DEBARY MAKES THE CASE OF SUMMARY JUDGMENT BY DENYING ALL OF TEBO’S CLAIMS

Definitions:

Plaintiff        –   Stacy Tebo

Defendants – City of DeBary and Leo Daniel Parrot

Prima facie    –  Latin for “at first look,” or “on its face,” referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial. A prima facie case presented to a Grand Jury by the prosecution will result in an indictment. Example: in a charge of bad check writing, evidence of a half dozen checks written on a non-existent bank account makes it a prima facie case. However, proof that the bank had misprinted the account number on the checks might disprove the prosecution’s apparent “open and shut” case

MOTION FOR

SUMMARY JUDGMENT

 

As was the case at our Injunction, the Defendants, City of DeBary, Florida and Leo Daniel Parrot filed a motion for summary judgment on the basis that the record establishes that there is no genuine issue as to any material fact and that the Defendants are entitled to judgment as a matter of law.

By her Amended Complaint Stacy Tebo alleges in Claims One and Two sex discrimination and retaliation on the part of the City of DeBary…  Claim Five alleged an equal protection violation on the part of Parrott, DeBary’s City Manager.  The Defendants have answered denying all of Stacy Taboo’s claims and this case is at issue and discovery is closed.

A Court’s task 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 purpose of the summary judgment rule is to dispose of unsupported claims or defenses which, as a matter of law, raise no genuine issue of material fact suitable for trial.

The party who moves for Summary Judgment bears the initial burden “to show the District Court, by reference to materials on file, that there is no genuine issue of material fact that would be decided at trial.  A court must view the evidence presented in the light most favorable to the non-moving party, Stacy Tebo.

Once the moving party meets the initial burden, the burden shifts to the non-moving party (Stacy Tebo), to demonstrate that there is indeed a material issue of fact that precludes summary judgment.  The non-moving party ((Stacy Tebo) may not rest upon mere allegations or denials in the pleadings, but must set forth specific facts, through affidavits or other forms of evidence provided by the Rules.  Essentially, the inquiry…..is…..whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that a party must prevail as a matter of law.

 

FACTS OF RECORD:

Parrott was hired by the City of DeBary as its City Manager on February 8, 2010. The Plaintiff, Stacy Tebo had been hired by the City DeBary as its City Clerk in April of 2005.  Tebo had been supervised and evaluated by the City’s Finance Director, James Sealbiner until 2010 when Parrott transferred her from the Finance Director to directly report to him as the City Manager.  Tebo’s annual salary when Parrott was hired was $54,657.98; when she was terminated it was $69,910.10.  Her salary increased 28%, during Parrott’s tenure.   Parrott’s salary increase during the same period was 27%.   Tebo’s evaluations by Parrott were favorable.

Tebo was terminated effective May 17, 2015.  She had been notified of her termination on April 17, 2015 and was on unpaid leave between these two dates.  Parrott set out the reasons for the Plaintiff’s termination in his letters of April 17, 2015 and April 24, 2015.  In general terms, Tebo was fired as a result of a number of incidents of insubordination and acts of disloyalty.

The record is replete with evidence of Tebo’s insubordination and disloyalty.  The most obvious evidence is the undisputed efforts of Tebo to get Parrott fired (Tebo did discuss that she—that the City may be better under a different Manager and she had this conversation in Blissett’s  presence on more than one occasion.) Parrott became aware from various sources, that Tebo was going behind his back to City Council members to voice complaints about his performance as City Manager (She was a longtime friend/childhood friend of at least two of them).  During the Plaintiff’s October 2014 evaluation meeting, Parrott instructed Tebo, his subordinate, to desist from complaining about him to City Council Members.

Tebo acknowledge that despite being a direct report to the City Manager and having been warned by the City Manager to desist in her efforts to undermine his position, she nonetheless continued to complaint to City Council members about his performance as City Manager.  She did this despite the fact, as she testified, that complaining to City Council members about is City Manager is a good way to get fired.(It seems as though her friend Ms. Blissett offered much of this information in deposition)

Not satisfied with merely complaining about her supervisor, Tebo also acknowledges encouraging other employees to complain about the City Manager.  In fact, Tebo believes her complaints about Parrott were successful and were a contributing factor in his leaving his position with the City.  Tebo did not deny that she and the Mayor discussed terminating Parrott’s employment.  She contended however that it was the Mayor who raised the subject.

Another identified basis for her termination relates to a public records request by Barry Maguire.  Tebo acknowledges difficulty in responding to Mr. Maguire’s public records e-mail requests.  Though Tebo denies not providing Parrott with a complete set of documents that had been requested by Mr. Maguire, a fair reading of her testimony reflects substantial confusion over the process and the contents of the e-mails provided to Mr. Maguire and the copies supplied to City Manager Parrott.  Regarding Parrott’s belief that Tebo provided him with an incomplete response to his request for e-mails produced to Mr. Maguire, there is no dispute that his opinion resulted from his comparison of the e-mails she produced and those provided to him by Eric Frankton, the City’s IT person.  Though Tebo claims that neither Parrott nor Mr. Frankton understood the City’s e-mail archiver system, she has no evidence Parrot did not reasonably believe that she had failed to provide him with a complete copy of the Maguire public records response.

With regard to the e-mail account for the Business that she created it in her own name, Tebo had a lengthy and confusing explanation as to why it was necessary and her contention that Parrott had several years earlier authorized her use of same.  Parrott denies any knowledge of the authorization for the separate e-mail account.

TEBO’S CLAIMS:

Tebo’s complaints that Parrott made comments that women were catty, emotional and had too much estrogen and were always bitching.  Yet she raised no complaints to Parrot and made no effort to contact the EEOC until March of 2015.

Despite her claim that Parrott fostered a hostile work environment, this work environment did not cause her to hesitate from making requests of Parrott for cash payment of accrued personal hours, or for a raise;  All requests that Parrott granted (Parrott granted Stacy Tebo’s request for a raise in the amount of $5,000 effective October 1, 2012).  Likewise this claimed discriminatory and hostile environment did not keep her from receiving favorable evaluations.

 

Tebo claims that Parrot was a sexist and did not want to hire or work with women; yet he hired Kassandra Blissit as his Assistant City Manager.  He also replaced the City’s retiring male finance director with a female.  He also made Tebo a direct report.

Tebo claims that his conduct with regard to the Kendra Kabbas incident was evidence of Parrott’s discrimination against women.  Ms. Kabbas resigned on January 29, 2014.  Her exit interview form reflected a “good work experience” but some inappropriate comments by supervisors.  Tebo raised the “inappropriate comments” statement to Parrott, who gave her “a very stern order” not to speak to the former employee about her complaints.  Despite having been instructed by Parrott not to contact her, Tebo allowed Ms. Kabbas to enter City offices after 5 PM and fill out a form clarifying complaints that had been made about her supervision, Mr. Fletcher, in her employee exit form.  She did this knowing that Parrott wanted her to leave the complaint of this former employee alone.  Tebo admitted that she does not know what, if anything, Parrott did after receiving former employee Kabbas’s amended exit interview form specifying her complaint regarding Mr. Fletcher.   Tebo testified that Parrott avoided conflict in personnel matters and felt that if he ignored these problems they would go away.  Apparently she felt it was her place to force Parrott to address the Fletcher/Kabbas issue.  Mr. Fletcher denied the accusations.

Tebo ascertained that Parrott would not investigate the claims made against Director, John Fletcher, is incorrect.  In fact, in March of 2014, Parrott interviewed the relevant witness regarding the Kendra Kabbas incident and found no proof of the misconduct claimed by Tebo.  The investigation led to Parrott losing trust in Tebo’s handing of H.R. and caused him to transfer the H.R. functions to the Assistant City Manager Blissett.

 

Parrot also investigated the complaint of Melanie Martinez about Mr. Fletcher, which was made over a year later.  Her complaint was not of sexual harassment but was about her belief that she was being unfairly assigned duties, excessively criticized and not made part of the team.  As a result Mr. Parrott ordered Mr. Fletcher to attend a team building workshop, which he did.

Tebo claims that Parrott “arbitrarily” gave Warren Graham an 8% raise, but not the longer tenured female Accounting Clerk, Deanna Hutchinson.  She ignores the fact that Graham held a higher-level position.

 

Tebo contends that the results of the pay study were discriminatory to women.  This contention is meritless.  The purpose of the pay study was to address turnover issues with the City’s hourly field workers.  The study was performed by an outside firm selected through the RFP process.  The study concluded that City Administration employees (comprising virtually all of the female City Employees) were being paid a competitive wage.  However, the City’s field employees (exclusively male) were underpaid compared to the market. The pay study recommended higher percentage pay increases for the field employees was to be expected and certainly was not discriminatory.

 

Tebo’s complaint that she was personally subject to sex discrimination by pay study centers on her behalf that she should have been assigned pay grade 22, NOT PAY GRADE 20. Tebo acknowledge that there were no pay grades prior to the pay study.  The pay grades assigned to City employees were done as part of the pay study, not by Parrott.  The grade assigned to a particular position reflected the job responsibilities of the position in light of similar positions in nearby Cities and Counties.  The fact that Tebo believes she should have been a grade 22 (The Department Director level) is unjustified.  At this point in time, Tebo was no longer performing the HR functions.  Further, as to Tebo in particular, the pay study reflected that her salary was $4,000.00 above the market rate.

 

Tebo alleges she was retaliated against as a result of her filing a charge of sex discrimination with the EEOC.  However, Tebo did not file a charge of discrimination to protect her civil rights.  Tebo filed her charge so as to increase Parrott’s “general displeasure of having to deal with issues that arise being a City Manager with personnel problems and honestly. “ I thought he would quit if he saw an EEOC complaint Stacy stated, “But I was super wrong and if he would have quit then that would have been the end of it.”

Tebo’s belief that she was subject to pay discrimination based upon her sex lacks objective reasonableness.  Tebo will not be able to site to the Court a single individual employed b the City of DeBary in an exempt position whose salary was increased by a greater percentage during Parrot’s tenure as City Manager, than hers.

 

ISSUES AND ANALYSIS:

Claim I:  Sex Discrimination against Defendant City of Debary

Title VII makes it unlawful for employers to discharge or otherwise discriminate against an employee because of her sex.  Absent direct evidence of discrimination, a plaintiff may prove her case through circumstantial evidence.  The plaintiff bears the burden of establishing a prima facie case of discrimination.  If the plaintiff establishes a prima facie case, she creates a rebuttable presumption the employer unlawfully discriminated against her.  The burden then shifts to the employer to state a legitimate nondiscriminatory reason for the challenged employment action.   If the employer satisfies this burden of production, the burden shifts back to the plaintiff to demonstrate the proffered reason is merely a protext for unlawful discrimination.  Although the burden of production shifts back and forth, the ultimate burden of persuasion remains with the plaintiff, Stacy Tebo.

 

To establish a prima facie case of sex discrimination, a plaintiff must show (she is a member of a protected class; (2) she was subject to adverse employment action; (3) her employer treated similarly situated employees who are not members of the plaintiff’s class more favorably; and (4) she was qualified for the job at issue.   Plaintiff, Tebo, has no evidence of a similarly situated male employee who was treated more favorably.  Tebo’s conduct was unique.  There were no male employees, 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.

 

To establish a prima facie case of a hostile work environment, a plaintiff must prove that (1) she belonged to a protected group, 2) she was subject to unwelcome harassment 3, the harassment was based on her protected characteristics   4) the harassment was sufficiently severe and pervasive to alter the terms and conditions of her employment and create an abusive working environment and 5) a basis exists for holding the employer liable.  Even accepting at face value all of the Plaintiff’s complaints, they fall short of establishing an evidentiary basis to find severe and pervasive harassment creating an abusive work environment.

Even if the Plaintiff, Tebo, was found to have made out a prima facie case (Which she has not) the City has articulated legitimate non-discriminatory reasons for Tebo’s termination Thus Tebo must show pretext.  To show pretext, she must demonstrate “such weaknesses, implausibility’s, inconsistencies, incoherencies or contradictions to the employer’s proffered legitimate reasons for its action that a reasonable fact finder could find them unworthy of credence.  “A plaintiff is not allowed to recast an employer’s proffered non-discriminatory reasons or substitute (her) business judgment for that of the employer.  Provided that the proffered reason is on that might motivate a reasonable employer, on employee must meet that reason head on and rebut it, and she cannot succeed by simply quarreling with the wisdom of that reason.

The inquiry into pretext centers on the employer’s beliefs, not the employee’s beliefs” and to be blunt about it, not on reality as it exists outside the decision-maker’s head”

 

To establish pretext the plaintiff, Tebo, must demonstrate that the proffered reason was not the true reason for the employment decision.  Tebo may succeed in this either directly by persuading the court that a discriminatory reason more likely motivate the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.  To avoid summary judgment, Tebo must introduce significantly probative evidence showing that the asserted reason is merely a pretext for discrimination.  A reason is not pretext for discrimination “unless it is shown both that the reason was false and that discrimination was the real reason.

 

There can be no serious claim that the Plaintiff’s insubordination/disloyalty and policy violations were not a real and reasonable basis for her termination.  Thus the Plaintiff cannot show pretext.

 

Claim II Retaliation (Title VII) against Defendant City of DeBary.

Under the opposition clause, an employer may not retaliate against an employee because the employee “has opposed any practice made an unlawful employment practice by this subchapter”…and under the participation clause, an employer may not retaliate against an employee because the employee “had made a charge, testified, assisted, or participated in any manner in an investigation proceeding or hearing under this subchapter.

A prima facie case of retaliation under Title VII requires Tebo to show that (1) she engaged in an activity protected under Title VII; (2) she buffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action.

As with sex discrimination claims, the burden of proof in Title VII retaliation cases is governed by the framework established in McDonnell Douglas”.  First the plaintiff must establish a prima facie case of retaliation by proving “that she engaged in statutorily protected activity, she suffered a materially adverse action and there was some causal relation between the two events.   After the plaintiff has established the elements of a claim, the employer has the opportunity to articulate a legitimate, non-retaliatory reason for the challenged employment action as an affirmative defense to liability.  Stacy Tebo bears the ultimate burden of proving retaliation by a preponderance of the evidence and that the reason provided by the employer is a pretext for prohibited retaliatory conduct.

Moreover, a plaintiff’s burden as to causation in a retaliation claim requires a showing that the adverse employment action would not have occurred in the absence of that is, but for the protected conduct. (Holding that without establishing but-for causation, plaintiff failed adequately to support her claim for Title VII retaliation)

  1. a) Opposition Clause

The eleventh Circuit has “recognized that plaintiff can establish a prima facie case of retaliation under the opposition clause of Title VII, if she shows that she had a good faith, reasonable belief that the employer was engaged in unlawful employment practices.  The plaintiff’s burden under this standard has both a subjective and an objective component.  “A plaintiff 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 believe was objectively reasonable in light of the facts and record presented.  It thus is not enough for a plaintiff to allege that her belief in this regard was honest and bona fide, the allegations and record must also indicate that the belief, though perhaps mistaken, was objectively reasonable.  The plaintiff does not have to prove the underlying discriminatory conduct that she opposed was actually unlawful in order to establish a prima facie case and overcome a motion for summary judgment.  However, the objective reasonableness of her belief that the conduct is unlawful must be shown.  The court is required to measure against existing substantive law the objective reasonableness of a plaintiff’s belief that her employer engaged in an unlawful employment practice.  The objective reasonableness of her belief is measured by reference to controlling substantive law.

 

The plaintiff’s opposition to the claimed discriminatory actions of the City, as discussed in the fact section are non-objectively reasonable.  However, even if one were to conclude incorrectly, the Defendants believe that Tebo’s complaints were objectively reasonable; her conduct thereafter justified the City’s adverse actions.

Title VII does not protect employees, even one engaged in protected opposition from deliberate efforts to undermine her supervisor.  Title VII only protects employees engaged in reasonable forms of opposition, candor and surreptitious methods.  To undermine managerial effectiveness, creation of intrigue and suspicion, unnecessarily insubordinate in name of opposition not protected.  It is well established that the protection afforded by statute is not absolute.  This court has repeatedly recognized that some otherwise protected conduct may be so disruptive or inappropriate as to full outside the statute’s protection.  We have held that to qualify for the protection of the statute, the manner in which an employee expresses her opposition to an allegedly discriminatory employment practice must be reasonable.  This determination of reasonableness is made on a case by case basis by balancing the purpose of the statute and the need to protect individuals asserting their rights thereunder against an employer’s legitimate demands for loyalty, cooperation and a generally productive work environment.  Some conduct even if in sincere opposition to unlawful employment practices under Title VII may be so disruptive or inappropriate as to fall outside the protection of Title VII cannot be held to immunize an employee from all consequences of her behavior.  There may arise instances where the employee’s conduct in protest of an unlawful employment practice so interferes with the performance of her job that it renders her ineffective in the position for which she was employed.  In such a case, her conduct or form of opposition is not covered by 704(a).

  1. Participation Clause

To meet the first prima facie element – that plaintiff engaged in protected activity  – Tebo must establish that she either “has opposed any practice made an unlawful employment practice by this subchapter (the opposition clause) or has made a charge, testified, assisted, or participated in any manner in an investigation proceeding or hearing under this subchapter. “ Participation clause only protects proceedings and activities which occur in conjunction with or after the filing of a formal charge with the EEOC; it does not include participating in an employer’s internal, in-house investigation, conducted apart from a formal charge with the EEOC.

Tebo’s March 15, 2015 letter to the EEOC is not a charge of discrimination.  It was not notarized.  The law is clear that to meet the requirements of Title VII, a charge must be verified.  A charge “shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires. This to be actionable, any retaliatory actions must have occurred after these formal complaints were filed.  The decision to terminate the Plaintiff was put in writing on April 17, 2015; the plaintiff’s charge of discrimination was executed on April 23, 2015.  Thus Tebo has failed to set forth a prima facie case of retaliation under the participation clause. 

 

Even if we were to incorrectly accept the Plaintiff’s unsigned letter as a charge of discrimination, her participation claim still fails.  Courts should discount temporal proximity where the employee anticipating discipline preemptively engages in protected conduct to forestall the discipline or set the stage for later retaliation claims.  Title VII and retaliation provisions do not allow employees “on the ice” to insulate themselves against termination by preemptively making a discrimination complaint. INSUBORDINATE EMPLOYEES MAY NOT insulate themselves from discipline by announcing an intention to claim discrimination just before the employer takes action., THE Plaintiff’s intervening misconduct “eroded any casual connection that was suggested by the temporal proximity of her protected conduct and her termination.

 

Even if Tebo had made out a prima facie case of retaliation, it would be her burden to come forward with evidence sufficient to permit a reasonable fact finder to conclude that the stated reasons were not the real reasons for her termination, but merely pretexts for retaliation.  Tebo cannot demonstrate pretext unless it is shown both that the reasons were false and that retaliation was the real reason.  Stating the plaintiff must meet each proffered reason “head on” and cannot succeed by simply disputing the wisdom of the employer’s proffered reasons.

Tebo has no basis to contest the reasonable belief of Parrott that she sought the City Council to terminate his employment and did not provide him with a complete copy of the Maguire e-mails or that she had searched City e-mail records for information unflattering to Parrott.

 

Count V:  Unequal Treatment (Section 1983) against Defendant Parrott

Qualified immunity offers complete protected for government officials sued in their individual capacities if their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known”  Qualified immunity from suit is intended to “allow government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation, protecting from suit all but the plainly  incompetent or one who is knowingly violating the federal law.

Courts utilize a two part framework to evaluate qualified immunity defenses. One inquired in a qualified immunity analysis is whether the plaintiff’s allegations, if true, establish a constitutional violation.  If the facts, construed in the light most favorable to the plaintiff, show that a constitutional right has been violated, another inquiry is whether the right violated was “clearly established”   Both elements of this test must be satisfied for an official to lose qualified immunity and this two-prong analysis may be done in whatever order is deemed appropriate for the case.

Title VII and 1983 claims have the same elements where the claims are based on the same set of facts and in such cases; the claims are subject to the same legal analysis.

That Tebo was soliciting the termination of her supervisor cannot seriously be disputed.  Likewise some base level of loyalty can be expected of subordinates.  Even if Parrott’s employment decisions regarding Tebo were motivated by her sex, or were in retaliation for claimed protected conduct (positions which Parrot maintains have no support in the record) there can be no dispute that Tebo’s efforts to undermine her supervisor were a motivating factor in Parrott’s decision to take adverse employment action against her.  Where a governmental actor asserts qualified immunity and the record establishes mixed motivations that is motivations both lawful and unlawful; unless preexisting law dictates a governmental actor is entitled to qualified immunity.

CONCLUSION:

Tebo’s claim that she was discriminated against with regard to the terms of her employment are without basis.  The Plaintiff’s hostile work environment claim also fails.  She alleges a hand-full of events and rather innocuous comments over a period of five years.  Her evidence hardly establishes the severe and pervasive abusive environment.

 

With respect to retaliation, her participation claim fails because her letter of March 15, 2015, is not a charge of discrimination.  Thus, the Plaintiff did not engage in a statutorily protected activity prior to the decision being made to terminate her employment.  Tebo’s opposition claim fails because her letter of March 15, 2015 and subsequent EEOC charge, were not made to oppose discrimination, but were done with the intent to force the City Manager to resign/retire.  Furthermore her assertions of opposition regarding the pay study and her other complaints of discrimination are insufficient or without an objective basis.  Finally, the plaintiff’s termination was unquestionably motivated by her efforts to undermine Parrott and force him out as City Manager.  Thus retaliation cannot be the “but for” cause of her termination.

 

The 42 U.S.C. 1983 claim against Parrott is barred by qualified immunity.  Even if one were to incorrectly conclude that Parrott was motivated to fire the Plaintiff in retaliation for her complaints, that he was also motivated to fire the plaintiff due to her efforts to force him out is indisputable.  Thus at minimum, he had mixed motivations regarding her termination and qualified immunity therefore applies.

 

Accordingly the Defendants are entitled to summary final judgment on all claims of Stacy Tebo and such relief is respectfully requested.

 

 

Now it is up to Stacy to Respond within 30 days but as you can see, and as I have stated all along, in my opinion and from the facts, she doesn’t have a chance in hell to win this suit.

 

Karin for the blog

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