Whitehurst v. Liquid Envtl. Solutions, Inc.

Citation45 F.Supp.3d 1328
Decision Date10 September 2014
Docket NumberCase No. 3:12–cv–601–J–34JRK.
CourtU.S. District Court — Middle District of Florida

45 F.Supp.3d 1328

Darryl M. WHITEHURST, Plaintiff,

Case No. 3:12–cv–601–J–34JRK.

United States District Court, M.D. Florida, Jacksonville Division.

Signed Sept. 10, 2014

Motion granted.

[45 F.Supp.3d 1332]

Darryl M. Whitehurst, Jacksonville, FL, pro se.

James E. Kellett, Jonathan A. Moskowitz, Crowell & Moring, LLP, New York, NY, Vanessa Shea Hodgerson, Jackson Lewis, PC, Michael J. Lufkin, Robert Gambrell Riegel, Jr., Jacksonville, FL, for Defendant.



THIS CAUSE is before the Court on Defendant Liquid Environmental Solution's Corporation's Motion to Dismiss under Federal Rule of Civil Procedure 12(c) or, Alternatively, for Summary Judgment under Rule 56(a) (Doc. 42; Motion), which was filed on August 22, 2013. On April 3, 2014, Plaintiff filed Plaintiff [sic] Motion to

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Show Cause Why This Case Should Not Be Dismissed and Defendants [sic] Summary Judgment Should Be Denied 1 (Doc. 80; Response).2 Accordingly, the Motion is ripe is review.

I. Procedural History

Plaintiff Darryl M. Whitehurst (“Whitehurst”), proceeding pro se, filed this action against his former employer Defendant Liquid Environmental Solutions, Inc., a/k/a Industrial Water Services, Inc., (“LES”) on May 21, 2012. See Complaint (Doc. 1; Complaint).3 Although Whitehurst does not organize the Complaint into separate counts, it appears that he asserts claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et. seq. See id. at 1, 2.

On June 20, 2012, LES filed Defendant Liquid Environmental Solutions Corporation's Answer, Affirmative and Other Defenses to Plaintiff's Complaint (Doc. 4; Answer). LES filed the instant Motion and supporting exhibits on August 22, 2013. See Motion; Declaration of Yuri Turovsky in Support of Defendant Liquid Environmental Solutions Corporation's Motion to Dismiss Under Federal Rule of Civil Procedure 12(c) or, Alternatively, for Summary Judgment under Rule 56(a) (Doc. 42–1; Turovsky Decl.); Deposition of Darryl M. Whitehurst (Doc. 42–2; Whitehurst Dep.); Declaration of James E. Kellett in Support of Defendant Liquid Environmental Solutions Corporation's Motion to Dismiss Under Federal Rule of Civil Procedure 12(c) or, Alternatively, for Summary Judgment under Rule 56(a) (Doc. 42–3; Kellett Decl.). On September 5, 2013, Whitehurst filed Plaintiff [sic] Objection to Defendants [sic] Motion to Dismiss, or Alternatively, for Summary Judgment (Doc. No. 44; Objection). Thereafter, upon review of the docket, the Court noted that Whitehurst had not been given notice of the filing of a summary judgment motion and the requirements for opposing summary judgment. As such, on December 5, 2013, the Court entered an Order striking the Objection and permitting Whitehurst to file a renewed response to the Motion for summary judgment by January 3, 2014. See December 5, 2013 Order (Doc. 51). Whitehurst failed to respond by the January 3, 2014 deadline, so on January 21, 2014, the Court entered an Order to Show Cause (Doc. 65; Order to Show Cause) directing Whitehurst to respond to the Motion for summary judgment and the Order to Show Cause by February 6, 2014. See Order to Show Cause. Thereafter, Whitehurst filed Plaintiff [sic] Request for Extension of Time (Doc. 68), which the Court struck for failure to comply with Local Rule 3.01(g), see February 12, 2014 Order (Doc. 69). The Court denied Whitehurst's second request for an extension of time to respond to the Order to Show Cause, see Plaintiff [sic] 2nd Request for Extension of Time (Doc. 70), but granted Whitehurst up to and including March 3, 2014, to respond to the Order to Show Cause and to file a response to the Motion for summary judgment, see February 20, 2014 Order (Doc. 71).

On March 3, 2014, Whitehurst filed Plaintiff [sic] Response to Defendants [sic]

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Motion for Summary Judgment (Doc. 73). However, upon review of Whitehurst's renewed response and the docket, the Court determined that the Clerk of Court again failed to enter a Summary Judgment Notice, and thus, Whitehurst never received the Notice. As such, the Court entered an Order directing the Clerk of Court to enter a Summary Judgment Notice and ordering Whitehurst to file a renewed memorandum in response to LES's Motion for summary judgment, as well as a response to the Order to Show Cause, by April 3, 2014. See March 4, 2014 Order (Doc. 75). The Clerk of Court entered the Summary Judgment Notice on March 5, 2014 (Doc. 76), and Whitehurst filed the Response on April 3, 2014. Despite the Court's direction in the Summary Judgment Notice, Whitehurst again presented no evidence with his Response. Instead, the Response is limited to unsworn argument.

II. Background 4

LES specializes in the collection, treatment, and disposal of non-hazardous liquid and organic waste streams. Turovsky Decl. ¶ 4. Employees of LES perform these services with modern vacuums, tankers and support vehicles. Id. LES employed Whitehurst as a driver of one of the vacuum trucks at its Jacksonville, Florida facility from January 1, 2010, until his discharge on March 9, 2010. Id. ¶ 5. Whitehurst testified that he believed he was “good at [his] job[,]” that he was never late, and that he went to work every day. Whitehurst Dep. at 57.

Whitehurst's claims arise out of a series of confrontations and disputes between himself and two other LES employees, David Coates (“Coates”) and Donald LaBell (“LaBell”). See id. at 52–53, 61–63, 68–69, 90–97, 103–04, 107, 110–14; see (Doc. 42–3, Exhibit A; Kellett Decl., Ex. A); (Doc. 42–3, Exhibit B; Kellett Decl., Ex. B); (Doc. 42–3, Ex. C; Kellett Decl., Ex. C). LES employed Coates and LaBell from January 1, 2010, until their termination on March 9, 2010.5 Turovsky Decl. ¶¶ 8, 11. At the time LES terminated Coates's employment, Coates held the position of Field Services Manager, and was responsible for coordinating the cleaning of industrial storage tanks owned and operated by LES's customers. Id. ¶ 9. Additionally, Coates assigned work to and scheduled LES Service Technicians. Id. At the time LES terminated LaBell's employment, LaBell held the position of Account Executive, in which he was responsible for marketing LES's services to potential customers and negotiating contracts with new customers. Id. ¶ 12. No employees reported to Coates or LaBell, neither Coates nor LaBell had direct supervisory authority over any employees, and neither Coates nor LaBell had the authority to hire, discharge, or discipline any employees. Id. ¶ 10, 13.

In the Complaint, Whitehurst references “(2) White–Gay males,” whom he identified in his deposition as Coates and LaBell. See Whitehurst Dep. at 52. Whitehurst alleges that Coates and LaBell “created an extremely hostile work environment with verbal threats[.]” Complaint at 4. His hostile

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work environment claim is based on his belief that Coates and LaBell are homosexual because he saw them “exemplifying feminine characteristics” including “[t]alking nose to nose” with each other while Coates sat on a desk with LaBell between his legs.6 Whitehurst Dep. at 52. Additionally Whitehurst testified that LaBell said “we're going to kiss later” and that Coates and LaBell were walking around LES's Green Cove Springs, Florida facility “twisting all in each other's face.” Id. at 52–53. However, Whitehurst also testified that other than his complaints, he never saw Coates and LaBell “act in a sexual manner towards any men on the job site[.]” Id. at 53–54. Further, LES's Jacksonville Plant Manager, Yuri Turovsky (“Turovsky”) testified that “[d]uring the time that I worked with Mr. Coates and Mr. LaBell, I saw no evidence, and heard no comments from others, that either man was gay.” Turovsky Decl. ¶ 14.

A. January 2010 Incident

At some point in January 2010, Whitehurst and Coates were involved in an incident in which Coates yelled at Whitehurst and “threaten[ed] to hit [Whitehurst] in the face with his fists.” 7 Whitehurst Dep. at 61. About fifteen minutes later, Coates said to Whitehurst, “Your mama didn't teach you about sucking.” 8 Id. at 90–91. Whitehurst reported Coates's “harassing behavior” to Turovsky. Id. at 61–62, 102; Kellett Decl., Ex. A at 1. Following Whitehurst's complaint, Turovsky met with Coates, and thereafter told Whitehurst that he, Whitehurst, and Coates would meet to discuss what happened. Whitehurst Dep. at 102. However, before the scheduled meeting, Coates apologized to Whitehurst, and Whitehurst gave Coates a “handshake and a man-hug,” which Whitehurst described as a “pat on the shoulder.” Id. at 62, 102. Coates reciprocated the gesture. Id. at 62. Whitehurst then told Turovsky to cancel the meeting, informing Turovsky that the incident was “water under the bridge.” Id. at 62–63; 102.

When he came to work the next day, a co-worker informed Whitehurst that after he left the previous day, LES management was “yelling and talking, hollering at [Coates], calling him a liar[.]” Id. at 102–103. Soon thereafter, LES sent Coates to work on an assignment in New Orleans for two weeks. Id. at 103–104. Upon his return, Coates told Whitehurst that Whitehurst “was the cause of him being

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shipped” to do the job in New Orleans and that in New Orleans, “he had to stay in a rat hole, flee-infested motel.” Id. at 104. Additionally, Coates told Whitehurst that “[i]t was all [his] fault and [he] was going to pay for it.” Id.

B. February 2010 Incidents

Whitehurst next reported that on or about February 13, 2010, Coates referred to him as “boy” and “sunshine.” Kellett Decl., Ex. A at 1, Ex. B at 2. Thereafter, on either February 15 or 16, 2010, Coates and LaBell approached Whitehurst, and LaBell “front hugged” Whitehurst and said ‘Happy Valentines Day.’ ” Id., Ex. B. at 2; Whitehurst Dep. at 91. Whitehurst reacted by breaking loose and pushing LaBell back, telling him “to back-up...

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