WILLIAMS

v.

POLK COUNTY BOARD OF COUNTY COMMISSIONERS

Before the Court is Defendant’s motion to dismiss the amended complaint (Dkt. 16) and Plaintiff’s response (Dkt. 17). After careful review of the allegations of the amended complaint (Dkt. 15), the Court denies the motion as to the first three counts and grants the motion without prejudice on the last count.

ALLEGATIONS¹

Plaintiff sues his former employer for race-based discrimination, retaliation, and hostile work environment under Title VII, and age discrimination under the ADEA. Dkt. 15.2 The following facts are accepted as true based on the present

40 (in October 2016) as a Veteran Services Officer. Id. ¶¶ 9, 23. He held that position for over two years, and in June 2019, Plaintiff was selected for and promoted to the position of Veteran Services Supervisor. Id. ¶¶ 23, 27, 132. On

December 13, 2019, Plaintiff was terminated at age 44. Id. ¶¶ 133, 154. Two of the individuals Plaintiff supervised were Joseph Lesniewicz and Timothy Kirkhart, both Caucasian men. Dkt. 15 ¶¶ 28, 31. Mr. Lesniewicz had unsuccessfully interviewed for Plaintiff’s supervisory position, and he immediately began to refuse consulting Plaintiff on job-related matters. Id. ¶¶ 25, 26, 28. Shortly thereafter, Mr. Kirkhart began following Mr. Lesniewicz’s lead and soon stopped accepting any direction from Plaintiff. Id. ¶ 31. Both veteran services officers bypassed Plaintiff by taking their requests for a varied work schedule and other issues directly to the Director of Health and Human Services—Marcia Andreson, a Caucasian woman. Id. ¶¶ 28, 32. Ms. Andreson served as Plaintiff’s direct supervisor, but she was not Mr. Lesniewicz or Mr. Kirkhart’s direct supervisor. The amended complaint alleges that Mr. Lesniewicz and Mr. Kirkhart often came to work late, left early, took days off, and scheduled community appointments without approval from Plaintiff. Dkt. 15 ¶¶ 44, 49. Plaintiff discussed with the two supervisees their failure to follow protocol. Id. ¶¶ 29, 32. In Plaintiff’s words, the two men simply responded that “the only reason why you are in charge and working here is because we allow you to.” Id. ¶¶ 33, 50. Plaintiff alleges the “we” referred to all the Caucasian staff members working there. Id.

Plaintiff spoke with Ms. Andreson about the failure of Mr. Lesniewicz and Mr. Kirkhart to follow the chain of command. Dkt. 15 ¶¶ 29, 30, 34, 49. Ms. Andreson told Plaintiff on more than one occasion to leave them alone and let them supervise themselves. Id. ¶¶ 30, 34.

Plaintiff received all satisfactory remarks at his three-month evaluation by Ms. Andreson. Dkt. 15 ¶ 42. Around that same time in August 2019, Ms. Andreson informed Plaintiff that Mr. Lesniewicz and Mr. Kirkhart were “burned-

out,” and Plaintiff agreed to help with the client load and hold training sessions. Id. ¶¶ 44, 46. Their poor performance and reduced hours continued, and Plaintiff began asking Ms. Andreson if he could write up the two subordinates for violations. Id. ¶ 49, 52. Ms. Andreson always instructed Plaintiff not to do so. Id.

Ms. Andreson’s assistant began asking Plaintiff to manipulate the timecards for Mr. Lesniewicz and Mr. Kirkhart to reflect that they were working full hours. Id. ¶

53.

At that point, Mr. Lesniewicz and Mr. Kirkhart complained to Ms. Andreson about Plaintiff’s persistent annoyance with their work performance and hours.

Dkt. 15 ¶ 51. The two men began approaching other workers to convince them to complain to Ms. Andreson about Plaintiff and have him replaced by Mr. Lesniewicz. Id. ¶ 54. Plaintiff discovered this information from another supervisee—Harry Clark, an African American man. Id. ¶ 55. Mr. Clark admitted to Plaintiff that he complied with his fellow employees’ request. Id. ¶ 56. Because Mr. Clark was aware of the close relationship among Ms. Andreson, Mr. Lesniewicz, and Mr. Kirkhart, he feared for his job should he not oppose Plaintiff.

Id. ¶¶ 56, 59. By October 2019, Plaintiff told Ms. Andreson that he could not be an effective supervisor if Mr. Lesniewicz and Mr. Kirkhart were allowed to come and go as they pleased. Dkt. 15 ¶ 62. Plaintiff asked Ms. Andreson, “What was so special about these two guys that they get such special privileges?” Id. ¶ 64. Plaintiff went so far as to put in writing to Ms. Andreson his intention to start writing up the two men for violations. Id. ¶¶ 65, 66. Within a week, Plaintiff received his first negative follow-up work performance memorandum from Ms. Andreson, which included allegations and “perceptual complaints” from both Mr. Lesniewicz and Mr. Kirkhart. Id. ¶ 67. On December 13, 2019, Defendant terminated Plaintiff for cause. Id. ¶¶ 11–12, 95, 133–34. The reason stated was “Plaintiff’s performance improvement regarding team interaction and development was not demonstrated during the probationary period.” Id. ¶¶ 12, 134.

DISCUSSION

The Court accepts all factual allegations, not legal conclusions, as true and construes all reasonable inferences from those alleged facts in the light most favorable to Plaintiff.³ Ashcroft v. Iqbal, 556 U.S. 662 (2009) (allowing reasonable inferences to be drawn from factual content). The amended complaint must contain sufficient facts to state a claim for relief that is “plausible on its face.” Id. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). More than mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” is required. Id. (quoting Twombly, 550 U.S. at 555). The Court construes a pro se litigant’s pleadings liberally. Campbell v. Air Jam. Ltd., 760

F. 3d 1165, 1168–69 (11th Cir. 2014) (holding less stringent standards apply to pro se pleadings but cautioning courts not to rewrite an otherwise deficient pleading to permit action to stand). Count One – Title VII race discrimination

All four separate counts as amended now contain multiple paragraphs with factual content—an appropriate replacement for the previous single, conclusory

Development (“NHD”). Dkt. 15 ¶¶ 16, 20, 22, 135, 138, 139.5 Both Plaintiff and Mr. Alpers held supervisory roles and reported to Ms. Andreson or whoever may have held the position of Director of Health and Human Services at the relevant times.6 Mr. Alpers is Caucasian, and presumable still employed. Dkt. 15 ¶ 16. Plaintiff describes himself and Mr. Alpers as similarly situated because both held a management or supervisory position, and both reported to Ms. Andreson. He alleges he was terminated for a managerial style similar to Mr. Alpers’. Dkt.

15 ¶¶ 135–136, 139. Specifically, both he and Mr. Alpers were perceived as “harsh, harassing, controlling, belittling and authoritative” and both were “looking out for the best interest of [County] policies, internal program policies.” Id. ¶¶ 14,

20, 139.

Human Services, and the Human Resources Department. Id. ¶¶ 21, 140. Mr. Alpers introduced Ms. Andreson, the Director of Health and Human Services, to the man who became Ms. Andreson’s husband. Id. ¶¶ 21, 141. Both Mr. Alpers and Ms. Andreson are Caucasian. Plaintiff alleges he was not given the same benefit of the doubt as Mr. Alpers because Mr. Alpers is Caucasian, which was the “actual motivating factor” for terminating Plaintiff. Id. ¶¶ 22, 142, 146. Title VII provides two theories of liability for racial discrimination:

disparate treatment and disparate impact. Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Communities Project, Inc., 576 U.S. 519, 524 (2015); Ricci v. DeStefano, 557 U.S. 557, 577 (2009). Disparate treatment requires a plaintiff to establish the defendant had a discriminatory intent. Id. Disparate impact challenges a practice that disproportionately adversely affects a protected group. Id. The amended complaint attempts to allege a disparate treatment, not disparate impact, claim based on race: “The stated reasons for the Defendant’s conduct were not the true reasons, but instead were pretext to hide the Defendant’s discriminatory animus.” Dkt. 15 ¶¶ 129, 147. Liability in a disparate treatment claim “depends on whether the protected trait actually motivated the employer’s decision.” Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1345 (2015) (quoting Raytheon Co. v. Hernandez, 540 U.S. 44, 53 (2003)); Ricci, 557 U.S. at
577. Disparate treatment may be proven by establishing a pattern or practice of discrimination. E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F. 3d 1263, 1286–87 (11th Cir. 2000).7 As noted in this Court’s prior order, to establish a prima facie case of disparate treatment under Title VII, Plaintiff must show he was qualified for the position and a member of a protected class (race); he was subjected to adverse employment action (termination); and his employer treated similarly situated employees outside the protected class more favorably. Crawford v. Carroll, 529 F. 3d 961, 970 (11th Cir. 2008).

A prima facie case, however, refers to evidentiary proof, not the notice and plausibility standards applied to allegations of a complaint. See Andrews v. City of Hartford, 700 F. App’x 924, 925 (11th Cir. 2017) (per curiam) (reiterating that in

Title VII and ADEA cases, a complaint asserting employment discrimination need not contain specific facts establishing a prima facie case under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which is an evidentiary standard).8 In keeping with this distinction, the Court finds

One and the preceding 116-paragraph “fact” section into Count Two, thus rendering it technically a shotgun pleading. The Court finds, however, that it is no

To state a prima facie case of age discrimination under the ADEA, Plaintiff must allege: “(1) he was a member of the protected group between the age of 40 and 70; (2) he was subject to an adverse employment action; (3) a substantially younger person filled the position from which he was discharged; and (4) he was qualified to do the job.” Liebman v. Metro. Life Ins. Co., 808 F. 3d 1294, 1298 (11th Cir. 2015) (per curiam) (citation omitted). Plaintiff must also show that his age was the “but-for” cause of his termination. See Gross v. FBL Fin. Servs., Inc.,

557 U.S. 167, 176 (2009); Sims v. MVM, Inc., 704 F. 3d 1327, 1332 (11th Cir. 2013). Plaintiff alleges he was 40 in October 2016 when hired, 43 when promoted, and 44 when terminated. Dkt. 15 ¶¶ 9, 11, 23, 133, 149, 150, 154, 156. Plaintiff’s supervisory position was filled six months after discharge by Mr. Lesniewicz, who was below 40 (“in his 30s”). Id. ¶¶ 149, 150, 156. He also asserts that the qualifications for his position changed so that Mr. Lesniewicz would qualify. Id. ¶ 151.11

Although Plaintiff was already a member of the protected age group when he was hired, this count may proceed. Defendant may again argue that Plaintiff’s age was not the “but-for” cause of his termination.

Count Three – Retaliation (“Reprisal for Engaging in Protected Activities”) To establish a prima facie case of retaliation under Title VII, Plaintiff must show (1) he engaged in statutorily protected activity; (2) he suffered an adverse employment action; and (3) the adverse action was causally related to Plaintiff’s protected activity. Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F. 3d 1286, 1297 (11th Cir. 2006); Wideman v. Wal-Mart Stores, Inc., 141 F. 3d 1453, 1454 (11th Cir. 1998). Plaintiff alleges the statutorily protected activity was his contacting the Human Resources Employees Relation Manager (Mr. Velazquez) to request a meeting about Ms. Andreson giving him a second memorandum titled “One-Month Probation Extension.” Dkt. 15 ¶¶ 161, 163. He alleges he “engaged in protected activities when the Plaintiff submitted a written request to Human

Resources requesting an investigation of the Plaintiff’s immediate supervisor, as to why the Plaintiff was disciplined because he held the Caucasian and African

Andreson’s “racism toward African Americans, whereby she would refuse to enforce the same rules and regulations upon Caucasian employees . . . and committed the same to writing, which the Plaintiff delivered to the Human

Resources Department, the Plaintiff opposed a practice protected by Title VII and thereby engaged in protected activities.” Id. ¶ 175. The Court finds these allegations sufficient, though vague, that he opposed Ms. Andreson’s alleged differential treatment of employees based on race. While

Plaintiff may proceed past the dismissal stage, he must ultimately show that any protected activity was more than a “motivating factor” for his termination. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). He must affirmatively establish that he would not have been terminated but for his protected activity. See id. at 362 (noting causation in retaliation claims is established by showing the protected activity was the “but-for” cause of the adverse action). Count Three therefore stands.

Count Four – Hostile Work Environment Plaintiff alleges that he was subjected to “sufficiently severe or pervasive” harassment that created an abusive working environment. Dkt. 15 ¶¶ 195, 197. He supports this allegation by stating Ms. Andreson called him “into her office at least three times in three months, when she would scold the Plaintiff for holding Caucasian employees under his charge to the same rules and regulations that applied to all employees regardless of their race, and would threaten to create a disciplinary ‘paper trail’ and ultimately terminate the Plaintiff if he did not, for lack of better term, give the Caucasian employees impunity.” Dkt. 15 ¶ 195. At best, Plaintiff alleges that his authority was undermined by Ms. Andreson and he was treated unprofessionally and unfairly reprimanded for trying to implement proper company protocol with respect to employees reporting to work. Although Plaintiff subjectively believed her actions were based on his skin color, the amended complaint is devoid of any allegations of racial slurs or name-calling, let alone any that occurred with such frequency and severity as to interfere with Plaintiff’s job performance.

Plaintiff must plead facts to establish “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Fernandez v. Trees, Inc., 961 F. 3d 1148, 1152 (11th Cir. 2020) (citation omitted); Henderson v. City of Birmingham, 826 F. App’x 736, 743 (11th Cir. 2020) (citing Fernandez and affirming dismissal of complaint with prejudice).¹² None of the allegations paint a picture of an actionable hostile work environment based on race. The allegation that Mr. Lesniewicz and Mr. Kirkhart told Plaintiff “the only reason why you are in charge and working here is because we allow you to” does not involve race or rise to the level of a plausible racially hostile work environment under Title VII. See Dkt. 15 ¶¶ 33, 50. That Mr. Clark told Plaintiff he was asked to complain about Plaintiff to Ms. Andreson because Mr. Lesniewicz and Mr. Kirkhart wanted support from an African American, does not amount to a workplace permeated with “discriminatory intimidation, ridicule, and insult.” See Wilkerson v. H & S, Inc., 438 F. App’x 769, 770 (11th Cir. 2011) (citation omitted).13 There is no indication that anyone at the workplace ever uttered a racial slur. Plaintiff was given the opportunity to amend his complaint to add factual allegations to support a claim for hostile work environment and has failed to do so. The Court does not suggest Plaintiff attempt to replead this thin

UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO: Counsel of record and unrepresented parties