Short v. Immokalee Water & Sewer Dist.

• Decision Date: 25 February 2016
• Docket Number: Case No: 2:15-cv-136-FtM-29MRM
• Citation: 165 F.Supp.3d 1129
• Parties: John Short, Plaintiff, v. Immokalee Water & Sewer District, as a govern entity and Eva J. Deyo, in her individual capacity as executive director of Immokalee Water & Sewer District, Defendants.
• Court: U.S. District Court — Middle District of Florida

165 F.Supp.3d 1129

John Short, Plaintiff,

v.Immokalee Water & Sewer District, as a govern entity and Eva J. Deyo, in her individual capacity as executive director of Immokalee Water & Sewer District, Defendants.

Case No: 2:15-cv-136-FtM-29MRM

United States District Court, M.D. Florida, Fort Myers Division.

Signed February 25, 2016

Peter Frederick Helwig, Harris & Helwig, PA, Sannestine Fortin, Lakeland, FL, for Plaintiff.

Lyman H. Reynolds, Jr., Roberts, Reynolds, Bedard & Tuzzio, PA, West Palm Beach, FL, Laselve E. Harrison, Margaret Hood Mevers, Lydecker Diaz, Miami, FL, for Defendants.

OPINION AND ORDER

JOHN E. STEELE

, SENIOR UNITED STATES DISTRICT JUDGE

This matter comes before the Court on review of defendant Immokalee Water & Sewer District's Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. # 51) filed on October 14, 2015. Plaintiff filed a Response in Opposition (Doc. # 58) on November 12, 2015, to which Immokalee Water and Sewer District filed a Reply (Doc. # 66) on December 4, 2015. Also before the Court is defendant Eva Deyo's Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. # 52) filed on October 19, 2015. Plaintiff filed a Response in Opposition (Doc. # 57) on November 12, 2015, to which Eva Deyo filed a Reply (Doc. # 62) on November 19, 2015.

I.

Plaintiff's Second Amended Complaint¹ (Doc. # 48) contains the following allegations: Plaintiff, John Short (“Short” or “plaintiff”), is an African American who has been employed by defendant, Immokalee Water & Sewer District (“IWSD”) since July 1, 1989. (Id. ¶¶ 1, 5, 8.) Short is the first and only African American supervisor at IWSD in its 39 years of operation. (Id. ¶ 11.) Plaintiff was initially hired as a Wastewater Plant Service Technician. (Id. ¶ 8.) After obtaining his Florida Department of Environmental Protection (“DEP”) license as a Wastewater Plant Operator, he assumed the position of Licensed Wastewater Plant Operator in 1995. (Id. ¶ 9.) Then, after becoming licensed by the DEP to manage Wastewater Plant operations, plaintiff assumed the position of Wastewater Plant Supervisor with IWSD in 2000. (Id. ¶ 10.) Plaintiff alleges that since assuming his position as Wastewater Plant Supervisor, and since the arrival of Executive Director Eva J. Deyo (“Deyo”) in 2000 as his immediate supervisor, he has been subjected to racial discrimination and harassment by IWSD through the actions of Deyo. (Id. ¶¶ 7, 12.)

Plaintiff alleges that since 2002 he has been subjected to discriminatory discipline, performance evaluation, compensation, and reduction of job responsibilities. In 2002, Deyo issued plaintiff a disciplinary action form stating Short incompetently performed his duties, which was subsequently found to be baseless by the Board of Directors pursuant to the grievance process. (Id. ¶ 13.) In 2004 and 2005, Deyo again issued disciplinary actions which were later rejected upon review. (Id. ¶¶ 14-15.) After plaintiff's successes in the grievance process, at the end of 2005, the grievance procedures were altered to render Deyo's decisions regarding discipline and work performance to be final and unreviewable. (Id. ¶ 16.) Plaintiff alleges that this modification to the grievance process was in retaliation for his successful complaints about Deyo's discriminatory conduct.

Following the change in grievance procedure, Deyo continued to give plaintiff negative and inaccurate performance evaluations, although they were now unreviewable. (Id. ¶ 17.) In contrast, during this period plaintiff's performance was reviewed by the DEP and he received a 96%. (Id. ¶ 18.)

Plaintiff also alleges that Deyo applied the pay policy in a racially discriminatory manner. In 2005, IWSD's Board adopted a merit based pay policy, which was to be implemented by Deyo. (Id. ¶ 19.) The policy provided for employee pay increases for: (1) job related professional certifications, (2) cost of living allowance, and/or (3) job performance. (Id. ) Deyo had the sole authority to grant or deny pay increases based upon professional certifications and job performance. (Id. ) Cost of living allowance increases were automatic. (Id. ) In 2005, without any basis, Deyo prevented plaintiff from receiving pay increases by placing him on probation. (Id. ¶ 20.) To plaintiff's knowledge, no other IWSD employee was placed on probation in 2005. (Id. ¶ 21.)

Deyo also hindered Short's job performance pay increases by giving him negative and inaccurate performance reviews. (Id. ¶ 22.) Short has the following certifications: Water Facilities Security & Response Systems, Odor Control, Control Panel, Basic Driver Improvement, Chlorine Safety-Awareness Level, Management of Water/Wastewater Facilities I & II, Keyboarding, CPR, and AED. (Id. ¶ 23.) Deyo refused to award any pay increases for Short's job related certifications, yet awarded pay increases to non-black supervisors/employees with certifications. (Id. ) Deyo also refused Short's request for permission to seek additional certifications in Maintenance of Traffic (“MOT”) and Backflow Prevention, but approved non-black supervisors/employees' requests to receive the MOT certification, even though it was unrelated to their job positions. (Id. ¶¶ 24-25.) Plaintiff alleges that Deyo approved pay increases, including certification opportunities, for units headed by non-black managers, but not plaintiff's unit. (Id. ¶¶ 26-28.)

On or about May 1, 2010, Short discovered and reported to Deyo that an inadequate number of chlorine samples had been taken by a technician. (Id. ¶ 30.) In response, Deyo filed a disciplinary action report holding Short responsible for failing to complete the tests. (Id. ¶ 31.) In July 2010, Deyo issued two disciplinary reports which were later determined to be unfounded by the IWSD Civil Rights Committee. (Id. ¶ 32.) Despite the findings by the Civil Rights Committee, Deyo was suspended for three days and forced to attend counseling. (Id. ¶¶ 32-33.)

In 2012, IWSD installed software called Net Nanny on all supervisors' computers, a program to block and filter pornography. (Id. ¶ 34.) The software was interfering with the computers' performance and was eventually deactivated on all supervisors' computers, except for Short's. (Id. ¶¶ 34-36.) On or about January 28, 2013, Deyo filed a false disciplinary report against Short alleging that he was using his office computer to watch pornography. (Id. ¶ 37.) Short complained to the Chairman, but the Chairman took no action. (Id. ¶ 38.) Based upon the same allegations, Deyo issued additional disciplinary actions on April 1, 2013 and on October 16, 2013. (Id. ¶ 39.) Deyo again required Short to obtain counseling at the David Lawrence Center in order to retain his job. (Id. ¶ 41.)

Plaintiff also alleges that Deyo limited his duties to a single department, while still holding him responsible with the DEP for actions occurring outside his department due to his license. (Id. ¶ 43.) In April of 2013, Deyo informed Short that his license was inadequate for his position and limited his authority to only the Water Treatment Plant. (Id. ¶ 44.) Deyo had a non-black, inexperienced, unlicensed individual perform jobs in violation of DEP rules, which Short brought to the attention of DEP Agent David Rhodes. (Id. ¶¶ 45-47.) Upon being notified, Agent Rhodes ordered the project to cease immediately. (Id. ¶ 48.) Plaintiff also alleges that in September 2013, he began the hiring process to fill two Service Tech I positions. (Id. ¶ 50.) Short recommended black applicants for each position, as they were the most qualified. (Id. ) Deyo rejected Short's recommendations and hired less qualified, non-black individuals. (Id. )

Short alleges that on June 19, 2013, he filed an EEOC Charge of Discrimination against IWSD alleging racial discrimination, harassment, and retaliation by IWSD and Deyo. (Id. ¶ 53.) The EEOC issued a notice of right to sue on December 2, 2014, which was received by Short on December 5, 2014. (Id. ¶ 54.)

Following receipt, plaintiff filed this action on March 3, 2015. (Doc. # 1.) The Complaint has subsequently been amended twice pursuant to Orders of the Court, resulting in the Second Amended Complaint being the current operative pleading. (Doc. # 48.)

Plaintiff's Second Amended Complaint asserts the following 19 claims: (1) Racially Hostile Work Environment in Violation of Title VII against IWSD; (2) Racially Hostile Work Environment in Violation of the Florida Civil Rights Act against IWSD; (3) Racially Hostile Work Environment in Violation of the Civil Right Act, 42 U.S.C. § 1981

against IWSD; (4) Racially Hostile Work Environment in Violation of the Civil Rights Act, 42 U.S.C. § 1981 against Deyo; (5) Racially Hostile Work Environment in Violation of the Equal Protection Clause of the Fourteenth Amendment against IWSD; (6) Racially Hostile Work Environment in Violation of the Equal Protection Clause of the Fourteenth Amendment against Deyo; (7) Discrimination in Compensation, Terms, Conditions, and Privileges of Employment in Violation of Title VII against IWSD; (8) Discrimination in Compensation, Terms, Conditions, and Privileges of Employment in Violation of the Florida Civil Rights Act against IWSD; (9) Discrimination in Compensation, Terms, Conditions, and Privileges of Employment in Violation of the Civil Rights Act, 42 U.S.C. § 1981

against IWSD; (10) Discrimination in Compensation, Terms, Conditions, and Privileges of Employment in Violation of the Civil Rights Act, 42 U.S.C. § 1981 against Deyo; (11) Discrimination in Compensation, Terms, Conditions, and Privileges of Employment in Violation of the Equal Protection Clause of the Fourteenth Amendment against IWSD; (12) Discrimination in Compensation, Terms, Conditions, and Privileges of Employment in Violation of the Equal Protection Clause of the Fourteenth Amendment against Deyo; (13) Retaliatory Hostile Work Environment in Violation of Title VII against IWSD; (14) Retaliatory Hostile Work Environment in Violation of the Florida...