MARQUARDT

v.

OCEAN REEF COMMUNITY ASSOCIATION

THIS CAUSE came before the Court on Defendants, Ocean Reef Community Association (“ORCA”) and David Ritz’s Motion for Summary Judgment [ECF No. 65] filed January¹⁴, 2020. Plaintiff, Elizabeth Marquardt, filed a Corrected Response [ECF No. 100] on March⁵, 2020; to which Defendants filed a Reply [ECF No. 107] on March¹¹, 2020.1 The Court has carefully considered the Amended Complaint [ECF No. 50], the parties’ submissions, the record, and applicable law. For the following reasons, Defendants’ Motion is granted in part and denied in part.

I. BACKGROUND

This case concerns allegations of gender discrimination, retaliation, hostile work environment, constructive discharge, and violation of the Equal Pay Act, 29 U.S.C. section 206(d). (See generally Am. Compl.). Plaintiff is the former Vice President and Chief Financial Officer of

Oeltjen. (See id. ¶ 12). Plaintiff reported to Ritz. (See id. ¶¶ 5, 8). Plaintiff communicated with James nearly daily and saw him in person approximately once a week. (See Pl.’s SOF ¶ 58). Plaintiff alleges over the course of her employment there occurred numerous incidents, ranging from inappropriate comments to unwanted physical contact, that gave rise to, or were symptomatic of, a work environment hostile to women. (See generally Am. Compl.; Pl.’s SOF). Plaintiff reported some of the incidents to Ritz and other ORCA personnel and claims as a result she was ultimately constructively discharged. (See Pl.’s SOF ¶¶ 50, 65–66, 68, 73; Am. Compl. ¶¶ 42–45). Defendants dispute whether these incidents occurred, and the nature of the incidents, if they did. (See generally Mot.; Defs.’ SOF; Defs.’ Reply SOF). The Court reviews the incidents, grouped generally as follows.

A. Dress Code and Social Events

On multiple occasions, male ORCA employees socialized or attended events without Plaintiff. (See Defs.’ SOF ¶ 29; Pl.’s SOF ¶ 29). These outings included golfing, shooting, attending a Miami Dolphins game, watching football, and testing a new public safety boat. (See

70). Plaintiff told her subordinates they were not required to wear swimsuits at the events. (See id.). Plaintiff voiced an objection to Ritz about the events, but he disregarded it. (See id.; Defs.’ Reply SOF ¶ 70). There was no ORCA policy requiring employees to wear swimsuits at these events. (See Defs.’ SOF ¶ 34). In the workplace, ORCA had a dress code for men but not for women. (See Pl.’s SOF ¶ 69). Plaintiff observed female employees wearing revealing clothing and asked Ritz to implement a dress code for women as well as men. (See id.). Ritz did not mandate female employees wear scantily-clad clothing (see Defs.’ Reply SOF ¶ 70), but he declined Plaintiff’s invitation to implement a dress code for women (see Pl.’s SOF ¶ 69; Defs.’ Reply SOF ¶ 69).

B. Off-color Comments and Jokes about Female Employees

Plaintiff contends Ritz “invited or encouraged commentary regarding the appearance of the women in the office.” (Pl.’s SOF ¶ 71). On two occasions, Plaintiff overheard ORCA members comment that female ORCA employees were attractive. (See id.). In both instances, Ritz agreed with the comments but did not solicit them. (See id.; Defs.’ Reply SOF ¶ 71). Plaintiff informed Ritz one of the comments was inappropriate for the workplace, but Ritz responded she would have

C. Unwanted Touching

According to Plaintiff, she was twice hugged inappropriately at work, once in spring 2017 by an Ocean Reef Club board member and once in the fall 2017 by a public adjuster, a non-OCRA employee with whom Plaintiff worked. (See Pl.’s SOF ¶¶ 37, 67–68). After the first hug, Plaintiff complained to Ritz, who dismissed her concern and stated she should “put up with” the board member. (Pl.’s SOF ¶ 67 (internal quotation marks omitted); see also Defs.’ Reply SOF ¶ 67). Plaintiff also complained to Ritz after the second hug, and he responded “Liz, you are the CFO. You just need to do whatever it takes to get our insurance money.” (Pl.’s SOF ¶ 68 (internal quotation marks omitted); Defs.’ Reply SOF ¶ 68). There are no allegations the individuals touched Plaintiff’s breasts or private parts. (Defs.’ SOF ¶¶ 23–25). Plaintiff contends she “observed . . . multiple instances of James inappropriately touching female employees.” (Pl.’s SOF ¶ 66 (alteration added)). Specifically, Plaintiff saw James hug three female employees in a manner which appeared to Plaintiff to make the employees uncomfortable. (See id.). Plaintiff reported the conduct to Ritz and Lunsford. (See id.). According to Defendants, James did not touch the employees’ breasts or private parts and Plaintiff did not observe the women pushing James away or asking him to stop. (See Defs.’ SOF ¶¶ 24–25). In 2016, Plaintiff was informed James hit a female public safety officer under James’s supervision, Hilary Matas, on the buttocks with a folder as she passed by him. (See Defs.’ SOF ¶ 26; Pl.’s SOF ¶ 61).4 Plaintiff did not witness the incident herself; James’s assistant, Nicole Molnar, witnessed and reported it to the Monroe County Sheriff’s Department. (Pl.’s SOF ¶¶ 61– 62; Defs.’ Reply SOF ¶¶ 61–62). An investigation ensued, but it was concluded that nothing had happened.⁵ (See Pl.’s SOF ¶ 62). Matas resigned after the incident, as did Molnar. (See id. ¶ 63). Defendants do not dispute the resignations but dispute the “resignations had any connection to the allegation” James touched Matas inappropriately. (Defs.’ Reply SOF ¶ 63). Defendants point out Matas stated in her resignation letter “I want to begin by saying how blessed I feel that I have been able to serve this community, none the less [sic] with the amazing leaders and personnel that have been at my side helping to mold me into the person I am today . . . .” (Defs.’ Reply SOF ¶ 63 (quoting May¹³, 2016 Resignation Email [ECF No. 95] 1227 (internal quotation marks omitted))).⁶ James testified that he did not touch Matas on the buttocks but rather on her lower back with a file folder. (See Defs.’ Reply SOF ¶ 61). After Matas resigned, James informed Lunsford that Matas had failed to give ORCA two weeks’ notice. (See Pl.’s SOF ¶ 64). ORCA’s policies provided employees who resign with less than two weeks’ notice were not entitled to payment for accrued paid time off (“PTO”). (See id.).

Subsequently, an anonymous emailer under the name “Grpking” “broadcast[ed] . . . the Matas incident to several ORCA employees and board members.” (Id. (alterations added; first internal quotation marks omitted)). Following the email, James asked ORCA’s HR Director to compensate

ORCA female employees. (See id.; Dagnesses Dep. 33:21–34:5). During her employment, Plaintiff learned Ritz hired a woman, LeeAnne Yule, with whom he had a prior romantic relationship. (See Pl.’s SOF ¶ 74). Plaintiff contends Ritz created a position for Yule at ORCAT, an entity related to ORCA. (See id.).⁷ According to Yule, whose Declaration (see [ECF No. 95] 1282–83) Plaintiff submits in support of her Response, Yule and

1285–87). Yule states Ritz groped and kissed her “anytime he was alone with her” at the ORCA and ORCAT offices, and points to two specific incidents of unwanted sexual touching in November⁹ and December 2018. (Id. 1285; see also id. 1286). According to Yule, she “resigned [her] employment on or around September 2018, as a direct result of the hostile work environment [she] experienced, which continued unabated.” (Yule Decl. ¶ 8 (alterations added)). After Plaintiff resigned, she learned Yule had brought a sexual harassment lawsuit against Ritz. (See Defs.’ SOF ¶ 54). Plaintiff was unaware of Yule’s lawsuit while she was employed at ORCA. (See id.; Pl.’s SOF ¶ 54). E. Photographs of Nude Women on Ritz’s Computer Ritz maintained a website depicting photographs of nude women. (See Pl.’s SOF ¶ 75).

The photographs were “not traditional photographs” but “were stylized and edited in an artistic manner such that the woman in the photograph could not be identified.” (Defs.’ Reply SOF ¶ 75). Plaintiff contends at least one of the photographs on the website was of Yule. (See Pl.’s SOF ¶ 75 (citing Yule Decl. ¶ 6); Defs.’ Reply SOF ¶ 75). As noted, Yule states Ritz took multiple

Plaintiff did not ask Ritz what he meant by this comment. (See Defs.’ SOF ¶ 41). Plaintiff understood the comment “to mean that if she continued to complain about James, her job would be in jeopardy.” (Pl.’s SOF ¶ 73). Also, in December, Plaintiff emailed ORCA’s board members¹⁰ a “law firm circular regarding the duties of the Board in investigating sexual harassment.” (Id.).

G. Threatened and Actual Demotions of Female Employees

At the December 2017 meeting attended by Plaintiff, Lunsford, and Ritz, Lunsford reported ORCAT Director Susan Hershey had objected to James repeatedly “creeping out” female ORCA employees during visits to ORCA. (Pl.’s SOF ¶ 77 (internal quotation marks omitted; quoting Oct. 21, 2019 Marquardt Dep. 139:1)).¹¹ One week after the meeting, Ritz proposed to Plaintiff that

Hershey be demoted and her salary be cut by $10,000.00. (See id.). Defendants do not dispute Ritz proposed demoting Hershey but dispute the insinuation Ritz’s proposal was connected to Hershey’s complaint about James. (See Defs.’ Reply SOF ¶ 77).

Three days later, Plaintiff resigned. (See id. ¶ 43). Plaintiff submitted a resignation letter (see Resignation Letter [ECF No. 67-22]), starting the reasons for her resignation, including James’s alleged sexual harassment. (See generally Resignation Letter). After Plaintiff’s resignation, ORCA initiated an investigation in response to the allegations in Plaintiff’s resignation letter. (See Pl.’s SOF ¶ 60 (Wishnack Dep. [ECF No. 95] 747–898, 36:19- 39:4)). Ritz was terminated without cause by the ORCA board in 2019. (Pl.’s SOF ¶ 60; Defs.’ Reply SOF ¶ 60). Plaintiff contends James “also departed his employment in 2019 following the ORCA Board’s decision to give James the choice to resign or be terminated by ORCA.” (Pl.’s SOF ¶ 60). According to Plaintiff, Ritz and James departed ORCA as a result of the investigation prompted by her resignation letter. (Id.). Defendants dispute Plaintiff’s assertion. (Defs.’ Reply SOF ¶ 60). This lawsuit followed. Plaintiff brings claims against ORCA for retaliation under Title VII, the Florida Civil Rights Act (“FCRA”) and the Florida Whistleblower Act (“FWA) (Counts I and II); hostile work environment under Title VII and the FCRA (Count III); constructive discharge due to hostile work environment under Title VII and the FCRA (Count IV); gender discrimination under Title VII and the FCRA (Count V); and against ORCA and Ritz for violation of the Equal Pay Act (Count VI). Defendants seek summary judgment as to all claims for relief.

II. LEGAL STANDARD

Summary judgment may only be rendered if the pleadings, discovery and disclosure materials on file, and any affidavits show there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. See Fed R. Civ. P. 56(a), (c). An issue of fact is “material” if it might affect the outcome of the case under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). It is “genuine” if the evidence could lead a reasonable jury to find for the non-moving party. See id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Court draws all reasonable inferences in favor of the party opposing summary judgment. See Chapman v. AI Transp., 229 F. 3d 1012, 1023 (11th Cir. 2000). “Summary judgment may be inappropriate even where the parties agree on the basic facts, but disagree about the inferences that should be drawn from these facts.” Whelan v. Royal Caribbean Cruises Ltd., No. 1:12-cv-22481, 2013 WL 5583970, at *2 (S.D. Fla. Aug.¹⁴, 2013) (citation omitted). Indeed, “[i]f reasonable minds might differ on the inferences arising from undisputed facts, then the Court should deny summary judgment” and proceed to trial. Id. (alteration added; citations omitted).

III. ANALYSIS

A. Hostile Work Environment and Constructive Discharge (Counts III and IV) A claim for hostile work environment requires that Plaintiff show (1) she belongs to a protected group; (2) she has been subject to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) the harassment was based on Plaintiff’s sex; (4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of Plaintiff’s employment and create a discriminatorily abusive working environment; and (5) there is a basis for holding Plaintiff’s employer liable. See Gupta v. Fla. Bd. of Regents, 212 F. 3d 571, 582 (11th Cir. 2000) (citing Mendoza v. Borden, Inc., 195 F. 3d 1238, 1245 (11th Cir. 1999) (en banc)). “Establishing a constructive discharge claim is a more onerous task than establishing a hostile work environment claim.” Bryant v. Jones, 575 F. 3d 1281, 1298 (11th Cir. 2009) (citations omitted). In order to prove constructive discharge, Plaintiff “must demonstrate a greater severity or pervasiveness of harassment than the minimum required to prove a hostile working environment.” Landgraf v. USI Film Prods., 968 F. 2d 427, 430 (5th Cir.1992) (emphasis added; citation omitted). Because the Court finds Plaintiff has not proffered evidence that Defendants’ alleged harassment was “sufficiently severe or pervasive to alter the terms and conditions of [her] employment,” Gupta, 212 F. 3d at 582, Plaintiff’s hostile work environment and constructive discharge claims may not proceed to trial. Quite simply, Plaintiff’s disputed facts are insufficient to establish an intolerable working environment when read against prevailing Eleventh Circuit law. Preliminarily, the Court notes because Plaintiff was unaware of Yule’s sexual harassment lawsuit against Ritz and the photographs on Ritz’s website, Plaintiff may not rely on these allegations to support her hostile work environment and constructive discharge claims. See Adams v. Austal, U.S.A., L.L.C., 754 F. 3d 1240, 1245 (11th Cir. 2014) (noting “an employee alleging a hostile work environment cannot complain about conduct of which he was oblivious for the purpose of proving that his work environment was objectively hostile”) Absent these facts, the Court reviews Plaintiff’s evidence, construed in the light most favorable to her, and assesses Plaintiff’s evidence against Eleventh Circuit precedent. Plaintiff presents evidence that over the course of her two-year employment:  She was excluded from several events attended by her male colleagues (see Pl.’s SOF ¶ 29);

 She was subjected to two unwanted hugs, which hugs Ritz indicated Plaintiff should tolerate (see id. ¶¶ 37, 67–68);

 She objected to offensive gender-based comments from ORCA members, which comments Ritz indicated Plaintiff should tolerate (see id. ¶ 71);

 Ritz made at least six offensive gender-based comments, including one joke about anal sex (see id. ¶ 72);

 She witnessed James hug three female employees, and the employees appeared uncomfortable (see id. ¶ 66); and

 She was aware James was accused of hitting an employee on the buttocks with a folder (see id. ¶ 61).

Even assuming the hugs Plaintiff observed were sexual in nature (which contention Defendants dispute (see Mot. (3–5)), the described conduct is less “severe and pervasive” than other conduct failing the summary judgment bar in this Circuit. In analyzing hostile work environment, the “fourth element — that the conduct complained of was sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment — is the element that tests the mettle of most sexual harassment claims.” Gupta, 212 F. 3d at 583 (quotation marks and citation omitted). Regarding conduct of a gendered or sexual nature, courts consider “(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 employee’s job performance.” Id. at 584 (quoting Mendoza, 195 F. 3d at 1246; internal quotation marks omitted). In this respect, Gupta is instructive. Noting Title VII is “not a general civility code,” id. at 583 (internal quotation marks omitted; quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)), the Gupta court found a plaintiff-employee’s allegations her defendant-colleague (1) frequently commented on her appearance; (2) frequently called her at night and on the weekends and asked about her boyfriend; (3) made isolated comments about the superiority of men compared to women and compared women to meat; (4) once unbuckled his belt and pulled down his zipper to tuck his shirt in when the plaintiff walked in on him in his undershirt;¹² (5) once placed his hand on the plaintiff’s knee; and (6) once lifted up the hem of the plaintiff’s dress when inquiring about the material, did not constitute conduct sufficiently severe or pervasive to overcome summary judgment. See id. at 584–86. In so reasoning, the Gupta court (1) emphasized the plaintiff “failed to present evidence [the defendant]’s conduct was in any way physically threatening or humiliating,” id. at 586 (internal quotation marks omitted; quoting Mendoza, 195 F. 3d at 1246); and (2) noted “[a]ll of the sexual hostile environment cases decided by the Supreme Court have involved patterns or allegations of extensive, long lasting, unredressed, and uninhibited sexual threats or conduct that permeated the plaintiffs’ work environment[,]” id. (alterations added; internal quotation marks omitted; quoting Indest v. Freeman Decorating, Inc., 164 F. 3d 258, 264 (5th Cir. 1999) (citations omitted)). As in Gupta, “[t]his is not such a case.” Id. (alteration added). The conduct shown by Plaintiff is certainly inappropriate, but it did not “permeate” Plaintiff’s day-

As to the other incidents of physical conduct (those Plaintiff experienced and witnessed), although Plaintiff states they caused discomfort or embarrassment (see Pl.’s SOF ¶¶ 66–67), she does not contend she or her female colleagues felt threatened or humiliated. Finally, Plaintiff does not show Ritz’s or James’s comments or behavior interfered with her job performance, notwithstanding Plaintiff’s frequent contact with both men. Defendants emphasize Plaintiff received only positive performance reviews and salary increases (see Defs.’ SOF ¶¶ 12, 16), and the Court can identify no evidence prior to Plaintiff’s resignation tending to show her work product suffered because of the allegedly hostile environment. Viewed in the light most favorable to Plaintiff, the record does not raise a triable issue of fact that the conduct experienced by Plaintiff was “sufficiently severe or pervasive to alter the terms and conditions of Plaintiff’s employment and create a discriminatorily abusive working environment.” Plaintiff’s hostile work environment and constructive discharge claims in Counts III and IV, respectively, fail.

B. Retaliation Claims (Counts I and II) Plaintiff brings two retaliation claims, the first under Title VII and the FCRA and the second under the FWA. The Court addresses these claims together because “retaliation claims under the FCRA are substantively similar to Title VII retaliation claims,” Howard v. Walgreen Co., 605 F. 3d 1239, 1244 n.4 (11th Cir. 2010) (citation omitted), and “the summary judgment analysis for a Title VII retaliation claim [is] applied to a claim of retaliatory discharge under the Florida Whistleblower Act[,]” Rutledge v. SunTrust Bank, 262 F. App’x 956, 957–58 (11th Cir. 2008) (alterations added). “To establish a prima facie case of retaliation, the plaintiff must show that (1) she engaged in statutorily protected activity; (2) she suffered a materially adverse employment action; and (3) there was a causal link between the two.” Gowski v. Peake, 682 F. 3d 1299, 1311 (11th Cir. 2012) (citation and footnote call number omitted). “When analyzing a retaliation claim based on circumstantial evidence, we usually employ the McDonnell Douglas analytical framework.” Calvert v. Doe, 648 F. App’x 925, 928 (11th Cir. 2016) (citation omitted). Under the McDonnell Douglas three-part, burdenshifting analysis: (1) the plaintiff must establish a prima facie case of retaliation; and if so (2) the burden shifts to the defendant to offer a legitimate, nondiscriminatory reason for its employment decision; and if it does (3) the burden shifts back to the plaintiff to establish the reason offered by the defendant was not the real basis for the decision, but mere pretext for discrimination. See Johnson v. Miami-Dade Cty., 948 F. 3d 1318, 1325 (11th Cir. 2020) (citations omitted). “However, the McDonnell Douglas framework ‘is not the sine qua non for a plaintiff to survive summary judgment in a discrimination case.’” Calvert, 648 F. App’x at 929 (quoting Sims v. MVM, Inc., 704 F. 3d 1327, 1333 (11th Cir. 2013)). “A triable issue of fact exists if the record, viewed in a light most favorable to the plaintiff, presents a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker.” Smith v. Lockheed- Martin Corp., 644 F. 3d 1321, 1328 (11th Cir. 2011) (citation, internal quotation marks, and footnote call number omitted). A “plaintiff will always survive summary judgment if [she] presents circumstantial evidence that creates a triable issue concerning the employer’s discriminatory intent.” Id. at 1328 (alteration added; citations omitted). A plaintiff may present a “convincing mosaic” through circumstantial evidence consisting of “(1) suspicious timing, ambiguous statements, similar behavior directed at other members of the protected group, and ‘other bits and pieces from which an inference of discriminatory intent might be drawn’; (2) systematically better treatment of those outside the protected class; and (3) pretext in the employer’s justification.” Smith v. City of New Smyrna Beach, 588 F. App’x 965, 976 (11th Cir. 2014). Plaintiff argues her case survives summary judgment as analyzed either under the McDonell Douglas framework or under Smith’s “convincing mosaic” standard. The Court agrees. Prima facie case. Plaintiff makes a prima facie case for retaliation. As noted, Plaintiff must show (1) she engaged in statutorily protected activity; (2) she suffered a materially adverse employment action; and (3) there was a causal link between the two. Plaintiff’s opposition to “ORCA’s discriminatory and hostile treatment of women” (Compl. ¶ 31) and her “informal reports of illicit conduct to her supervisor Ritz” (Resp. 7) constitute statutorily protected activity. “A plaintiff engages in statutorily protected activity when [she] complains about an action that [she] reasonably believed was unlawful under Title VII.” Banks v. iGov Techs., Inc., 661 F. App’x 638, 645 (11th Cir. 2016) (alterations added; citation omitted). “[T]he protection afforded . . . extends as well to those . . . who informally voice complaints to their superiors or who use their employers’ internal grievance procedures.” Rollins v. State of Fla. Dep’t of Law Enforcement, 868 F. 2d 397, 400 (11th Cir. 1989) (alterations added; citations omitted). “Statutorily protected expression includes . . . complaining to superiors about sexual harassment.” Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F. 3d 501, 507 (11th Cir. 2000) (alteration added; citing Rollins, 868 F. 2d at 400). “[T]his standard has both a subjective and an objective component.” Little v. United Techs., Carrier Transicold Div., 103 F. 3d 956, 960 (11th Cir. 1997) (alteration added). “[P]laintiff must not only show that [she] subjectively (that is, in good faith) believed that [her] employer was engaged in unlawful employment practices, but also that [her] belief was objectively reasonable in light of the facts and record presented.” Id. (alterations added; emphasis in original). A plaintiff may have a “reasonable good faith belief” she was being sexually harassed even where the “conduct [] complained about was not so severe and pervasive that it altered her working conditions[.]”

Gupta, 212 F. 3d at 586 (alterations added; internal quotation marks and citations omitted); see also id. at 586, 592 (finding the plaintiff made a prima facie case for retaliation notwithstanding her failure to show alleged sexual harassment was severe or pervasive). Plaintiff reported James’s inappropriate conduct to Ritz at least three times. (See Pl.’s SOF ¶¶ 67–69, 71, 73). Plaintiff also reported to Lunsford that James hit Matas on the buttocks with a file folder. (Pl.’s SOF ¶ 66; Defs.’ Reply SOF ¶ 66; see also Marquardt Dep. 178:2–10).13 These various reports constitute statutorily protected activity. See Rollins, 868 F. 2d at 400.

CIV.A. 08–283, 2009 WL 1286006, at *12 (S.D. Ala. May⁷, 2009) (reviewing unwanted physical contact (including hugging) and verbal comments holistically and concluding the plaintiff “established a genuine issue of material fact as to whether the physical contact initiated by [the defendant] was because of Plaintiff’s sex” (alteration added)); see also Tingle v. City of Birmingham, No. 4:12-cv-8, 2013 WL 5295766, at *13, 18 (N.D. Ala. Sept. 18, 2013) (“[H]ugging and touching the plaintiff’s knee are not necessarily sexual acts. However, in the context of the other undisputed conduct . . . and resolving all inferences in favor of the plaintiff, the court concludes that there is a genuine issue of material fact as to whether the conduct was sexual.” (alterations added; citation and internal quotation marks omitted)). At the time Plaintiff complained about James’s “hugs,” she was also aware of allegations James had hit Matas on the

Oeltjen a bonus and withheld one from Plaintiff in the same month she made her last complaint about James’s inappropriate conduct. (See Pl.’s SOF ¶ 82). Defendants’ Justification for their Employment Decision. Defendants do not contest Plaintiff was not given a bonus but argue “the record makes crystal clear why Oeltjen received a bonus for his Hurricane Irma work and Plaintiff (along with two other male VPs) did not.” (Reply 16). Not so. While Oeltjen worked¹⁰–12 hours per day the week preceding Hurricane Irma and was responsible for various Hurricane-related clean up tasks, Plaintiff’s “work on ORCA’s Hurricane Irma insurance claims was equivalent to a second-full time job to which Plaintiff devoted approximately thirty additional hours every week.” (Pl.’s SOF ¶ 82). Plaintiff further contends she “worked on a daily basis with Oeltjen on shared tasks that included surveying damage in the field to gather information relevant to ORCA’s insurance claims; inventorying damage; attending regular meetings with public adjusters and contractors; and submitting information to public adjusters, among other tasks.” (Id.). Plaintiff also asked Ritz why she had not received a bonus and he replied not that Oeltjen had completed different work, but that there was not room in the budget. (See Oct. 21, 2019 Marquardt Dep. 212:1–3). Evidence of Pretext. Even if Defendants offered clear, legitimate, non-discriminatory reasons for awarding Oeltjen a bonus and not Plaintiff, Plaintiff presents evidence of pretext. “A plaintiff withstands summary adjudication by producing sufficient evidence to allow a reasonable finder of fact to conclude that the defendant’s articulated reasons for its decision are not believable.” Jackson v. State of Alabama State Tenure Comm’n, 405 F. 3d 1276, 1289 (11th Cir. 2005) (alteration adopted; citations and internal quotation marks omitted). The Court considers “whether the plaintiff has demonstrated such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.” Id. (internal quotation marks and citation omitted). Plaintiff points to the discrepancy between Ritz’s testimony he asked Wishnack about Plaintiff’s bonus and Wishnack’s testimony he did not recall Ritz’s inquiry. (See Pl.’s SOF ¶ 81; Defs.’ Reply SOF ¶ 81). Plaintiff also correctly notes the record is “replete with evidence of Ritz’s own gross misconduct as it relates to the ORCA female work force.” (Resp. 16). While Plaintiff was unaware of many of the allegations of Ritz’s misconduct (including Yule’s sexual harassment suit and Ritz’s website with sexually suggestive photographs, including a photograph of Yule), Plaintiff is correct an employee may introduce evidence of harassment of which she is not personally aware to prove her employer is responsible for the harassment or to rebut an affirmative defense. See Goldsmith v. Bagby Elevator Co., 513 F. 3d 1261, 1285–86 (11th Cir. 2008). The Court agrees with Plaintiff a “jury could conclude that ORCA’s and Ritz’s proffered business justifications are thin cover for Ritz’s retaliation against Plaintiff and sexualized views of women in the workplace.” (Resp. 16). Plaintiff’s retaliation claims may proceed.

C. Discrimination and Violation of the Equal Pay Act (Counts V and VI) Plaintiff argues she presents a genuine issue of material fact for gender discrimination based upon disparate treatment and hostile work environment. (See Resp. 17–18). The Court only considers Plaintiff’s theory of disparate treatment given it has already concluded Plaintiff’s hostile work environment claim fails. To make a prima facie case for gender discrimination Plaintiff must show (1) she was a member of a protected class; (2) she was qualified for the job; (3) she suffered an adverse employment action; and (4) similarly situated employees outside the protected class were treated differently. Holland v. Gee, 677 F. 3d 1047, 1055 (11th Cir. 2012) (citation omitted). Defendants do not contest the first or second elements. (See Mot. 19–20; Reply⁶). As to the third element, Defendants argue “Plaintiff testified that the reason she did not receive the same bonus as Oeltjen was because she complained about James’s treatment of women. Accordingly, Plaintiff is not alleging that the Hurricane Irma bonus supports her gender discrimination claim.” Mot. 19 (citation and footnote call number omitted)). The Court disagrees. Defendants offer no case law supporting the contention Plaintiff’s discrimination claim cannot rely on the same allegation of adverse action (here, the denial of Plaintiff’s bonus) as her retaliation claim. (See Resp. 17). The law indicates the opposite. See Crawford v. Carroll, 529 F. 3d 961, 969, 975 (11th Cir. 2008) (finding a negative performance evaluation resulting in the plaintiff being denied a pay increase supported the plaintiff’s retaliation claim as well as her disparate pay claim). Defendants’ subsequent assertion the “only conduct Plaintiff relies upon for her gender discrimination claim is . . . she was excluded from social outings” (Mot. 19–20 (alteration added)) misses the mark. As to the fourth element, Plaintiff has presented evidence a similarly situated individual outside her protected class — Oeltjen — was treated differently. Working under the McDonnell Douglas framework, the “proper test for evaluating a comparator” requires that Plaintiff show the comparator is “similarly situated [to Plaintiff] in all material respects.” Lewis v. City of Union

City, Georgia, 918 F. 3d 1213, 1218 (11th Cir. 2019) (citation and second internal quotation marks omitted). Courts consider whether the employee and the alleged comparator engaged in the same basic conduct (or misconduct); shared similar employment or disciplinary histories; were subject to the same employment policy, guidelines, or rules; or were under the jurisdiction of the same supervisor. See id. at 1227. Plaintiff and Oeltjen were both vice presidents, reported to Ritz, and worked substantially long hours on Hurricane Irma-related tasks. (Compare Defs.’ SOF ¶ 47 (stating Oeltjen worked¹⁰ to 12-hour days the week immediately after Hurricane Irma) with Pl.’s SOF ¶ 82 (stating Plaintiff worked 12-hour days in the week leading up to and the week after Hurricane Irma)). Although Defendants contend Oeltjen’s work was qualitatively different from Plaintiff’s, they fail to dispute Plaintiff’s assertion she and Oeltjen “shared tasks that included surveying damage in the field to gather information relevant to ORCA’s insurance claims; inventorying damage; attending regular meetings with public adjusters and contractors; and submitting information to public adjusters.” (Pl.’s SOF ¶ 82; Defs.’ Resp. SOF ¶ 82). Neither do Defendants dispute Plaintiff’s testimony that at least part of the reason Oeltjen received a bonus was for the work “getting the insurance claim together.” (Defs.’ SOF ¶ 81 (internal quotation marks omitted)). Given the foregoing, Plaintiff presents a prima facie case for disparate treatment. Further analysis of Defendants’ alleged non-discriminatory reason for the adverse employment action (the denial of Plaintiff’s bonus) and Plaintiff’s evidence of pretext is not necessary, as the Court has already reached conclusions on these points. Therefore, Plaintiff’s gender discrimination claim may proceed. The conclusion is the same with respect to Plaintiff’s claim for violation of the Equal Pay Act. Considering its previous analysis, the Court finds unavailing Defendants’ argument “Plaintiff’s Response “does nothing to show how Oeltjen’s on-site operational work was similar to that done by Plaintiff in connection with the insurance claim.” (Reply¹¹). As Plaintiff correctly notes, under the Equal Pay Act, she “need not prove that her job and those of the comparators are identical; the test is one of substantiality, not entirety.” Saridakis v. S. Broward Hosp. Dist., 681 F. Supp. 2d 1338, 1352 (S.D. Fla. 2009) (quotation marks and citation omitted). What matters is whether there is a triable issue of fact Plaintiff was paid less than a male employee for similar work. See id. at 1353. There is one.¹⁵

IV. CONCLUSION

For the foregoing reasons, it is ORDERED AND ADJUDGED that Defendants, Ocean Reef Community Association and David Ritz’s Motion for Summary Judgment [ECF No. 65] is GRANTED in part and DENIED in part. Defendants’ Motion is DENIED with respect to Counts

I, II, V, and VI. Summary judgment in favor of Defendant ORCA is granted as to Counts III and

IV.

CECILIA M. ALTONAGA

UNITED STATES DISTRICT JUDGE cc: counsel of record