accept discretionary review of Gordons case. (Def.s Facts 45; see Florida v. Gordon,
135 So. 3d 290 (Fla. 2014) (unpublished table decision).) Although Plaintiff argues that
RC3 would have become aware of the court of appeals opinion when it was rendered in
November 2011, (Pl.s Facts 42, 46), Zenobi testified that he first became aware of it
on March 19, 2014. (Def.s Facts 46; Zenobi Dep. (D.E. 65-6) at 188:18, 190:13,
191:17.)
Plaintiff was terminated two days later on March 21, 2014. (Def.s facts 47.)
Defendants assert that he was fired for his performance in the Gordon case and the
embarrassment he caused RC3, as well as for his failure to follow policy regarding
accepting murder cases and his lack of communication with his immediate supervisor,
Kellie Peterson. (Id.) RC3 assigned Plaintiffs former division to Fred Moldovan, a 52

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year-old white male who had been working for RC3 since December 2011.

(See

Peterson Dep., D.E. 65-9 at 90:3-5; RC3 Personnel Report (D.E. 75-13).)
On March 25, 2014, Plaintiff filed a second charge of discrimination with the
EEOC, this time alleging retaliation. (D.E. 60-2.) On February 5, 2015, the EEOC
issued a Right to Sue Letter. (D.E. 60-3.)
It is undisputed that nobody at RC3 ever used racist or ageist epithets when
speaking to Plaintiff. (Def.s Facts 49.)
Plaintiff filed this lawsuit on March 11, 2015. (See D.E. 1.) The operative Second
Amended Complaint alleges racial discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII) (Count I), race discrimination in violation of the Florida
Civil Rights Act of 1992 (FCRA) (Count II), age discrimination in violation of the
FCRA (Count III), retaliation in violation of Title VII (Count IV), and retaliation in
violation of the FCRA (Count V).
II.

Legal Standard
On a motion for summary judgment, the Court is to construe the evidence and

factual inferences arising therefrom in the light most favorable to the nonmoving party.
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Summary judgment can be
entered on a claim only if it is shown that 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). In
addition, under Federal Rule of Civil Procedure 56(f)(1), the Court may grant summary
judgment for the non-moving party [a]fter giving notice and a reasonable time to
respond. Fed. R. Civ. P. 56(f)(1); see also Gentry v. Harborage Cottages-Stuart, LLLP,
9

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654 F.3d 1247, 1261 (11th Cir. 2011). The Supreme Court has explained the summary
judgment standard as follows:
[T]he plain language of [Rule 56] mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the existence of an
element essential to that partys case, and on which that party will bear the
burden of proof at trial. In such a situation, there can be no genuine issue
as to any material fact, since a complete failure of proof concerning an
essential element of the non-moving partys case necessarily renders all
other facts immaterial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (internal quotation omitted). The
trial courts function at this juncture is not to weigh the evidence and determine the truth
of the matter but to determine whether there is a genuine issue for trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). A dispute about a material fact is
genuine if the evidence is such that a reasonable fact-finder could return a verdict for the
nonmoving party. Id. at 248; see also Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.
1989).
The party moving for summary judgment always bears the initial responsibility
of informing the district court of the basis for its motion, and identifying those portions of
the pleadings, depositions, answers to interrogatories, and admissions on file, together
with affidavits, if any, which it believes demonstrate the absence of a genuine issue of
material fact.

Celotex, 477 U.S. at 323.

Once the movant makes this initial

demonstration, the burden of production, not persuasion, shifts to the nonmoving party.
The nonmoving party must go beyond the pleadings and by [its] own affidavits, or by
the depositions, answers to interrogatories, and admissions on file, designate specific
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facts showing that there is a genuine issue for trial. Id. at 324; see also Fed. R. Civ. P.
56(c). In meeting this burden the nonmoving party must do more than simply show that
there is a metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). That party must demonstrate that there is
a genuine issue for trial. Id. at 587. An action is void of a material issue for trial
[w]here the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party. Id.
III.

Discussion
Defendants argue that some of Plaintiffs disparate treatment claims are time-

barred, (Mot. at 3-4), and that all of his disparate treatment claims fail on the merits, (id.
at 4-15). They further argue that Plaintiff cannot establish a claim for hostile work
environment. (Id. at 15.) Finally, Defendants argue that they are entitled to summary
judgment on Plaintiffs retaliation claims because there is no evidence that he was fired
because he filed a charge of discrimination. (Id. at 18.)
a.

Disparate treatment
1.

Untimely claims

First, Defendants argue that some of Plaintiffs disparate treatment claims are
time-barred. (Id. at 3.) They allege that Plaintiff has identified three discrete instances of
discrimination that occurred in 2011, outside the limitations periodspecifically, that
RC3 (1) failed to promote him to Chief Assistant Regional Counsel; (2) stopped
assigning him death penalty cases; and (3) reduced his salary from $85,000 to $50,000

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per year. (Mot. at 3.) Plaintiff argues that these claims are not time-barred pursuant to
the continuing violation doctrine. (Resp. at 3.)
A condition precedent to filing an action under Title VII is a timely filing of a
discrimination charge with the EEOC. Thomas v. Fla. Power and Light Co., 764 F.2d
768, 769 (11th Cir. 1985) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385
(1982)). Title VII requires aggrieved persons to file a complaint with the EEOC within
one hundred and eighty days after the alleged unlawful employment practice occurred.
Delaware State Coll. v. Ricks, 449 U.S. 250, 256 (1980) (quoting 42 U.S.C. 2000e5(e)). That period is extended to 300 days if the plaintiff has instituted proceedings with
a State or local agency with authority to grant or seek relief from such practice. . . . 6 42
U.S.C. 2000e-5(e)(1); see also E.E.O.C. v. Joes Stone Crabs, Inc., 296 F.3d 1265,
1271 (11th Cir. 2002) (For a charge to be timely in a deferral state such as Florida, it
must be filed within 300 days of the last discriminatory act.). A plaintiff alleging
discrimination under the FCRA must file a complaint with the Florida Commission on
Human Relations within 365 days of the alleged violation. Fla. Stat. 760.11(1).
Some of the discriminatory acts alleged by Plaintiff occurred in 2011. First,
RC3s alleged failure to promote Plaintiff to Chief Assistant Regional Counsel occurred
in the fall of 2011. Peterson testified that she was offered the position on October 11,
2011, (Peterson Dep. at 17:17-18); however, because the previous Chief Assistant was

Neither party identifies whether the 180- or 300-day limitations period would
apply here, but it does not appear that Plaintiff instituted proceedings with a State or local
agency with authority to grant or seek relief from such practice so as to extend the limitations
period to 300 days. 42 U.S.C. 2000e-5(e)(1).

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still employed, Peterson did not technically become Chief Assistant until December 1,
2011, (id. at 17:14-15). Regardless, Plaintiff testified that he became aware that Peterson
was promoted to Chief Assistant Regional Counsel in October 2011. (See Bailey Dep. at
71:20-21.) Second, Plaintiff testified that his transition from being a full-time employee
making $85,000 per year to a part-time employee making $50,000 per year occurred in
November 2011, (id. at 218:16-23); Zenobi testified that the transition occurred on
December 1, 2011, (Zenobi Dep. at 95:2-9). Third, RC3 removed Plaintiff from death
penalty cases sometime before December 1, 2011. (See id. at 96:20-24, 100:14-16.)
Plaintiff filed his Charge of Discrimination with the EEOC on October 10, 2013
well beyond the 180- or 300-day limitations period provided by Title VII, 42 U.S.C.
2000e-5(e)(1), and the 365-day limitations period provided by the FCRA, Fla. Stat.
760.11(1).
Plaintiff argues that his claims are saved by the continuing violation doctrine.
(Resp. at 3.) The continuing violation doctrine permits a plaintiff to pursue an otherwise
time-barred claim where at least one other violation occurred within the statutory period.
See Hipp v. Liberty Natl Life Ins. Co., 252 F.3d 1208, 1221 (11th Cir. 2001).
However, the law is clear that discrete discriminatory acts, such as failure to
promote and demotion, cannot form the basis of a continuing violation. See Natl R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); see also Ledbetter v. Goodyear
Tire & Rubber Co., Inc., 421 F.3d 1169, 1178-79 (11th Cir. 2005) (interpreting Morgan
as holding that Title VIIs timely-filing requirement erects an absolute bar on recovery
for discrete discriminatory or retaliatory acts occurring outside the limitations period).
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In Morgan, the Supreme Court explicitly held that discrete discriminatory acts are not
actionable if time barred, even when they are related to acts alleged in timely filed
charges. Id. (emphasis added). Each discrete discriminatory act starts a new clock for
filing charges alleging that act. The charge, therefore, must be filed within the 180 or
300day time period after the discrete discriminatory act occurred.

Id.

Morgan

explicitly identifies termination and failure to promote as discrete acts. Id. at 114.
Here, it is undisputed that Plaintiff did not file his EEOC charge within 180 or 300
days of (1) RC3s failure to promote him, (2) his transition from full-time to part-time
status and contemporaneous salary reduction, and (3) his removal from death penalty
cases.

Accordingly, Plaintiffs Title VII disparate treatment claims involving those

events are time-barred. See id.; see also Smithers v. Wynne, 319 F. Appx 755, 756-57
(11th Cir. 2008) (concluding as a matter of law, that [the plaintiffs] claims of being
passed over for promotion are allegations of discrete acts not subject to the continuing
violation doctrine); Ledbetter, 421 F.3d at 1179 (holding that discriminatory pay
practices constitute discrete acts of discrimination); Price v. M & H Valve Co., 177 F.
Appx 1, 10 (11th Cir. 2006) (holding that the plaintiffs failure to promote claim was not
subject to the continuing violation doctrine); Stuart v. Jefferson Cnty. Dept of Human
Res., 152 F. Appx 798, 800-801 (11th Cir. 2005) (holding that [a]n employers failure
to promote is a discrete act or single occurrence and therefore the continuing violation
doctrine does not apply); Joes Stone Crab, 296 F.3d at 1271-72 (holding that failure to
hire claims involved discrete discriminatory acts not subject to the continuing violation
doctrine).
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Likewise, because Plaintiff did not file a complaint with the Florida Commission
on Human Relations (FCHR) within 365 days of the alleged violations, his disparate
treatment claims under the FCRA involving RC3s failure to promote him, moving him
to part-time work and reducing his salary, and removing him from death penalty cases are
time-barred. See Schober v. Town of Ft. Myers Beach., Fla., No. 2:13CV857FtM
38CM, 2014 WL 6469881, at *4 (M.D. Fla. Nov. 17, 2014) (noting that a plaintiff
cannot recover for discrete acts of discrimination and retaliation that occur outside the
applicable statutory period of Title VII or the FCRA); Thompson v. Orange Lake
Country Club, Inc., 224 F. Supp. 2d 1368, 1379-80 (M.D. Fla. 2002) (concluding that the
plaintiffs claims of gender discrimination and hostile work environment under the FCRA
were time-barred where the plaintiff filed her complaint with the FCHR 426 days after
the discriminatory act).
However, Plaintiffs claim alleging disparate treatment for RC3 issuing him a
written counseling that placed him on probation is not time-barred.7

Additionally,

because Plaintiff timely filed his EEOC Charge alleging retaliation four days after he was
fired, (see D.E. 60-2), the retaliation claims are not time-barred.
2.

Timely disparate treatment claims

Defendants argue that insofar as Plaintiff alleged disparate treatment claims that
survive the time-bar, they nonetheless fail on the merits. (Resp. at 4-15.) The only

RC3 issued the written counseling and placed Plaintiff on probation on August
29, 2013. (See Counseling, D.E. 65-12.) Plaintiff filed his first EEOC Charge forty-two days
later on October 10, 2013. (See D.E. 60-1.)

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allegedly discriminatory acts that survive the time-bar are (1) RC3 issuing Plaintiff a
counseling memorandum that placed him on probation, and (2) RC3 terminating Plaintiff.
(See Resp. at 11-14.)
Where, as here, a plaintiff supports his Title VII claims with circumstantial
evidence, (see Resp. at 7 n.6), the Court applies the burden-shifting framework
established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
See Combs v. Plantation Patterns, 106 F.3d 1519, 1527 (11th Cir. 1997). Under that
framework, the plaintiff has the initial burden of establishing a prima facie case of
discrimination. Id. at 1527-28 (citing McDonnell Douglas, 411 U.S. at 802; Burdine,
450 U.S. at 253-54).

If he does so, the burden shifts to the employer to produce

legitimate, nondiscriminatory reasons for the challenged employment action.

Id.

(citing McDonnell Douglas, 411 U.S. at 802; Burdine, 450 U.S. at 254). Finally, if the
defendant meets this burden of production, the burden shifts back to the Plaintiff to come
forward with evidence sufficient to permit a reasonable factfinder to conclude that the
reasons given by the employer were not the real reasons for the adverse employment
decision. Id. (citing McDonnell Douglas, 411 U.S. at 804).
The McDonnell Douglas framework also applies to Plaintiffs claims of age
discrimination under the FCRA. See Sims v. MVM, Inc., 704 F.3d 1327, 1332 (11th Cir.
2013) (noting that claims under the Age Discrimination in Employment Act of 1967
(ADEA) based on circumstantial evidence are evaluated under McDonnell Douglas);
Ashkenazi v. S. Broward Hosp. Dist., 607 F. Appx 958, 960-61 (11th Cir. 2015)
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(Federal case law interpreting . . . the ADEA applies to cases arising under the
FCRA.) (quoting City of Hollywood v. Hogan, 986 So. 2d 634, 641 (Fla. Dist. Ct. App.
2008)).
A.

Written counseling and probation

On August 29, 2013, Plaintiff was given a written counseling that placed him on
probation to end in February 2014. (See D.E. 65-12 at 1-3.) The write-up identified
several issues, including Plaintiffs (1) unprofessional conduct toward courtroom
personnel in his assigned RC3 division[,] (2) unprofessional conduct toward Chief
Assistant Regional Counsel Kellie Peterson by failing to communicate with her regarding
his former client Register Holsendorff when specifically directed to do so numerous
times and while under her direct supervision in the felony division[,] and (3) failure to
provide effective assistance to RC3 clients. (See id.)
To establish a prima facie case of disparate treatment discrimination under Title
VII and the FCRA, a plaintiff must show: (1) he is a member of a protected class; (2) he
was subjected to adverse employment action; (3) his employer treated similarly situated
employees outside of his classification(s) more favorably; and (4) he was qualified to do
the job. Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) (citations omitted).
Although the Parties do not raise the issue in their briefs, the Court finds that Plaintiff
cannot establish a case for disparate treatment under Title VII based upon his written
counseling and probation because those events do not constitute adverse employment
actions.

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The relevant provision of Title VII prohibits discrimination with respect to an

employees compensation, terms, conditions, or privileges of employment. 42 U.S.C.
2000e-2(a). Courts have uniformly read this language to require a plaintiff suing under
2000e2(a) to establish, as part of his prima facie case, that he suffered so-called
adverse employment action. Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1238
(11th Cir. 2001) (citations omitted). It is clear . . . that not all conduct by an employer
negatively affecting an employee constitutes adverse employment action. Id. (citations
omitted). This limitation is consistent with the basic principle that Title VII[ ] is neither
a general civility code nor a statute making actionable the ordinary tribulations of the
workplace. Id. (quoting Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th Cir.
2000) (quoting Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999))).
Whatever the benchmark, it is clear that to support a claim under Title VIIs antidiscrimination clause the employers action must impact the terms, conditions, or
privileges of the plaintiffs job in a real and demonstrable way. Id. Although the
statute does not require proof of direct economic consequences in all cases, the asserted
impact cannot be speculative and must at least have a tangible adverse effect on the
plaintiffs employment. Id.
Thus, the Eleventh Circuit has held that to prove adverse employment action in a
case under Title VIIs anti-discrimination clause, an employee must show a serious and
material change in the terms, conditions, or privileges of employment. Id. This is an
objective standard: the employment action must be materially adverse as viewed by a

18

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reasonable person in the circumstances. Id. (citing Doe v. Dekalb Cnty. Sch. Dist., 145
F.3d 1441, 1453 (11th Cir. 1998)).
In Davis, the plaintiff alleged two adverse employment actions: (1) negative job
performance memoranda placed in his file that the plaintiff alleged were unwarranted,
diminished his prestige and self-esteem, and could potentially interfere with future job
prospects; and (2) two temporary demotions. Id. at 1240. The Eleventh Circuit found
that neither act constituted an adverse employment act under Title VII. Id. at 1240,
1245.
The negative job performance memoranda at issue in Davis are directly relevant
here because one of those memoranda was a counseling memorandum. Id. at 1240.
The counseling memorandum noted the plaintiffs improper and unacceptable conduct,
and concluded by stating that any future leave requests will not be granted until all
work-related paper work is turned in or you receive a waiver from your supervisor or
me. Id. It was undisputed that the plaintiff did not suffer any tangible consequences
from that memo, e.g., loss of pay, loss of benefits, or further discipline. Id. The Eleventh
Circuit held that the memo was not actionable under Title VII. Id. Nor was a later, even
sterner memorandum. Id.
The Eleventh Circuit explained that courts are wisely reluctant to treat job
performance memoranda as actionable under Title VII where they do not trigger any
more tangible form of adverse action such as a loss in benefits, ineligibility for
promotional opportunities, or more formal discipline. Id. at 1241. It cited cases from
several courts finding that criticisms of an employees job performancewritten or
19

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oralthat do not lead to tangible job consequences will rarely form a permissible
predicate for a Title VII suit. Id. at 1241-42 (citing Allen v. Mich. Dept of Corrs., 165
F.3d 405, 409 (6th Cir. 1999) (counseling memoranda, unlike denial of promotion, did
not constitute materially adverse employment action even though motivated by racial
animus); Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1998) (counseling memoranda
and negative performance evaluations, standing alone, cannot constitute an adverse
employment action); Rabinovitz v. Pena, 89 F.3d 482, 488 (7th Cir. 1996) (rejecting
proposition that a low performance rating is always an adverse employment action);
Meredith v. Beech Aircraft Corp., 18 F.3d 890, 896 (10th Cir. 1994) (allegedly
unjustified negative performance evaluation held not actionable); Milburn v. West, 854 F.
Supp. 1, 14 (D.D.C. 1994) (memorandum for the record that recounted employee
misconduct and requested more formal discipline against employee deemed not
actionable even though it was placed in employees permanent file), summ. affd. sub
nom., Walker v. West, No. 94-5228, 1995 WL 117983 (D.C. Cir. Feb. 7, 1995); Nelson
v. Univ. of Maine Sys., 923 F. Supp. 275, 282-83 (D. Me. 1996) (mere criticism, or
counseling, of an employee is not actionable); Coney v. Dept of Human Res., 787 F.
Supp. 1434, 1442 (M.D. Ga. 1992) (non-threatening written reprimand, later removed
from employees personnel file, held not actionable); Medwid v. Baker, 752 F. Supp.
125, 137 (S.D.N.Y. 1990) (counseling of employee for performance deficiency not
materially adverse action)).
In this case, the written counseling does two things: (1) it recounts Plaintiffs
allegedly unacceptable behavior and poor job performance, and (2) it places Plaintiff on
20

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probation. (D.E. 65-12 at 2-3.) Because Davis makes clear that a written counseling
that merely recounts an employees unacceptable behavior and poor job performance
does not constitute an adverse employment action, the question becomes whether placing
Plaintiff on probation nudges it over that line. The conditions of probation stated that
Plaintiff is to conduct himself in a manner consistent with a professional atmosphere and
which properly reflects upon RC3 and the State of Florida in all maters both in court and
out that relate to his responsibilities to RC3 and RC3 clients. (Id. at 2.) It also required
Plaintiff to provide effective assistance of counsel to all assigned RC3 clients, and
stated that if he was unable to provide effective representation he shall immediately
contact Ms. Kellie Peterson[.] (Id. at 2-3.) If Plaintiffs performance did not improve,
he would be terminated. (Id. at 3.)
The Court finds that Plaintiffs written counseling and probation had no tangible
impact on the terms, conditions, or privileges of Plaintiffs employment. The terms of
Plaintiffs probation merely required him to do what he was hired to do (and is required
to do by the Florida Bars Rules of Professional Conduct8)act professionally and
provide effective assistance to his clients. (See id. at 2-3.) Placing Plaintiff on probation
was a mere warning that if his performance and behavior did not improve, he would be
fired. Plaintiffs probationary status did not impact his pay, benefits, workload, or any
other term, condition, or privilege of his employment, tangibly or otherwise. See Stewart
8

See Rules Regulating the Florida Bar, Rules of Professional Conduct, Rule 4-1.1
Competence (Fla. Bar Assoc. May 20, 2016) (A lawyer shall provide competent representation
to a client. Competent representation requires the legal knowledge, skill, thoroughness, and
preparation reasonably necessary for the representation.).

21

Case 1:15-cv-20998-JAL Document 77 Entered on FLSD Docket 06/30/2016 Page 22 of 42

v. Mo. Pac. R.R. Co., 121 F. Appx 558, 562-63 (5th Cir. 2005) (affirming summary
judgment in favor of employer where the district court found that the plaintiffs one-year
probation did not constitute an adverse employment action since neither employee faced
termination, demotion, or a loss of benefits); Mason v. George, 24 F. Supp. 3d 1254,
1262, 1264 (M.D. Ga. 2014) (finding that the plaintiff, who was written-up and placed
on 30 days probation, did not suffer an adverse employment action because there is no
evidence that anything tangible happened to Plaintiff as a result of the write-ups, i.e.,
change in job duties, title, wage, hours, or benefits); Robinson-Reeder v. Am. Council
on Educ., 532 F. Supp. 2d 6, 16 (D.D.C. 2008) (finding that being placed on probation
did not constitute an adverse employment action because it did not change the terms,
conditions or privileges of the plaintiffs employment), affd 417 F. Appx 4, 5 (D.C. Cir.
2011); Mathis v. Wachovia, 509 F. Supp. 2d 1125, 1136 (N.D. Fla. 2007) (finding that a
temporary probation did not qualify as an adverse employment action because the
plaintiff did not lose any job benefits); Hawkins v,. BBVA Compass Bancshares, Inc.,
No. 2:12cv03922RDP, 2014 WL 4715865, at *9 (N.D. Ala. Sept. 22, 2014) (finding
that there was insufficient evidence from which a reasonable jury could conclude that
Plaintiff suffered any serious reduction in pay, responsibilities, or prestige with respect to
any decision other than her discharge and related probation status); Badgiayan v.
Principi, Civil Action No. 04-12031-JLT, 2007 WL 1464604, at *1 (D. Mass. May 21,
2007) (finding that the plaintiffs probation, even if undeserved, was immaterial and
therefore not an adverse employment action).

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Accordingly, Defendants are entitled to summary judgment on Plaintiffs disparate

treatment claim related to his written counseling and probation.
B.

Plaintiffs termination

Plaintiff claims that his March 21, 2014 termination constitutes disparate treatment
race and age discrimination. (See Resp. at 12-14.) Defendants argue that Plaintiff cannot
establish a prima facie case for discrimination because there are no comparator
employees, and, in any event, it had legitimate, non-discriminatory reasons to terminate
Plaintiff.

(Mot. at 5-12.)

Plaintiff argues that Defendants purported reasons for

termination are pretextual. (Resp. at 14.)

i.

Prima facie case

The test for establishing a prima facie case for discrimination under the FCRA and
Title VII are the same.9 The plaintiff must demonstrate that (1) he was a member of a
protected class, (2) was subject to an adverse employment action, (3) he was qualified to
do the job, and (4) he was replaced by a person outside his protected class or was treated
less favorably than a similarly-situated individual outside his protected class.

See

Margolis v. Pub. Health Trust of Miami-Dade Cnty., 89 F. Supp. 3d 1343, 1349 (S.D.
Fla. 2015) (FCRA) (quoting Benson v. Tocco, Inc., 113 F.3d 1203, 1207-08 (11th Cir.

Because the FCRA is modeled after Title VII as well as the ADEA, [f]ederal
case law interpreting Title VII and the ADEA is applicable to cases arising under the FCRA.
Margolis, 89 F. Supp. 3d at 1349 n.1 (quoting Reilly v. Novartis Pharm. Corp., No. 6:07cv
230Orl19GJK, 2008 WL 795322, at *3 (M.D. Fla. Mar. 24, 2008) (citing Jones v. United
Space Alliance, LLC, 494 F.3d 1306, 1310 (11th Cir. 2007))).

23

Case 1:15-cv-20998-JAL Document 77 Entered on FLSD Docket 06/30/2016 Page 24 of 42

1997)); Maynard v. Bd. of Regents of Div. of Univs. of Fla. Dept of Educ., 342 F.3d
1281, 1289 (11th Cir. 2003) (Title VII).
Here, it is undisputed that Plaintiff is a member of protected classes (he is black
and was 69 years old10 at the time of termination); was subject to an adverse employment
action (termination); and was qualified to do the job. However, Defendants argue that
there are no similarly situated comparator employees that received preferential
treatment, committed the same policy violations, or rendered ineffective counsel as
egregiously as Bailey. (Mot. at 5.)
Defendants argument is based upon the erroneous premise that the only method
of establishing a prima facie case is to identify similarly situated employees who were
treated more favorably. (See id.) However, [a] prima facie case of discriminatory
discharge may be established in different ways.

Nix v. WLCY Radio/Rahall

Commcns, 738 F.2d 1181, 1185 (11th Cir. 1984). One way is the method suggested by
Defendants: identify a comparator that is similarly situated in all relevant respects. See
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004). The comparator
must be nearly identical to the plaintiff to prevent courts from second-guessing a
reasonable decision by the employer. Id. In determining whether employees are
similarly situated for purposes of establishing a prima facie case in the disciplinary
context, it is necessary to consider whether the employees are involved in or accused of

10

The FCRA prohibits an employer from discriminating against an employee who is

40 years old or older because of the employees age. Fla. Stat. 760.10(1)(a); Barsorian v.
Grossman Roth, P.A., 572 F. Appx 864, 868 (11th Cir. 2014); City of Hollywood v. Hogan, 986
So. 2d 634, 641 (Fla. Dist. Ct. App. 2008).

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the same or similar conduct and are disciplined in different ways. See Silvera v.
Orange Cnty. Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001) (quoting Jones v. Bessemer
Carraway Med. Ctr., 137 F.3d 1306, 1311 (11th Cir. 1998), opinion modified by 151 F.3d
1321 (11th Cir. 1998)).
Alternatively, a member of a protected class makes out a prima facie case if he
establishes that he was qualified for the job, but was fired and replaced by one outside the
protected class. Nix, 738 F.2d at 1185 (citing Krieg v. Paul Revere Life Ins. Co., 718
F.2d 998, 999 (11th Cir. 1983)); see also OConnor v. Consol. Coin Caterers Corp., 517
U.S. 308, 312 (1996) (holding that under the ADEA, a plaintiff may establish a prima
facie case for age discrimination by showing that he was replaced by a substantially
younger worker). This is the method Plaintiff has invoked. (See Resp. at 6-7, 8-9.)
At the time of his termination, Plaintiff, a black man, was sixty-nine years old.
(See RC3 Personnel Report (D.E. 75-13).)

After his termination, his division was

reassigned to Fred Moldovan. (Peterson Dep., D.E. 65-9 at 90:3-4.) Mr. Moldavan is a
white man and was 52 years old when Plaintiff was terminated. (See RC3 Personnel
Report (D.E. 75-13).)

According to Eleventh Circuit precedent, 52 is substantially

younger than 69. See Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354,
1360 (11th Cir. 1999) (holding that plaintiff aged 42, who was replaced by employee
aged 37, met the substantially younger replacement requirement under ADEA); Carter
v. DecisionOne Corp., 122 F.3d 997, 1003 (11th Cir. 1997) (holding that plaintiff aged
42, who was replaced by employee aged 39, met the substantially younger replacement
requirement under ADEA). Accordingly, Plaintiff has established a prima facie case of
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disparate treatment race and age discrimination under the FCRA and race discrimination
under Title VII.
ii.

Legitimate, non-discriminatory reason

When a plaintiff establishes a prima facie case of discrimination, the burden of

production shifts to the employer to articulate a legitimate, nondiscriminatory reason for
the challenged employment action. Mazzeo v. Color Resolutions, Intl, LLC, 746 F.3d
1264, 1270 (11th Cir. 2014) (quoting Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th
Cir. 2000)). To satisfy that burden of production, [t]he defendant need not persuade the
court that it was actually motivated by the proffered reasons. It is sufficient if the
defendants evidence raises a genuine issue of fact as to whether it discriminated against
the plaintiff. Combs, 106 F.3d at 1528 (quoting Burdine, 450 U.S. at 254-55). [T]o
satisfy this intermediate burden, the employer need only produce admissible evidence
which would allow the trier of fact rationally to conclude that the employment decision
had not been motivated by discriminatory animus. Id. (quoting Burdine, 450 U.S. at
257).
Defendants assert that the tipping point that led to Plaintiffs termination was the
Florida Court of Appeals decision in Florida v. Gordon, 126 So. 3d 292 (Fla. Dist. Ct.
Ap. 2011). (Mot. at 12.) Plaintiff represented the criminal defendant in that case, Alonzo
Gordon. (See id.) Gordon was ultimately convicted of attempted second-degree murder
and aggravated battery. Gordon, 126 So. 3d at 293. On direct appeal, the court of
appeals reversed Gordons conviction and sentence for aggravated battery due to the
ineffective assistance Plaintiff provided Gordon.
26

Id. at 294-96.

Specifically, the

Case 1:15-cv-20998-JAL Document 77 Entered on FLSD Docket 06/30/2016 Page 27 of 42

appellate court found that the evidence was insufficient as a matter of law to establish the
element of great bodily harm, and that Plaintiff was therefore ineffective for failing to
move for judgment of acquittal due to the States failure to establish that element of the
crime. Id. at 295-96. The court noted that although [c]laims of ineffective assistance of
counsel are generally not reviewable on direct appeal[,] the facts giving rise to the claim
were apparent on the face of the record. Id. at 294-95.
Defendants argue that Gordon is significant for three reasons. First, the opinion
was written by Judge Kevin Emas, for whom Zenobi has a lot of respect. (Mot. at 13
(citing Zenobi Dep. at 188).) Second, the appellate court almost never decides an
ineffectiveness claim on [direct] appeal. This was an unusually rare occurrence. (Id.
(citing Zenobi Dep. at 189).) Finally, the case reflected poorly on the quality and
effectiveness of Regional Counsels representation of indigent defendants. (Id. (citing
Zenobi Dep. at 189).)
The Court finds Defendants have articulated a legitimate, non-discriminatory
reason for terminating Plaintiffspecifically, Plaintiffs poor performance in Gordon.
See, e.g., Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1267 (11th Cir. 2010) (noting
that unsatisfactory job performance is a legitimate, non-discriminatory reason for
terminating an employee).

Poor job performance might motivate a reasonable

employer to terminate an employee.

Chapman, 229 F.3d at 1030.

Defendants have carried their intermediate burden. See id.

27

Therefore,

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iii.

Pretext

Where the employer rebuts the presumption of discrimination raised by the prima
facie case by articulating a legitimate, non-discriminatory reason for the adverse
employment action, the burden shifts back to the plaintiff to demonstrate that the
proffered reason was not the true reason for the employment decision . . . . [The plaintiff]
may succeed in this either directly by persuading the court that a discriminatory reason
more likely motivated the employer or indirectly by showing that the employers
proffered explanation is unworthy of credence. Jackson v. Ala. State Tenure Commn,
405 F.3d 1276, 1289 (11th Cir. 2005) (quoting Burdine, 450 U.S. at 256). [A] plaintiff
withstands summary adjudication by producing sufficient evidence to allow a reasonable
finder of fact to conclude that the defendants articulated reasons for its decision are not
believable. Id. (quoting Howard v. BP Oil Co., 32 F.3d 520, 526 (11th Cir. 1994)). In
evaluating a summary judgment motion, [t]he district court must evaluate whether the
plaintiff

has

demonstrated

such

weaknesses,

implausibilities,

inconsistencies,

incoherencies, or contradictions in the employers proffered legitimate reasons for its

action that a reasonable factfinder could find them unworthy of credence. Id. (quoting
Combs, 106 F.3d at 1538).
[T]o avoid summary judgment [the plaintiff] must introduce significantly
probative evidence showing that the asserted reason is merely a pretext for
discrimination. Brooks v. Cnty. Commn of Jefferson Cnty., Ala., 446 F.3d 1160, 1163
(11th Cir. 2006) (quoting Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1228 (11th Cir.
1993)). A reason is not pretext for discrimination unless it is shown both that the
28

Case 1:15-cv-20998-JAL Document 77 Entered on FLSD Docket 06/30/2016 Page 29 of 42

reason was false, and that discrimination was the real reason. Id. (quoting St. Marys
Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)).
Defendants state that the tipping point that caused Plaintiffs termination was
the Florida Court of Appeals decision in Florida v. Gordon, 126 So. 3d 292 (Fla. Dist.
Ct. App. 2011), where, on direct appeal, Alonzo Gordons conviction and sentence for
aggravated battery were reversed due to the ineffective assistance Plaintiff provided Mr.
Gordon at trial. (Mot. at 12; Zenobi Dep. at 187-88.)
Zenobi testified that RC3 was notified of the court of appeals decision in Gordon
on approximately March 19, 2014, after the Florida Supreme Court denied discretionary
review. (Zenobi Dep. at 188:6-21.) Both Zenobi and Peterson testified that they were
not aware of the opinion until March 19, 2014. (Id. at 191:12-17; Peterson Dep. (D.E.
65-9) at 93:3-12.) Zenobi explained that the public defender handled the Gordon appeal
and did not notify RC3 about the case until March 2014. (Zenobi Dep. at 190:3-13.)
Plaintiff argues that Defendants reliance on Gordon is pretextual because that
opinion was rendered on November 30, 2011more than two years before Plaintiffs
termination. (Resp. at 13-14.) He argues that RC3 would have become aware of the
opinion when it was rendered. (Pl.s Facts 46.)
The Court finds that Plaintiff has not satisfied his burden of presenting evidence
that would permit a reasonable finder of fact to reject Defendants argument that it
terminated Plaintiff due to the Florida Court of Appeals decision in Gordon. Although
Plaintiff contends that RC3 was made aware of the opinion when it was rendered in 2011,
he points to no evidence suggesting that Zenobi or Peterson were aware of the opinion
29

Case 1:15-cv-20998-JAL Document 77 Entered on FLSD Docket 06/30/2016 Page 30 of 42

before March 19, 2014. In fact, the evidence to which Plaintiff cites directly contradicts
his position. (See Pl.s Facts 46 (citing Zenobi Dep. at 189:22-25; 190:1-7).)11 Thus,

11

The portion of Zenobis deposition testimony to which Plaintiff cites provides:

A.
We only handle specialized appeals or certioraris when the case is
required to. Other times, we send our appeals to the public defender. We have a
signed agreement with them.
Q.

How is a decision made on who handles appeals?

A.
I think its basically if the public defender wants to send the case
back, they will.
For example, there was a huge murder case that we kept, but all the
rest go back to the public defenders office.
(Zenobi Dep. at 189:22-25; 190:1-7.) Immediately after this testimonywhile Zenobi is still
answering the question regarding how a decision is made on who handles appealsthe transcript
continues:
[Zenobi]:
They send us this case was decided, of course, after the
trial in 2011, and I did not know about the case. They didnt notify us about the
case, but they took a writ of certiorari to the Supreme Court, and then they
notified us about this case somewhere on the 18th or 19th of March.
Q.
. . . When a case handled by Regional Counsel is appealed by the
public defender, does the public does the public defender keep the Regional
Counsel updated as to that case?
A.

Not always.

Q.

. . . [W]hen you say not always when do they keep you up to

A.

I guess on first degree murder cases they would.

Q.

Was the Gordon case a first degree murder case?

A.

No. It was attempted second degree.

date?

Q.
And so the decision to reverse that case came down in 2011.
Youre saying you were not made aware of that decision?
A.

Thats right.

30

Case 1:15-cv-20998-JAL Document 77 Entered on FLSD Docket 06/30/2016 Page 31 of 42

he has not demonstrated that Defendants statement that it terminated Plaintiff due to the
Gordon opinion is pretext for discrimination.
Because Plaintiff failed to proffer sufficient evidence to create a genuine issue of
material fact regarding whether Defendants articulated reasons for his termination was
pretext for discrimination, Defendants are entitled to summary judgment on Plaintiffs
disparate treatment claims. See Chapman, 229 F.3d at 1024-25; Combs, 106 F.3d at
1529.
b.

Hostile Work Environment

Plaintiff incorporates into Counts I, II, and III an allegation of hostile work
environment based on the facts contained in his General Allegations, although he does
not specify which of his General Allegations support such a claim. (See Second
Amended Complaint 40, 52, 67.)
To establish a claim of a hostile work environment, an employee must prove that
the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is
sufficiently severe or pervasive to alter the conditions of the victims employment and
create an abusive working environment. Adams v. Austal, U.S.A., L.L.C., 754 F.3d
1240, 1248 (11th Cir. 2014) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993)).

Q.
And you were made aware of decision [sic] sometime around
March 18, 2014?
A.

March 18th, March 19th.

(Id. at 190:8-25; 191:1-17 (objections omitted).)

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The employee must prove five elements if he bases his harassment claim on
race: (1) that he is a member of a protected class; (2) that he was subjected
to unwelcome racial harassment; (3) that the harassment was based on his
race; (4) that the harassment was severe or pervasive enough to alter the
terms and conditions of his employment and create a discriminatorily
abusive working environment; and (5) that the employer is responsible for
the environment under a theory of either vicarious or direct liability.
Id. at 1248-49 (citing Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.
2002)). Assuming arguendo that a hostile work environment claim is cognizable under
the FCRA vis--vis the ADEA,12 the same framework would apply. See Apodaca v.
Secy of Dept of Homeland Sec., 161 F. Appx 897, 901 (11th Cir. 2006).
Defendants argue that Plaintiff cannot establish that (1) he was subjected to
unwelcome harassment, (2) any alleged harassment was based on his age or race, or (3)
any alleged harassment was sufficiently severe or pervasive to alter the terms or
conditions of his employment and create a discriminatorily abusive working
environment. (Mot. at 15-16.)
1.

Subjected to unwelcome harassment

Construing the evidence in the light most favorable to Plaintiff, the Court finds
that Plaintiff has sufficiently established that he was subject to unwelcome harassment.
12

It does not appear that the Eleventh Circuit has ever held in a published opinion
that a claim for hostile work environment based upon age is cognizable under the ADEA. In
E.E.O.C. v. Massey Yardley Chrysler Plymouth, Inc., the Eleventh Circuit specifically declined
to answer the question. 117 F.3d 1244, 1249 n.7 (11th Cir. 1997) (Neither party questions,
hence we do not actually decide, whether the hostile environment doctrine developed in Title VII
actions applies in an ADEA action, a question so far decided specifically by only one circuit
court of appeals, the Sixth. The latter stated, we find it a relatively uncontroversial proposition
that such a (hostile environment) theory is viable under the ADEA.) (quoting Crawford v.
Medina Gen. Hosp., 96 F.3d 830, 834 (6th Cir. 1996)). However, in Apodaca v. Secretary of
Department of Homeland Security, the Eleventh Circuit implicitly recognized the claim when it
analyzed the plaintiffs hostile work environment race and age claim under the Title VII
framework. 161 F. Appx 897, 901 (11th Cir. 2006).

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Specifically, Plaintiff testified that on the rare occasions that Peterson spoke to him she
was very demeaning . . . . (Bailey Dep. at 170:16-17.) He further testified that on at
least one occasion, Peterson yelled at him over the phone. (Id. at 172:23-25.) Plaintiff
characterized this phone call as abusive and Ms. Petersons dialogue as derogatory.
(Id. at 176:17.) Plaintiff stated that [i]t was a continuing way of treatment and talking to
me as the individual. (Id. at 185:10-11.) The Court finds that this is sufficient evidence
from which to conclude that Plaintiff was subject to unwelcome verbal harassment from
Kellie Peterson.
Plaintiff also argues that he was subject to unwelcome harassment in the form of
Zenobi and Peterson monitoring and scrutinizing his work. (Resp. at 16.) Specifically,
Plaintiff cites evidence that Peterson and Zenobi monitored Plaintiffs courtroom
activities. (Bailey Dep. at 215:22-25, 216:1-25, 217:1-25, 218:1-2.) He also notes that
Zenobi asked for files in some of Plaintiffs cases in which Zenobi was concerned about
ineffective assistance of counsel. (Zenobi Dep. at 171:14-21.) Furthermore, Peterson
spoke with Assistant State Attorney Rachel Walters to determine whether the State had
offered a plea deal in the Terin Fuller case. (Peterson Dep., D.E. 65-9 at 39-41.) Finally,
Plaintiff alleges that Zenobi approached Judge Monica Gordo, whose courtroom Plaintiff
was assigned to, to inquire about Plaintiffs performance. (Zenobi Dep. at 167:1-10.)13
The Court finds that even when construed in the light most favorable to Plaintiff,
this cannot be considered harassment. It is not harassment for supervisors to monitor

13

Zenobi testified at his deposition that he does not recall ever speaking to Judge
Gordo about Plaintiff specifically. (D.E. 65-6 at 9-11.)

33

Case 1:15-cv-20998-JAL Document 77 Entered on FLSD Docket 06/30/2016 Page 34 of 42

the performance of their employees, and Title VII does not require fellow employees to
like each other. McCoy v. Macon Water Auth., 966 F. Supp. 1209, 1221 (M.D. Ga.
1997); see also Boykins v. Lucent Techs., Inc., 78 F. Supp. 2d 402, 414 (E.D. Pa. 2000)
([S]imply being observed at work, without more, does not rise to the level of an adverse
employment action.). In fact, the Eleventh Circuit has indicated that monitoring an
employees work excessively and closely monitoring his movements at work do not
constitute adverse employment actions. Davis v. Postmaster Gen., 190 F. Appx 874,
875-76 (11th Cir. 2006); see also Harbuck v. Teets, 152 F. Appx 846, 848 (11th Cir.
2005) (finding, where the plaintiff argued that she was subject to heightened scrutiny
after filing an EEOC charge, that the plaintiff had not established a prima facie case of
discrimination).
There is no evidence from which the Court could conclude that Zenobi and
Petersons actions were anything but appropriate supervision. Furthermore, Plaintiff
admitted at his deposition that he had no knowledge as to whether Zenobi and/or Peterson
monitored other RC3 attorneys courtrooms, (Bailey Dep. at 224:24-25, 225:1-4, 227:1721), and Zenobi testified that he talked to all the judges about the lawyers behavior in
the courtrooms and their performances, (Zenobi Dep. at 167:3-4).

Therefore, the

monitoring cannot form the basis of Plaintiffs hostile work environment claim. See
Davis, 190 F. Appx at 877. However, as will be discussed below, even if the monitoring
could be considered harassment, it was not sufficiently severe or pervasive to make it
actionable.

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2.

Harassment based on age or race

It is undisputed that nobody at RC3 ever used racist or ageist epithets or other
derogatory language based upon race or age when interacting or engaging with Plaintiff.
(Pl.s Facts 49.) The only evidence that the allegedly harassing conduct was based
upon Plaintiffs race or age is his own deposition testimony. Plaintiff describes a single
phone call in which Peterson yelled at him. (See Bailey Dep. at 172.) Plaintiff had
ordered an interpreter and told the interpreter to meet him at a jail to assist in a client
interview, but the interpreter left when he did not see Plaintiff (although Plaintiff states
that he was there). (Id. at 172-173.) Peterson called Plaintiff, yelling at [him] on the
phone, asking him where he was. (Id. at 172.) Peterson expressed frustration over
having to pay an interpreter who did not do any work. (Id.)
Plaintiff testified that the reason Peterson yelled at him over the phone had to do
with [his] race and age. (Bailey Dep. at 182:2-3.) When asked how he knew this,
Plaintiff answered: Its my belief. (Id. at 182:11.) When asked what facts he relied
upon for the contention that Ms. Peterson treated him differently because of his race or
age, he responded: Ive seen her talk to other people. (Bailey Dep. at 188:9-12.)
This is simply insufficient to establish that Petersons unwelcome conduct toward
Plaintiff was based on his age or race. See Turner v. Ga. Secy of State, 848 F. Supp. 2d
1361, 1381 (M.D. Ga. 2012) (finding that the plaintiff failed to establish that any
harassing conduct was based on her gender or race where the disrespectful,
unprofessional, and harassing statements had nothing to do with gender or race). On
their face, [Petersons] criticisms of the plaintiff appear to be entirely performance
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related. Ellis v. Wal-Mart Stores, Inc., 952 F. Supp. 1522, 1527 (M.D. Ala. 1996).
Consequently, the Court finds that Plaintiff has not established a claim for hostile work
environment based on race and age.
3.

Severe or pervasive

Even if the alleged harassment was motivated by race or age, the Court finds that
it was not sufficiently severe or pervasive to be actionable. This element requires a
plaintiff to prove that the work environment is both subjectively and objectively hostile.
Adams, 754 F.3d at 1249 (citing Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th
Cir. 1999)). The employee must subjectively perceive the harassment as sufficiently
severe and pervasive to alter the terms or conditions of employment, . . . [and] the
objective severity of harassment should be judged from the perspective of a reasonable
person in the plaintiffs position, considering all the circumstances. Mendoza, 195 F.3d
at 1249 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)). To
evaluate whether a work environment is objectively hostile, the Court considers: (1) the
frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is
physically threatening or humiliating, or a mere offensive utterance; and (4) whether the
conduct unreasonably interferes with the employees job performance. Id. at 1246.
The courts should examine the conduct in context, not as isolated acts, and determine
under the totality of the circumstances whether the harassing conduct is sufficiently
severe or pervasive to alter the terms or conditions of the plaintiffs employment and
create a hostile or abusive working environment. Id.

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The Court finds that Plaintiff failed to establish that Petersons alleged verbal
harassment was either subjectively or objectively hostile. With respect to the subjective
component, Plaintiff stated that the way Peterson spoke to him on the phone upset him.
(Bailey Dep. at 170:18.) He characterized the phone call as abusive, derogatory, and
demeaning, and stated that it was confusing and troubling. (Id. at 171:17; 178:17;
180:17; 181:8-9.) He does not explain how he subjectively perceived the phone call, or
the way Peterson treated him in general, to alter the terms or conditions of his
employment. Thus, the Court cannot conclude that Plaintiff has established a subjective
belief that the Petersons alleged harassment was severe and pervasive.
Even if Plaintiff could establish that he subjectively perceived the way Peterson
treated him as being severe and pervasive, that subjective perception would be
objectively unreasonable. He cites no evidence, and makes no argument, that Peterson
verbally harassed him frequently. To the contrary, Plaintiff testified at his deposition that
Peterson didnt speak with him, [d]idnt communicate with [him] with anything and
refused to even discuss anything with [him] basically. (Bailey Dep. at 273:20-24.)
Moreover, the one instance of verbal harassment that Plaintiff does describethe phone
call regarding the interpreterwas not particularly severe. (See id. at 172-73.) Peterson
allegedly yelled at Plaintiff for not being at the jail when the interpreter arrived, but when
Peterson found out that Plaintiff was there she tuned down a bit. (Id. at 173.) Finally,
Plaintiff has cited no evidence that Petersons verbal harassment was physically
threatening or humiliating, or that it interfered with Plaintiffs job performance.

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Consequently, Plaintiff failed to present sufficient evidence from which to conclude that
Petersons alleged harassment was objectively hostile.
Likewise, even if the Court were to also consider Zenobi and Petersons
monitoring of Plaintiffs workwhich the Court previously found to not constitute
harassment based on age or race, (see Section III(b)(1), supra)Plaintiff has not
established that it was subjectively or objectively hostile. When asked whether the
monitoring affected him in any way, Plaintiff testified only that it concerned and
troubled him. (Id. at 220:20-21.) Harassment is subjectively severe and pervasive if
the complaining employee perceives the harassment as severe and pervasive[.] Johnson
v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 509 (11th Cir. 2000). The
Court finds that being concerned and troubled over supervisory monitoring, without
more, is insufficient to establish a subjective belief that harassment is so severe and
pervasive as to alter the terms and conditions of employment.14
Even if being concerned and troubled over supervisor monitoring was
sufficient to establish that an employee subjectively perceived harassment to be severe
and pervasive, there is simply no evidence in the record from which one could conclude
that the subjective belief was objectively reasonable. See Mendoza, 195 F.3d at 1246
(The employee must subjectively perceive the harassment as sufficiently severe and
14

Although Plaintiffs Statement of Facts allege that Plaintiff admits to being

nervous and feeling self-conscious about his abilities in the courtroom despite his thirty (30)
years of experience because of the extensive scrutiny, (Pls Facts 52), the parts of his
deposition transcript to which he cites do not state that he felt nervous or self-conscious. (See
Bailey Dep. at 220-21, 302-03.) In fact, according to the Index of Plaintiffs deposition
transcript, he never used the words nervous or self-conscious during the entire deposition,
which lasted more than eleven hours.

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pervasive to alter the terms or conditions of employment, and this subjective perception
must be objectively reasonable.).
Plaintiff testified that Zenobi visited his courtroom on average once per year in the
three years between when Zenobi became Regional Counsel and when Plaintiff was
terminated. (Bailey Dep. at 215:24-25.) Plaintiff also testified that Peterson was in his
courtroom on a couple of occasions. (Id. at 168:23.) Plaintiff testified that on the few
occasions in which Zenobi and Peterson visited his courtroom, they were not interfering,
but they were there just to observe and at least to watch my performances . . . . (Bailey
Dep. at 169:2-4.)
Zenobi further testified that he talked to all the judges about the lawyers behavior
in the courtrooms and their performances on a regular basis. (Id. at 167:3-8.) Zenobi
testified that he did not recall talking to Judge Gordo after the August 29, 2013 probation
memo was issued, and further testified that he did not remember talking to Judge Gordo
about Plaintiff on any specific occasion. (Id. at 167:9-15.)
Quite simply, the environment described above would not be reasonably perceived
as hostile or abusive. Accordingly, even if Plaintiff had established that he was subjected
to unwanted harassment and that harassment was based upon his age and/or race, he did
not establish that the alleged harassment was sufficiently severe or pervasive, either
subjectively or objectively, to alter the terms and conditions of employment and create a
discriminatorily abusive working environment.

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c.

Retaliation

Finally, Defendants argue that they are entitled to summary judgment on

Plaintiffs retaliation claims. (Mot. at 18.) Title VII provides that [i]t shall be an
unlawful employment practice for an employer to discriminate against any of his
employees . . . because he has opposed any practice made an unlawful employment
practice by [Title VII], or because he has made a charge under Title VII. 42 U.S.C.
2000e-3(a). The McDonnell Douglas burden-shifting framework applies to retaliation
claims based on circumstantial evidence. Brown v. Ala. Dept of Transp., 597 F.3d 1160,
1181 (11th Cir. 2010) (citing Bryant v. Jones, 575 F.3d 1281, 1307 (11th Cir. 2009)).
First, Plaintiff must establish a prima facie case for retaliation by showing
(1) he engaged in a statutorily protected activity; (2) he suffered an adverse
employment action; and (3) he established a causal link between the
protected activity and the adverse action. These three elements create a
presumption that the adverse action was the product of an intent to retaliate.
Once a plaintiff establishes a prima facie case of retaliation, the burden of
production shifts to the defendant to rebut the presumption by articulating a
legitimate, non-discriminatory reason for the adverse employment action.
If the defendant carries this burden of production, the presumption raised
by the prima facie case is rebutted and drops from the case. After the
defendant makes this showing, the plaintiff has a full and fair opportunity
to demonstrate that the defendants proffered reason was merely a pretext to
mask discriminatory actions.
Bryant, 575 F.3d at 1307-08 (internal citations and quotation marks omitted).
Here, it is undisputed that: (1) Plaintiff engaged in statutorily protected activity by
filing a Charge of Discrimination with the EEOC on October 10, 2013 and that RC3
learned of the EEOC Charge in November 2013, (see Zenobi Dep. at 173:11-17); and (2)
Plaintiff suffered a materially adverse employment action when he was fired on March
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21, 2014,15 (see Mot. at 18). Defendants argue, though, that the EEOC Charge and
Plaintiffs termination are too temporally removed from each other to establish a causal
connection. (Id. at 19.)
However, regardless of whether Plaintiff can establish a prima facie case of
retaliation, the Court has already found that Plaintiff failed to demonstrate that
Defendants proffered reason for terminating Plaintiffspecifically, Plaintiffs poor
performance in Florida v. Gordonis pretext for discrimination. (See supra Section
III(a)(2)(B)(iii).) Plaintiff also failed to demonstrate that Defendants proffered reason is
pretext for retaliation. Accordingly, Defendants are entitled to summary judgment on the
retaliation claim. See Turner v. Inzer, 521 F. Appx 762, 765 (11th Cir. 2013) (finding
that the plaintiff failed to show that the employers proffered reasons were pretext for

15

Plaintiff argues that in addition to termination, he suffered a materially adverse

employment action in the form of Zenobi and Petersons monitoring his work. (Resp. at 17-18.)
The Court rejects this argument. The Eleventh Circuits standard for retaliation claims requires
Plaintiff to establish an ultimate employment decision or make some other showing of
substantiality in the employment context in order to establish an adverse employment action.
Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (citations omitted). The Eleventh
Circuit has defined ultimate employment decisions as those such as termination, failure to hire,
or demotion. Stavropoulos v. Firestone, 361 F.3d 610, 617 (11th Cir. 2004). The Eleventh
Circuit requires that conduct falling short of an ultimate employment decision must, in some
substantial way, alter[ ] the employees compensation, terms, conditions, or privileges of
employment, deprive him or her of employment opportunities, or adversely affect [ ] his or her
status as an employee. Crawford, 529 F.3d at 970 (quoting Gupta v. Fla. Bd. of Regents, 212
F.3d 571, 587 (11th Cir. 2000)). The employee must demonstrate he suffered a serious and
material change to sustain a retaliation claim. Id. at 971 (citations omitted).
The Court has already found that Zenobi and Petersons monitoring of Plaintiffs work
did not affect the terms and conditions of Plaintiffs employment. (See Section III(b)(1), supra.)
Accordingly, the Court rejects Plaintiffs claim that Zenobi and Petersons monitoring activities
constitute a materially adverse employment action that may serve as the basis of his retaliation
claim.

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discrimination or retaliation); Wilson v. Bellsouth Telecomm. Inc., 386 F. Appx 971,

972 (11th Cir. 2010) (same).
IV.

Conclusion
Accordingly, it is ORDERED AND ADJUDGED that:
1.

Defendants Second Corrected Motion for Final Summary Judgment (D.E.

70) is GRANTED;

2.

Final Judgment will be entered by separate Order;

3.

All pending motions are DENIED AS MOOT; and

4.

This case is now CLOSED.

DONE AND ORDERED in Chambers at Miami, Florida this 30th day of June,
2016.

____________________________________
JOAN A. LENARD
UNITED STATES DISTRICT JUDGE

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