Stacy Tebo’s Appeal – Part 2 – Tebo’s attorney Takes the City of DeBary to task and requests this be remanded to a jury trial

STANDARD OF REVIEW

 

Summary judgment is appropriate only when no genuine issue of material fact exists and the defendant as a moving party, is entitled to judgment as a matter of law.

 

Although the Court should review the record as a whole “it must disregard all evidence favorable to the moving party that the jury is not required to believe”

 

As the summary judgment state “The Judge’s function is not….to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”

 

The inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”

 

Summary judgment is improper if there is any genuine issue of material fact, even if it is created by the testimony of a party.

 

The aforementioned all include specific court cases.

 

SUMMARY OF THE ARGUMENT

 

Appellant Stacy Tebo argues that the district court erred in holding that Tebo offered insufficient evidence to establish as pretextual the reasons proffered for her discharge by the City and Parrott.

Tebo demonstrates that a reasonable jury could find pretext from the mosaic of evidence she has presented, with or without comparators.

Tebo demonstrates that Parrott’s discriminatory motive is shown by his use of sexist terms for women, coupled with his negative comments about women in the workplace, and his stated desire to not hire a woman to replace the City’s Finance Director.

Parrott’s retaliatory animus is shown by the short time in which he terminated Tebo’s employment after she filed her Informal EEOC Complaint, as well as his investigation of her to find some other basis for discharging her and his use of some events that pre-date by several years the decision to terminate that are specifically related to her prior complaints about his discriminatory language and actions to several council members.

 

A jury could reasonably conclude that his discriminatory and retaliatory animus infected his decision-making regarding his evaluation of the reasons for discharge and could find that Defendants discriminated against her based on her gender and sex and retaliated against her for filing an Informal EEOC Complaint –  IF THIS ISN’T A BUNCH OF CRAP – I DO NOT KNOW WHAT IS.  THEY SHOULD SEE WHAT STACY TEBO IS DOING TO OUR TOWN.

 

Accordingly, Tebo requests that this Court reverse the District Court’s decision, deny the Defendant’s Motion for Summary Judgment and remand for further proceedings on facts.

 

 

ARGUMENT AND CITATION OF AUTHORITIES

DEFENDANT’S DISCRIMINATED AGAINST TEBO BECAUSE OF HER GENER AND IN RETALLIATION IN VIOLATION OF TITLE VII, U.S.C.  1983 and FCRA.

 

In her gender Discrimination claim, Tebo contends that the City and Parrott discriminated against her on account of her gender in its termination of her employment.

 

The City claims Tebo was fired as a result of a number of incidents of insubordination and acts of disloyalty.  The purported acts of insubordination and disloyalty the City identified were complaints made by Tebo to  City’s council members about City Manager

At summary judgment, the Court must consider all evidence in the light most favorable to the nonmoving party and must draw all reasonable interferences in favor of the nonmoving party (Tebo).

 

At the summary judgment state, the Judge’s function is not…to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.

 

The inquiry is Whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.

 

Tebo abandons any claim of hostile work environment.

 

Tebo separately addresses the legal argument regarding her retaliation claim below but because the evidence for the two claims are intertwined, she addresses the two claims together where appropriate regarding the underlying facts and in showing pretext (The Blissett Case intertwined with Tebos, where Bissett won her case and Tebo Lost at the District Level)

 

Parrott’s discriminatory actions and comments that resulted in the termination of Tebo’s employment, even though multiple other reasons were formally given.

 

The district court examined two reasons given for Tebo’s termination and held that Tebo failed to call into question Parrott’s believe that these reasons were valid (Maguire emails) and (Mayor’s report).

 

The resolution of this case revolves around this point:  does evidence of a decision maker’s discriminatory animus prevent the Court from entering summary judgment where every one of the reasons stated for discharge rely upon resolution of whether the discriminatory decision maker held a good faith belief that the facts were true?

 

 

ESTABLISHING THE PRIMA FACIE CASE OF SEX DISCRIMINATION

FCRA prima facie case is not onerous; it requires only that the plaintiff (Tebo) establish facts adequate to permit an inference of discrimination.

 

Tebo is able to make a prima facie case:  (1) as a woman, she is a member of a protected class;  (2) her favorable performance evaluations and length of time in the positin show she was qualified for the position from which she was terminated, which is undisputed (THAT IS UNTIL TEBO BECAME AN ABUSER OF OPIOID DRUGS)   (3) it is undisputed that she was terminated from her position; and (4) she was treated less favorably than male employees who were not treated to demeaning comments on account of their gender, who had no reason to complain about discriminatory treatment to council members, who had no reason to file a Charge of Discrimination with the EEOC, and who did not get discriminatorily terminated from their employments.

 

The City disputed whether Tebo can establish a comparator arguing there was no male employee who directly reported to Parrott, who went behind his back to complain to City Council members, and/or who encouraged other employees to complain about him, in an effort to force him from his City Manager position.

 

Tebo is able to show by a convincing mosaic of circumstantial evidence that a jury would infer intentional discrimination.

 

TEBO ESTABLISHED A GENUINE ISSUE OF MATERIAL FACT FOR HER GENDER CLAIMS THROUGH THE PRESENTATION OF A MOSAIC OF CIRCUMSTANTIAL EVIDENCE.

 

Tebo has produced sufficient evidence to create an inference that the City intentilnally discriminated against her when she was discharged.

 

Even without similarly situated comparators, “The plaintiff (TEBO) will always survive summary judgment if he (or she) presents circumstantial evidence that creates a triable issue concerning the employer’s discriminatory intent.

 

A “convincing mosaic” may be shown by evidence that demonstrates, among other things (1) suspicious timing, ambiguous statements….and other bits and pieces from which an inference of discriminatory intent might be drawn”  (2) systematically better treatment of similarly situated employees, and (3) tha the employer’s justification is pretextual.

 

Tebo presented a mosaic of circumstantial evidence that raises genuine issues of aterial fact from which a jury would be entitled to conclude that the City’s actions in regard to her were discriminatory and that Parrott developed the stated reasons for her discharge as post hoc justification for firing her in an attempt to hide his discriminatory animus.

 

Significantly, Parrot developed the purported reasons for discharge subsequent to deciding to terminate her almost immediately after she filed her Informal EEOC Complaint, basing the termination in part on events that had happened as much as two years prior to the termination.

 

Parrott testified that he had wanted to fire Tebo before because she had complained about him to City Council members.  These complaints were made in 2013 about Parrott’s sexist and derogatory comments about women and about his preference for a man to replace the City’s Finance Director.

 

In 2013 Parrott had delayed replacing the male finance director because he was unable to locate a male replacement, stating he did not want to hire any more women and that “there’s too much estrogen upstairs”.

 

Tebo related Parrot’s sexist statements to several council members, along with information regarding why the male finance director withdrew his resignation and the amount of money being paid to keep him in place while Parrott continued to search for a male replacement.

 

A jury may reasonably infer that a council member (or maybe the City attorney) may have told Parrott that he needed to hire the most qualified applicant instead of waiting for a qualified male applicant, based on Parrott’s words and the angry tone, Tebo reports he used toward her in their November 20, 2014 meeting when relaying his displeasure about her speaking with the council members about him.

 

The timing of the decision to discharge her is also evidence of causation between her protected activity and her termination as is discussed more in the section on retaliation.

 

A jury could also reasonably infer that the true motivation for her discharge was her “disloyalty” in filing with the EEOC, an event far closer in time to her discharge than the 2013 complaints to the council members; in other words, in retaliation for filing with the EEOC.

 

Defendants falsely try to couch Tebo’s complaints to the council members as exhibiting a lack of loyalty to Parrott, but in reality the complaints instead show Tebo’s desire for a workplace free of discrimination.  

 

Defendants use of this so called lack of loyalty is a misguided attempt at redirecting and reshaping Tebo’s protected activity of complaining about Parrott’s sex discrimination to the City Council members into a legitimate basis for terminating her employment.  Such an argument turns on hits head the very premise of the legal protections afforded by the anti-discrimination laws- if this kind of loyalty was required of all employees, then no person subjected to discrimination would have any protection discrimination or retaliation.

 

Parrott’s statements for preference of a man for positions under his supervision are circumstantial evidence of discrimination, as are his negative statements about women.

 

That Parrott ultimately hired a woman as Finance Director does not negate the fact that he did not want to do so.  A jury could reasonably conclude that the circumstances surrounding Parrott’s statements prove that bias played a role in Parrott’s decision to fire Tebo.

 

Moreover, a jury could reasonably conclude that Parrott orchestrated an investigation to find other reasons to support his decision to fire Tebo, a decision he made after Tebo had faxed her informal EEOC Complaint of sex discrimination to the EEOC.

 

The timing of the decision to discharge her being made within three days of knowing she had filed with the EEOC is evidence of discriminatory intent.  The latter developed reasons for discharge are all imbued with the discriminatory intent.

 

The sexually discriminatory statements made by Parrott were far from stray remarks as they were made by the decision-maker in a variety of relevant contexts.

 

Moreover, these statements suggesting sex and gender bias create a triable issue as to whether an illegal reason was  a motivating factor in Parrott’s decision to terminate Tebo’s employment with the City.

 

WHAT TEBO HAS DONE TO THE TOWN OF WHITE SPRINGS AS A MANAGER IS FAR WORSE THAN ANYTHING DAN PARROTT HAS DONE TO HER.  SHE HAS FIRED GOOD HARD WORKING PEOPLE SUCH AS ANITA RIVERS, OFFICER JOHN DAVIS AND FORMER FIRE CHIEF PITTMAN FOR NO SPECIFIC REASONS EXCEPT FOR ILLEGAL REASONING BEING A MOTIVATING FACTOR IN HIRING RHETT BULLARDS FRIENDS, CRONIES AND COUSINS.

 

 

REASONS FOR TERMINATING TEBO ARE PRETEXTUAL

The law does not require an employer’s conclusion regarding workplace misconduct to be free from error; instead, it only requires an employer’s conclusions to be honestly made and free from evidence of unlawful discriminatory animus.

 

Tebo has evidence from which a reasonable jury could conclude that the reasons stated by the City are neither honest nor free of discriminatory or retaliatory animus.

 

Where an employer relies on an underling’s report that the plaintiff committed the work rule violation in question and fires him on that basis, the plaintiff is unable to demonstrate pretext merely by showing that the report is false.  Instead, the plaintiff must establish pretext by showing (or, at least, pointing to evidence that suggests) that the employer either did not rely on that report or that the employer did rely on the report, but knew it was false.  In either case, the plaintiff would have shown that the employer was likely lying about the reasons for its behavior and that, by definition, is pretext.

 

An employer may not benefit from the distinction drawn between an employer’s belief that an employee committed a work rule violation and the factual accuracy of that belief when the actual predicate of such a belief is the personal knowledge of the decision-maker.  In such cases, the inquiry into the factual accuracy of events merges with the ultimate question of truthfulness because “a lie as to one suggests a lie as to the other”.

 

*Where plaintiff was discharged because of the decision-makers claim that the plaintiff used vulgarities in front of customers, a “genuine issue of material fact” was created by the plaintiff having denied that he used vulgarities.)

 

Each of the reasons given by the City for Tebo’s discharge relies on the word of some person and Tebo has factually rebutted each of these reasons. “Someone is lying and on summary judgment the court must accept that; however, improbable it may seem, it is the moving party (City).  Because knowledge of the underlying events is the actual predicate of the employer’s decision, the falsity of the employer’s assertion that those events occurred goes directly to the issue of pretext.

 

The conflicting evidence is, for the most part, material and relevant to the question of pretext and an issue of material fact is ready to be put to the jury.

 

Unlike a number of cases, where the plaintiff is unable to show the decision maker had a motive to discriminate, in the instant case it Is Parrott himself who made the decision to terminate Tebo immediately following his learning that he was being accused of discrimination on account of sex and gender in the assistant city manager’s EEOC charge and in Tebo’s informal EEOC Complaining.

 

A jury would reasonably disregard all of his claims of “honest belief” in the reasons stated for her discharge since every decision was infected by his discriminatory motive.

 

A jury could further conclude that Parrott’s investigation of Tebo and the termination procedure was a transparent, sham device to cover a proscribed reason – discrimination based on her gender and sex.

 

Tebo has provided evidence that, if credited, may show that Parrott, the ultimate decision-maker, harbored a discriminatory animus toward women.  Such circumstantial evidence is highly suggestive of a discriminatory motive.  (holding that “language ot amounting to direct evidence, but showing some racial animus, may be significant evidence of pretext once a plaintiff has set out a prima facie case”)

 

In the first instance, long before Tebo was listed as a witness in the assistant city manager’s charge of sex discrimination, Parrott wanted to fire Tebo for having complained about his sexist comments to several city council members.  But he did not.

 

In May of 2014, he tried to get Blissett to fire Tebo for him but she would not.  Why didn’t he do it himself then?  A jury would reasonably conclude that because he wanted to fire her for reporting his discriminatory language and actions that he knew it would be wrong for him to do so, because with no other reason, it would have been retaliatory.

 

Only once Parrott was aware that the assistant city manager filed her EEOC charge of discrimination and Tebo faxed her letter to the EEOC, did Parrott began a search for reasons to excuse his discharge of Tebo.  Apparently filing sex discrimination claims against him with the EEOC was the ultimate insubordination and disloyalty for which he decided Tebo must no longer be employed with the City.

 

The District Court improperly considered what the City (through Parrott) “believed” in the reasons given for her discharge.  Focusing on an employer’s “good faith belief” would have been proper in other circumstances such as in EEOC v. Total Systems Service.

 

The jury can reject the good faith belief defense that has no legitimate factual basis.  Here Tebo has shown there is plenty of reason to believe Parrott lacked a good faith belief in the reasons given for her discharge; he wanted to fire her for having reported to council his sexually discriminatory words and actions and he needed to find a reason to support his decision to fire her.

 

When an employer such as the City offers multiple seemingly nondiscriminatory reasons for discharge, normally a plaintiff (Tebo) must create a genuine issue of material fact regarding each of the reasons given.  However, this requirement applies only where the employer’s articulated reasons qualify as independent bases for termination.

 

However, there are times when the multiple reasons given are so intertwined that the taint caused by the issue of fact, as to one such reason, also undermines the other reasons as well.  The taint in the instant case is caused by the sexually discriminatory animus of Parrott.

 

Cases that involve different versions of the same facts are only infrequently properly resolved on summary judgment because the credibility of the witnesses and the weight of the evidence, quintessential jury questions, are so central to any ultimate determination.

 

The circumstantial evidence presented by Tebo, construed in the  light most favorable to her, supports an inference that “insubordination and disloyalty” was used as a pretext for sex discrimination and for retaliation.  Summary judgment on the sex discrimination claim should be reversed.

 

THE DISTRICT COURT ERRED IN DISMISSING TEBO’S RETALIATION CLAIMS

 

Title VII prohibits an employer from “discriminating against any of its employees….because he has opposed any practice made an unlawful practice by.

 

To establish a prima facie case of retaliation, Tebo must show (1) she engaged in a statutorily protected activity; (2) she suffered an adverse employment action; and (3) the adverse employment action was causally related to the protected activity.

 

The District Court found that Tebo had established a prima facie case of retaliation.  Tebo’s protected activity was her Informal EEOC Complaint.  Title VII’s anti-retaliation provisions apply with equal force to those who informally voice complaints to their superiors or who use internal grievance procedures.

 

 (an employer is on notice even when even informal complaints about discrimination are made)

 

The ultimate adverse employment action was the termination of Tebo’s employment.  Tebo showed causation by the short time between the protected activity and her termination. 

 

 As the District Court found “It is undisputed that Parrot terminated Tebo thirty-two days after receiving her Informal complaint.”  The close proximity satisfies the causation element of the prima facie case.

 

(finding a delay of seven weeks between the date on which the plaintiff filed his EEOC charge and the date on which he was terminated “sufficiently proximate to create a causal nexus for purpose of establishing a prima facie case”) Farley v Nationwide Mutual Insurance Co.

Although the District Court held that Tebo was unable to rebut the City’s various non-retaliatory reasons, Tebo contends otherwise.

 

First, the reasons cited by the City all came about as a result of the investigation that Parrott brought because Tebo filed her Informal EEOC Complaint.  Had Tebo not filed her Informal EEOC  complaint, she likely would not have been discharged, since at least several of the reasons cited pre-existed the letter of termination by one to two years.

 

 

Second, Tebo has shown evidence of Parrot’s discriminatory animus towards women as well as his retaliatory animus.

 He tried to get Blissett to fire Tebo after Tebo complained to the city council members about his sexually discriminatory language and actions. 

He “laid off” Blissett three days after she filed her EEOC Charge.  He took away some of Tebo’s essential functions within three days of her filing her informal complaint.

The City reassigned all of Tebo’s functions and te title too, to Parrott, within three weeks of her filing her informal complaint.

 

 

Third, Parrott was the decision-maker regarding Tebo’s termination of employment.  His discriminatory and retaliatory animus tainted the reasons cited by the City – he wanted to get rid of Tebo (as he had already told her because she reported how he spoke about women and how he declined to hire a woman to replace Seelbinder) and he had motivation to ignore any inconsistencies in any story being told to him about Tebo – whether from the Mayor, the IT guy, or other employees.

 

Indeed, it is clear from the evidence that Parrott was searching for some reason, any reason, to terminate Tebo after she filed her Informal EEOC Complaint, just as he was trying to put together information after the fact to support his selsection of Blissett for layoff, right after she filed her EEOC Charge of Discrimination.  Such evidence is sufficient to establish pretext as it shows both the lack of good faith in the stated reasons as well as evidence of retaliatory motive.

 

The District Court’s Summary Judgment Order on the retaliation claims should be reversed.

 

SUMMARY JUDGMENT ON TEBO’S SECTION 1983 CLAIMS SHOULD BE REVERSED

 

Tebo’s Section 1983 claims wre filed as a parallel remedy to her Title VII claims.  Since the District Judge issued summary judgment on Tebo’s Title VII claims, he did the same with the Section 1983 claims without reaching the qualified immunity argument raised by Parrott.

 

Tebo contends that summary Judgment on the Title VII claims should be reversed, as argued and should her Section 1983 claims, since the elements of the causes are actions are the same.

 

Since review of the Order of Summary Judgment is de novo, Tebo addresses Parrott’s qualified immunity argument.

 

Defendant Parrott argues he is entitled to qualified immunity under Section 1983, purportedly because the “record establishes mixed motivations, that is motivations both lawful and lawful.

 

Parrott contends his “lawful” reason for termination was that Tebo was undermining him by complaining about his sexist remarks to the city council members in a purported effort to force him out.

 

Parrott’s reasoning is mystifying and antithetical to the laws applicable to this case; his “lawful reason” is the very essence of opposition to discriminatory practices and an inappropriate extension of the cases he cites.

 

Tebo has produced evidence above rebutting the so-called “lawful” reasons for her discharge.  This evidence is sufficient to allow a jury to determine whether gender or retaliation was a substantial or motivating factor in Parrott’s decision to terminate Tebo’s employment.

 

Whether Parrott can meet his burden of proving that he would have fired Tebo in the absence of both discrimination and retaliation is a credibility determination for the jury.  No qualified immunity should exist for Parrot and the motion for summary judgment on that issue should be denied.

 

CONCLUSION

 

The District Court construed facts in favor of the Defendants in violation of Fed. R. Civ P. 56.  The Court erred in ruling that Tebo failed to provide sufficient evidence of pretext because the Court failed to take into account that the decision maker Parrott’s purported honest belief is tainted by the evidence of his discriminatory and retaliatory animus.

 

Accordingly the District Court’s decision should be reversed and this case should be remanded for jury trial on all issues brought by Tebo under Title VII, the FCRA, and 42 USC  1983

 

Respectfully submitted

Martha Ann Chapman, Florida Bar No. 4464

 

 

 

 

 

 

 

 

 

 

 

 

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