In discrimination cases, after depositions and paper discovery comes the inevitable Motion for Summary Judgment, asking a court to toss the lawsuit based on stated undisputed facts.
So is Flagler College engages in "flyspecking nitpicking" as the late USDOL Chief Judge Nahum. Litt wpuls call it?
After years of exemplary service and high ratings, the person engaging in protected activity is subjected to a hailstorm of criticism. It is as if there were a "cleaver in time," after which the retaliatory employer sacks the employee it had praised for years.
Here's the February 17, 2021 Motion for Summary Judgment filed by FLAGLER COLLEG, INC.:
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
TINA JAECKLE, Plaintiff,
vs.
FLAGLER COLLEGE, INC.,
Defendant. ________________________________________
CASE NO.: 3:19-cv-01323-TJC-MCR DISPOSITIVE MOTION
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION
/
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Defendant, FLAGLER COLLEGE, INC., through its undersigned counsel, and pursuant to Fed. R. Civ. P. 56 and Local Rule 3.01, files this motion for summary judgment and supporting memorandum of law:
INTRODUCTION AND SUMMARY OF ARGUMENT
Plaintiff sues Flagler College alleging: (1) a breach of contract claim, and; (2) a Title IX retaliation claim pursuant to 20 U.S.C. §1681, et seq. At issue is Flagler’s termination of Plaintiff, which it based upon her admitted violation of the College’s Outside Employment Policy. Plaintiff does not dispute she violated the policy; the only question appears to be whether that violation warranted termination.
Plaintiff’s employment agreement with the College mandated her compliance with the College’s policies as set forth in the Faculty Handbook. The handbook contained a policy which prohibited outside employment without prior approval, which Plaintiff admittedly violated, and for which Flagler based its termination.
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This basis also serves as Flagler’s legitimate, non-retaliatory reason for her termination under a Title IX analysis. Plaintiff cannot rebut this reason to show that but for her alleged complaint she would not have been fired. Plaintiff’s Title IX claim fails for other reasons as well. Plaintiff did not engage in any conduct protected by Title IX, and she cannot establish any decision-maker knowledge of her alleged protected activity at the time the decision was made to terminate her.
STATEMENT OF UNDISPUTED MATERIAL FACTS
Breach of Contract Claim
Plaintiff began employment at Flagler College as an adjunct sociology instructor
in 2003. (Doc. 58-1 at 31:6-121). In 2006, Plaintiff became an assistant professor, and in 2012, Flagler promoted her to associate professor. (Doc. 58-1 at 31:6-12; 33:4-34:14, Doc. 58-2). In addition to her faculty responsibilities, Plaintiff served as Chair of the College’s Title IX Sexual Misconduct Hearing Panel working closely with theCollege’s Title IX coordinator. (Doc. 58-1 at 100:2-101:9; Doc. 37 at ¶13). She also served as the Chair of the College Disciplinary Committee, and the Director of the Criminology Program. (Doc. 37 at ¶¶13, 15).
Flagler reappointed Plaintiff to its faculty for the 2017-2018 academic year through an April 20, 2017 academic appointment letter, executed by both Plaintiff and the College. (Doc. 37-2). This document is the contract at issue. Id. Plaintiff’s acceptance of this and every academic appointment throughout her employment with
1 References to deposition transcripts will be cited using the CM-ECF Document number followed the page and line reference to the deposition transcript itself.
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Flagler required her compliance with the College’s policies and procedures contained in the Faculty Handbook:
Your acceptance of this appointment constitutes an agreement to comply with official College policies and procedures, as they currently exist, and as they may be changed through established procedures. Causes for termination of this appointment, prior to the end of the stated term, are specified in the Faculty Handbook.
(Doc. 37-2). See also (Doc. 58-1 at 32:22-25; 44:20-25; Doc. 58-3 at 17:11-16; Doc. 58- 4 at 44:19-23, Doc. 58-5 at ¶3; Doc. 58-5 at Ex. A).
Violation of the College’s policies or rules constituted grounds for termination of faculty appointments as provided in the Faculty Handbook:
Termination of faculty appointments during the term of appointment may be only for adequate cause, incompetence, misconduct, insubordination (failure to comply with the instructions of a superordinate (e.g., department chair, dean, president) in the performance of his or her official duties), violation of College policies or rules, and conduct unbecoming College faculty.
(Doc. 37-3 at p. 42) (emphasis added).
Plaintiff’s duties and responsibilities as a full time faculty member were also set
forth in the Faculty Handbook, and included:
Foremost among these [duties] are to teach assigned classes; to advise assigned students; to maintain office hours, have a significant presence on campus, and be accessible to students and staff; to attend faculty meetings, convocations, commencement ceremonies, and actively participate on assigned committees; and to perform other duties as may be recommended by the Department Chair, the Associate Dean of Academic Affairs, the Dean of Academic Affairs, and the President. A faculty member's failure to meet assigned classes, to advise students, to maintain daily office hours, hold examinations as scheduled, or participate actively on departmental or college-wide committees is regarded as unacceptable performance.
(Doc. 37-3 at p.12-13).
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The Faculty Handbook included Flagler’s policy on outside employment, which expressly prohibited full time faculty members from teaching at other educational institutions absent prior written approval of the College’s President:
***
The duties and responsibilities assigned to full-time faculty at Flagler College are sufficiently significant and demanding to preclude accepting other employment or assuming major responsibilities outside the College. It is assumed that substantial and sustained involvement in other forms of employment or in extensive activities outside the College will tend to diminish the effectiveness of a full-time faculty member in fulfilling his or her obligations to the College.
A. Outside Employment
1. The College has priority claim on the working time of full-time faculty members. When faculty members wish to undertake additional activities, College-sponsored or non-College sponsored, they must ensure that their assigned duties are fulfilled. Faculty members shall not allow outside employment to interfere with their obligations at the College.
2. Outside employment shall be performed only outside of assigned working hours or responsibilities or during a period of unpaid leave, and it shall not conflict, delay, or, in any manner, interfere with teaching, advising, participating in committee meetings, and performing other services which the faculty member is obligated to render to the College.
3. With the exception of occasional lectures or continuing education programs, regular employment in teaching at another educational institution while employed as a full-time faculty member at Flagler College is not permitted without prior written approval of the President.
*** B. Approval of Outside Employment
Full-time faculty must secure the approval of the Dean of Academic Affairs and the President prior to accepting other employment or assuming significant responsibilities outside their assigned duties. In the event that such approval is granted, it may be rescinded, if, in the judgment of the Dean of Academic Affairs or the President, there is cause to believe that a faculty member’s effectiveness has been reduced because of involvement in other
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employment or professional activities outside the College. Blanket approvals for outside employment will not be granted.
***
D. Disclosure of Outside Employment or Outside Professional Activity
By College policy, a faculty member is required to disclose any and all forms of outside employment and outside professional activity to his/her Department Chair and the Dean of Academic Affairs.
(Doc. 37-3 at p. 69-71) (emphasis added) (Doc. 58-4 at 67:17-68:25). The policy drew a distinction between employment at another educational institution and employment or service that enhanced a faculty member’s professional development. (Doc. 58-4 at 39:18-41:16; Doc. 58-5 at ¶4; Doc. 37-3 at p. 69-71).
The College’s President, Dr. Joseph Joyner, delegated authority to make decisions regarding approval of outside employment to the Vice President of Academic Affairs and Dean of the Faculty, Dr. Alan Woolfolk, and requested that Dr. Woolfolk keep him informed of faculty members who were working outside the College. (Doc. 58-3 at 36:10-37:6; 38:24-39:5).
As a full time faculty member at Flagler, Plaintiff had other outside employment and service for organizations, such as the FBI, which the College knew about and supported. (Doc. 58-4 at 21:25-22:21). What Flagler did not know about was Plaintiff’s employment as an adjunct faculty member at two other educational institutions: Nova Southeastern University (“Nova”) beginning in the 2012-2013 timeframe and Walden University (“Walden”) beginning in 2010. (Doc. 58-1 at 13:23-14:6; 16:3-5; 50:13-22; Doc. 58-6 at Ex. A; Doc. 58-8 at #3). Plaintiff never sought approval from Dr. Joyner
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or Dr. Woolfolk as required by the College’s policy on outside employment (Doc. 58- 1 at 50:20-21; 142:8-19; Doc. 58-7; Doc. 58-8 at #3).2
In October 2017, Dr. Emily Splane, Chair of the Department of Social Sciences and Plaintiff’s direct supervisor, met with Dr. Woolfolk to discuss concerns regarding Plaintiff’s work performance and attendance. (Doc. 58-9 at 30:2-21; Doc. 58-10). Dr. Woolfolk asked Dr. Splane to monitor the situation and keep notes documenting when Plaintiff was on and off campus, and when she cancelled classes. (Doc. 58-9 at 30:2- 21; 31:8-21; Doc. 58-10; Doc. 58-4 at 89:10-90:25).
In November 2017, Dr. Splane advised Dr. Woolfolk that she had not seen Plaintiff on campus much, and that she received complaints from two students that Plaintiff’s classes lacked rigor, and they were concerned Plaintiff had other priorities that took more of her time than her faculty position at Flagler. (Doc. 58-9 at 36:2-17; 39:3-13; Doc. 58-11). Dr. Splane and Dr. Woolfolk decided to meet with Plaintiff to discuss the student complaints.3 (Doc. 58-9 at 39:14-40:1; Doc. 58-11).
On December 18, 2017, Dr. Woolfolk emailed Plaintiff requesting to meet with her in January, and advised Plaintiff that she seemed “disengaged from the college
2 Relevant to the College’s after-acquired evidence affirmative defense, Flagler learned through discovery that Plaintiff engaged in more unapproved outside employment at other educational institutions while a full time faculty member at Flagler than was known when it terminated her. (Doc. 58-8). In addition to being employed at Walden and Nova, Plaintiff also admitted she was employed (without prior approval) by The Sullivan University in 2013, Iowa College Acquisition Corporation in 2013-2015, and Lees-McRae College, Inc. in 2015-2016. Id.
3 Dr. Splane provided Plaintiff with a 2018 performance evaluation which documented the receipt of student complaints regarding the lack of rigor of Plaintiff’s courses, and that their papers were not being read. (Doc. 58-9 at 61:24-62:9; Doc. 58-12). Dr. Splane also noted that Plaintiff’s lack of presence on campus was noticeable that year leaving room for improvement with working with students outside the classroom. (Doc. 58-12).
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during the past semester.” (Doc. 58-1 at 84:24-86:16; Doc. 58-5 at Ex. B; Doc. 58-5 at ¶5). Plaintiff responded that a formal meeting was unnecessary, and explained that her mother had been recently diagnosed with a terminal illness. (Doc. 58-13).
In early January 2018, Dr. Woolfolk brought the issues regarding the student complaints and Plaintiff not fulfilling her teaching duties to the attention of Jim Springfield, Flagler’s HR Director. (Doc. 58-14 at 16:14-18:6). Ultimately, however, the efforts to investigate the concerns raised about Plaintiff were delayed due to the illness, and later, death of Plaintiff’s mother, who passed on February 20, 2018. (Doc. 58-13; Doc. 58-14 at 55:10-13; Doc. 58-1 at 87:14 – 88:17).
On March 15, 2018, Mr. Springfield emailed Plaintiff requesting a meeting to discuss concerns regarding her work performance that had been reported to Dr. Woolfolk, including: (1) inconsistent office hours, (2) not attending to director duties, (3) teaching at other institutions without prior approval, (4) disparaging remarks in her class about another Flagler professor, and (5) lack of rigor in classwork. (Doc. 58-15; Doc. 58-14 at 37:4-24; 50:9-51:14).4 On April 2, 2018, Plaintiff emailed a lengthy response to Mr. Springfield in which she readily admitted to teaching online graduate level courses at other educational institutions for which she had not received prior approval. (Doc. 58-1 at 50:20-21; 142:8-19; Doc. 58-7; Doc. 58-8 at #3).
4 Mr. Springfield investigated Plaintiff’s performance issues, and met with students who had previously complained about Plaintiff, and confirmed their complaints that Plaintiff lacked vigor in the classroom, cancelled classes, showed videos instead of instructing, and overall seemed disinterested in teaching. (Doc. 58-16; Doc. 58-14 at 94:1-105:5).
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Mr. Springfield met with Dr. Joyner on or about April 2, 2018, and informed him of Plaintiff’s admitted violation. (Doc. 58-3 at 47:21-48:9; Doc. 58-14 at 137:8-19; Doc. 58-6 at ¶3). At that meeting, Dr. Joyner independently made the decision to terminate Plaintiff’s employment for her violation of the College’s policy on outside employment. (Doc.58-3 at 47:21-50:6; 56:6-10; 43:1-4; Doc. 58-17 at ¶3)
Before officially announcing the termination, Dr. Joyner asked Mr. Springfield to obtain written verification from the academic institutions disclosed by Plaintiff. (Doc. 58-3 at 49:3-50:6; 57:16-58:21; Doc. 58-14 at 80:11-81:4; 137:8-19; Doc. 58-6 at ¶3; Doc. 58-6 at Ex. A). Mr. Springfield obtained a signed release from Plaintiff, and on April 30, 2018, received written confirmation from Nova that Plaintiff had been employed there for nearly a decade as an adjunct faculty member. (Doc. 58-6 at ¶4; Doc. 58-6 at Ex. A; Doc. 58-1 at 144:7-21; Doc. 58-18; Doc. 58-6 at ¶4).
Additionally, before announcing Plaintiff’s termination, negotiations ensued between her legal counsel and that representing the College to reach an amicable separation. (Doc. 58-14 at 148:11-149:3; Doc. 58-17 at ¶5). With negotiations failing to progress, on June 7, 2018, President Joyner, Dr. Woolfolk and Mr. Springfield met, and, after reviewing the corroborating documentation Mr. Springfield had compiled, President Joyner instructed him to move forward with finalizing Plaintiff’s termination letter. (Doc. 58-3 at 50:15-19; Doc. 58-14 at 147:1-7; 148:11-149:3; 157:15-19; Doc. 58-19; Doc. 58-6 at ¶5; Doc. 58-17 at ¶5; Doc. 58-20). Oddly, Plaintiff publicly announced her termination on June 8, 2018 on a blast email, the day before she
received the official termination letter. (Doc. 58-6 at ¶6; Doc. 58-6 at Ex. B). 8
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At the time of Plaintiff’s termination, Dr. Joyner, Dr. Woolfolk, and Mr. Springfield were not aware of any other full time faculty member who worked at another educational institution without prior written approval. (Doc. 58-4 at 84:21-24; Doc. 58-17 at ¶6; Doc. 58-6 at ¶9; Doc. 58-5 at ¶8).5 To be sure, Plaintiff cannot identify that Flagler ever knew about any faculty member who, like her, worked at one or more other educational institutions as a faculty member, without prior approval, and was not terminated. (Doc. 58-1 at 51:12-52:8). In contrast, several other faculty members had sought and obtained prior approval to teach a course at another educational institution, including Gary Hoover, James Rowell, Angelina Semegon and Chris Moser. (Doc. 58-5 at ¶9; Doc. 58-5 at Ex. C, D, E and F; Doc. 58-4 at 78:10-24).
Title IX Retaliation Claim
Plaintiff had two conversations6 with Flagler’s Title IX Coordinator, Jessica Kobryn, both of which occurred prior to February 20, 2018. (Doc. 58-1 at 104:2-9). During the first conversation, Plaintiff shared suspicions relayed to her by another Flagler faculty member, Dr. Joe Saviak, who heard from two former Sheriff’s workers, that Joel Bolante, a Flagler faculty member and Title IX committee member, was involved in sexual relations with one or more “potential” students. (Doc. 58-1 112:17-
5 During this litigation, Flagler learned, for the first time, that Dr. Jennifer Melvin, another full-time faculty member, also had unapproved outside employment at another educational institution in June 2018. (Doc. 58-17 at ¶6; Doc. 58-6 at ¶9; Doc. 58-4 at 84:17-24; 125:11-22; Doc. 58-21 at 17:3-18:22) Flagler also learned that upon Plaintiff’s termination, Dr. Melvin immediately resigned her outside employment in June of 2018. (Doc. 58-21 at 17:3-19).
6 Although there is testimony of two conversations, the undisputed record evidence is that Plaintiff’s second encounter with Ms. Kobryn took place 5-7 days after the first, and was simply confirmation the matter was “being handled.” (Doc.58-1 at 118:24-119:14).
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113:9; 106:4-107:11; 110:10-14; Doc. 58-22 at ¶3). Plaintiff testified she reported to Ms. Kobryn that she “heard allegations, sexual misconduct allegations regarding Joel Bolante being involved in sexual misconduct allegations with students, that [she] was deeply concerned because he was also part of Title IX, the Title IX process, and hadbeen.” (Doc. 58-1 at 104:16-105:24).
Plaintiff did not personally witness any interaction involving Mr. Bolante and a student, did not have any personal knowledge of the allegations, and did not relay any details, including the identity of any victim(s)/student(s). (Doc. 58-1 at 117:20-24; Doc. 58-23 at 57:17-23; Doc. 58-22 at ¶3). Plaintiff never learned whether Dr. Saviak or his two alleged sources knew any details. (Doc. 58-1 at 106:4-19, 115:10-22).
The third-hand information Plaintiff shared with Ms. Kobryn, devoid of any details, especially a named victim or victims, was not sufficient information to trigger a Title IX investigation. (Doc. 58-23 at 47:5-49:22; Doc. 58-22 at ¶3; Doc. 58-22 at Ex. A). Section 5.01 of Flagler’s Sexual Misconduct Policy provided, in pertinent part, that a report of sexual misconduct triggered the need for a Title IX investigation, when an alleged victim or a third party submitted a written statement “providing sufficient information for the College to investigate the allegations contained therein (including but not limited to the name of the alleged victim, the name of the alleged perpetrator, the date, location and nature of the alleged Sexual Misconduct.)” (Doc. 58-22 at Ex. A). Still, Ms. Kobryn informed Plaintiff she would look into it and talk with Mr. Springfield. (Doc. 58-1 at 117:11-19; Doc. 58-22 at ¶4).
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Ms. Kobryn immediately called Mr. Springfield, and without disclosing Plaintiff’s identity, advised him that concerns had been anonymously raised to her about Mr. Bolante, and asked Mr. Springfield if he was aware of similar allegations. (Doc. 58-23 at 51:7-17; Doc. 58-24; Doc. 58-14 at 113:14-116:6; Doc. 58-23 at 51:7- 17; Doc. 58-25; Doc. 58-6 at ¶8; Doc. 58-22 at ¶4). Mr. Springfield advised Ms. Kobryn he was aware of allegations, and that his office was investigating the matter. (Doc. 58- 23 at 60:17-61:5; Doc. 58-22 at ¶4) For his part, Mr. Springfield surmised Dr. Saviak was the person who had reported the issues to Ms. Kobryn since Dr. Saviak had recently presented nearly identical information to him (Springfield). (Doc. 58-14 at 116:3-6; Doc. 58-6 at ¶8).
In November 2017, Dr. Saviak told Mr. Springfield he heard Mr. Bolante was a womanizer and mistreated women when he was employed at the Sheriff’s office, and Mr. Bolante has been involved with students. (Doc. 58-14 at 112:15-25; 121:7-11; 120:15-20; Doc. 58-25; Doc. 58-26; Doc. 58-1 at 108: 6 - 109:7; 110:21-111:3; 113:23-114:7). Upon learning of Dr. Saviak’s allegations, Dr. Joyner instructed Mr. Springfield to investigate further. (Doc. 58-14 at 121:15-122:12).
Mr. Springfield interviewed several former co-workers of Mr. Bolante’s from the Sheriff’s office, including Mr. Strickland and Ms. Meacham (the persons Plaintiff alleges were the likely source of information to Dr. Saviak), Sheriff Shoar, Mr. Bolante, and his former assistant, Ray Brutnell. (Doc. 58-14 at 122:13-125:12; Doc. 58-25). On February 26, 2018, Mr. Springfield concluded his investigation in a report
to Dr. Joyner, which contained the following findings: 11
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I do not have any report from a student or former student. A student’s name has never been given to me or neither has a student filed a complaint. An anonymous reporter spoke to Jessica Kobryn. She did not investige[] [sic] as there was not a substantiated witness and no person was identified. No person has file[d] an official complaint with Title IX[.] The person who reported was to provide a better witness. To date no one has been named to my knowledge. At this time, I consider the case closed with no finding of fault. I will not inform Mr. Bolante or Dr. Saviak until a few more weeks have pas[s]ed [sic] to see if another witness to come forward to Jessica Kobryn.
(Doc. 58-25) (emphasis added) (Doc. 58-14 at 122:13-123:23).
Dr. Joyner, Dr. Woolfolk and Mr. Springfield had no knowledge that Plaintiff
had lodged the allegations about Mr. Bolante with Ms. Kobryn at the time Dr. Joyner made the decision to terminate Plaintiff on or about April 2, 2018. (Doc. 58-3 at 47:21- 50:6; 56: 6-10; 56:20-57:2; 57:16-21; 60:24-61:9; Doc. 58-27 at 8:23-10:7; Doc. 58-14 at 112:18-114:7; Doc. 58-17 at ¶¶3, 4; Doc. 58-6 at ¶¶7,8; Doc. 58-5 at ¶7). In fact, like Mr. Springfield, Dr. Joyner believed Dr. Saviak had anonymously reported the concern to Ms. Kobryn about Mr. Bolante. (Doc. 58-3 at 24:1-16). Plaintiff does not know when the decision was made to terminate her. (Doc. 58-1 at 145:2-4).
There is no record evidence that Ms. Kobryn identified Plaintiff as a person who registered a Title IX report or shared her name to Dr. Joyner, Dr. Woolfolk or Mr. Springfield prior to May 1, 2018. (Doc. 58-1 at 165 – 170; Doc. 37 at ¶¶43, 44). It was not until May 21, 2018, roughly 49 days after Dr. Joyner decided to terminate Plaintiff that Mr. Springfield learned about Plaintiff relaying concerns about Mr. Bolante in early 2018. (Doc. 58-6 at ¶¶7, 8; Doc. 58-6 at Ex. C, D and E; Doc. 37 at ¶44). When Plaintiff made her previously-disclosed concerns regarding Mr. Bolante known to Mr.
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Springfield on May 21, the decision to terminate her had long been made. (Doc. 58-3 at 47:21-50:6; 56:6-10; 56:20-57:2; 57:16-21; Doc. 58-6 at Ex. E; Doc. 58-17 at ¶3).
In the same April 2, 2018 email in which Plaintiff admitted to violating Flagler’s policy on outside employment, she also aired her grievances to Mr. Springfield, hypothesizing on the origin of his investigation into her outside employment. (Doc. 58-7). In that lengthy email, Plaintiff alleged retaliation on a number of bases, including a prior complaint to Mr. Springfield about Dr. Splane and Dr. Woolfolk in December 20177, a historical lack of departmental support, being a whistle-blower of Dr. Splane allegedly violating a college policy, and even her Christian faith. (Doc. 58- 7; Doc. 58-1 at 136:14-137:1). Nowhere in Plaintiff’s three-page, single-spaced email did she claim or even mention lodging a Title IX report, complaint, or concern, or reporting anything related to Mr. Bolante. (Doc. 58-1 at 132:25-133:11; Doc. 58-7).
MEMORANDUM OF LAW
This Court is well versed in the legal standard applicable to motions for summary judgment. With the Court’s indulgence, Flagler will bypass the stock and familiar citations, and proceed directly to the merits of its argument.
A. Breach of Contract Claim
To prevail on a breach of contract claim under Florida law, Plaintiff must show: “(1) the existence of a contract, (2) a breach of the contract, and (3) damages resulting
7 Plaintiff met with Mr. Springfield in December of 2017, to confidentially obtain advice about ongoing leadership issues in the Social Sciences department, including that Dr. Splane was leaving her out of meetings and over scrutinizing her. (Doc. 58-13; Doc. 58-1 at 98:19-100:8; 129:2-15; Doc. 58-14 at 11:19-13:5).
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from the breach.” Chase v. Nova Southeastern Univ., Inc., Case No.: 11–61290–Civ– WILLIAMS, 2012 WL 13005597, *16 (S.D. Fla. Sept. 14, 2012) (quoting Rollins, Inc. v. Butland, 951 So. 2d 860, 876 (Fla. 2d DCA 2006). In the present case, there is no dispute that Flagler entered into a contract with Plaintiff vis-à-vis its April 20, 2017 reappointment of her. (Doc. 37 at ¶ 23 and 37-2; Doc. 57 at ¶ 23).
“Where no material facts are in dispute and the ‘determination of the issues of a lawsuit depends upon the construction of a written instrument and the legal effect to be drawn therefrom, the question at issue is essentially one of law only and determinable by entry of summary judgment.’” Holmes v. Florida A&M Univ. by and through Bd. of Trustees, 260 So. 3d 400, 404 (Fla. 1st DCA 2018) (quoting Cox v. CSX Intermodal, Inc., 732 So.2d 1092 (Fla. 1st DCA 1999)). Here, no factual issues are in dispute to prevent summary judgment to Flagler.
The law is well-settled that an employment contract with a specified term of duration is not terminable at will, but can only be terminated prior to its end date if provided for in the contract. Holmes, 260 So. 3d at 405. By its terms, the contract between Flagler and Plaintiff incorporated provisions of Flagler’s Faculty Handbook, specifically on the cause for termination prior to end of the contract’s term. (Doc. 37- 2) (“Causes for termination of this appointment, prior to the end of the stated term, are specified in the Faculty Handbook.”). Holmes, 260 So. 3d at 404, 406; BGT Group, Inc. v. Tradewinds Engine Servs., LLC, 62 So. 3d 1192, 1194 (Fla. 4th DCA 2011) (discussing how a document can be incorporated into a contract). Accordingly, the
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provisions in the body of the contracts and the language in the incorporated regulations must be read as a whole.
There is no dispute that in spite of the prohibition set forth in Flagler’s Faculty Handbook, Nova and Walden employed Plaintiff while Flagler employed her full- time. It is also undisputed that Plaintiff never sought, and Flagler never granted, approval for either position.
At the time it terminated her employment, Flagler knew of Plaintiff’s violation by her own admission – in an April 2, 2018 email – and through confirmation from Nova. In this litigation, Flagler has discovered the extent of Plaintiff’s misconduct. In her interrogatory responses, Plaintiff admitted that for several years she earned morefrom Walden than Flagler. (Doc. 58-8). In other words, her involvement at Walden was by no means minor, like one class; it was extensive. And went on for years.
As an additional basis for dismissal, Flagler pled the after-acquired evidence doctrine as an Affirmative Defense. (Doc. 57). In Mootry v. Bethune-Cookman Univ., Inc., 279 So. 3d 207 (Fla. 5th DCA 2019), the court recognized that “[A]n employer may use after-acquired evidence of employee misconduct in defense of a breach of contract case if the employer can demonstrate that it would have fired the employee had it known of the misconduct.” Id. at 210, fn.1 (quotation omitted). Here, Plaintiff cannot legitimately argue that Flagler would not terminate her in light of its discovery of her abuse and disregard of its policy.
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B. Title IX Retaliation Claim
“The private right of action implied by Title IX encompasses claims of retaliation.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 171 (2005). A Title IX retaliation claim is analyzed under the same framework as a retaliation claim under Title VII. Garrett v. University of South Florida Bd. of Trustees, 448 F. Supp. 3d 1286, 1305 (M.D. Fla. 2020); Burks v. Board of Trustees of Florida Agr. & Mech. Univ., -- F. Supp. 3d -- Case No.: 4:19cv275-MW/MAF, 2020 WL 7137108 (N.D. Fla. Dec. 4, 2020). Because Plaintiff bases her claim on circumstantial evidence, the Court’s analysis is provided through the tried-and-true, three-part McDonnell Douglas burden-shifting framework. Johnson v. Miami-Dade County, 948 F.3d 1318, 1325 (S.D. Fla. 2020) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
First, Plaintiff must establish a prima facie case to “raise[] a presumption that the employer’s decision was more likely than not based upon an impermissible factor.” Johnson, 948 F.3d at 1325 (quotation omitted). Plaintiff must show that: (1) she engaged in an activity protected by Title IX; (2) Flagler terminated her employment; and (3) a “causal link” existed between her protected activity and the termination. Garrett, 448 F. Supp. 3d at 1305; Johnson, 948 F.3d at 1325.
If Plaintiff can establish a prima facie case, Flagler has the “exceedingly light burden” of producing at least one legitimate non-retaliatory reason for its decision. Id; see also, Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); Corning v. Lodgenet Interactive Corp., 896 F. Supp. 2d 1138, 1150 (M.D. Fla. 2012). To satisfy its
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burden, Flagler “need only produce admissible evidence which would allow the trier of fact rationally to conclude that the . . . decision had not been motivated by” a retaliatory animus. Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997) (quoting Burdine, 450 U.S. at 257). Flagler has done so, and the inference of retaliation which arose from the prima facie case disappears. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000).
The final step shifts the burden back to Plaintiff to prove that the reason offered by Flagler “was not the real basis for the decision, but a pretext for discrimination.” Johnson, 948 F.3d at 1325 (quotation omitted). Walker v. Prudential Prop. & Cas. Ins. Co., 286 F.3d 1270, 1274 (11th Cir. 2002). Plaintiff must show the protected activity was the “but for” cause of her termination. Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013)8; Adams by and through Kasper v. School Bd. of St. Johns. Cty., 968 F.3d 1286, 1305 (11th Cir. 2020) (citing Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 1739 (2020)); see also Jackson, 544 U.S. at 184.
1. Plaintiff Cannot Establish a Prima Facie Case of Title IX Retaliation
Plaintiff cannot establish the first and third components of her prima facie case, specifically, that she engaged in a protected activity and that Flagler’s termination was causally related to that activity. This failure mandates a judgment in Flagler’s favor.
8 It is appropriate to impose this causation standard at the summary judgment stage to sift out meritless claims. Nasser, 570 U.S. at 358-59 (commenting that imposing any causation standard that was less than “but-for” “would be inconsistent with the structure and operation of Title VII to so raise the costs, both financial and reputational, on an employer whose actions were not in fact the result of any . . . retaliatory intent.”).
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a. Plaintiff did not Engage in Protected Activity
Jackson instructs that the “protected activity” that forms the foundation of any Title IX retaliation case must be a “complain[t] about sex discrimination.” Jackson, 544 U.S. at 173-74). Such a requirement is consistent with and analogous to that required of opposition clause activity in a Title VII case. See 42 U.S.C. § 2000e-3(a).
For Title IX liability to arise, the complaint must be sufficient to provide “actual knowledge” to an appropriate person. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998) (citing 20 U.S.C. § 1682). The substance of that actual knowledge must be sufficient to alert the school official of the harassment and allow the school to initiate remedial and preventive measures. Id. at 291; Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 349 (11th Cir. 2012). Liability may not be based on constructive notice or respondeat superior theories. Gebser, 524 U.S. at 285. Any argument that Flagler “should have known” of potential harassment by Mr. Bolante because of alleged, and ultimately unsupported, past conduct at a previous employer is merely an attempt to create a constructive notice theory of liability. Watson v. Blue Circle, Inc., 324 F.3d 1252, 1259 (11th Cir. 2003); Kocsis v. Florida State Univ. Bd. of Trustees, Case No.: 4:16-cv-529- RH/MJF, 2019 WL 1232866, *5 (N.D. Fla. Feb. 27, 2019), R & R adopted by, 2019 WL 1227711 (N.D. Fla. Mar. 15, 2019), affirmed, 788 Fed. Appx. 680 (11th Cir. 2019).
Under Title VII – and presumably Title IX – the Eleventh Circuit requires that any protected activity have both a subjective and objective component. As the court in Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295 (11th Cir. 2016), recently reaffirmed:
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[A] plaintiff is required to show that she “had a good faith, reasonable belief that the employer was engaged in unlawful employment practices.” Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997). This burden includes both a subjective and an objective component. Id. That is, the plaintiff must not only show that she subjectively (i.e., in good faith) believed the defendant was engaged in unlawful employment practices, but also that her “belief was objectively reasonable in light of the facts and record present.” Id. (emphasis in original); Howard v. Walgreen Co., 605 F.3d 1239, 1244 (11th Cir. 2010). The objective reasonableness of her belief is measured by reference to controlling substantive law. Butler v. Ala. Dep't of Transp., 536 F.3d 1209, 1214 (11th Cir. 2008). Even so, the plaintiff is not required to prove that the discriminatory conduct complained of was actually unlawful. Little, 103 F.3d at 960. The conduct opposed need only “be close enough to support an objectively reasonable belief that it is.” Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th Cir. 1999).
Furcron, 843 F.3d at 1311. In judging the objective reasonableness of a plaintiff’s good- faith belief, the plaintiff is charged with knowledge of the substantive law applicable to the complained-of conduct, for to require otherwise “would eviscerate the objective component of [the] reasonableness inquiry.” Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1388 n.2 (11th Cir.), cert. denied, 525 U.S. 1000 (1998); see also, Clover, 176 F.3d at 1351 (following Harper).
In determining whether Plaintiff satisfied the objective reasonableness component of the test, the court in Clover held:
[I]t is critical to distinguish between the conduct that Clover opposed, i.e., what she saw or heard and then reported during the in-house interview, and the actual conduct [another employee] experienced and reported in her complaint to the EEOC. . . [W]hat counts is only the conduct that person opposed, which cannot be more than what she was aware of. Additional conduct or allegations unknown to the opposing person are not relevant to the opposition clause inquiry.
Id. at 1352. “[R]umors, conclusory allegations, and subjective beliefs ... are wholly insufficient evidence to establish a claim of discrimination as a matter of law.”
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Webb v. R & B Holding Co., 992 F. Supp. 1382, 1388 (S.D. Fla. 1998) (quoting Betkerur v. Aultman Hosp. Ass'n, 78 F.3d 1079, 1096 (6th Cir. 1996) (emphasis added).
In the present case, Plaintiff had neither a subjective nor objective good faith belief of any Title IX violation such that her “complaints” to Ms. Kobryn can be considered protected activity under Title IX. Subjectively, Plaintiff had no facts to support any good faith belief regarding Mr. Bolante. Her information was, at best, rank speculation and rumor. Plaintiff’s information was third-hand, coming from Dr. Saviak (who also could not identify the alleged student victims). Even the alleged source of the information, Mr. Bolante’s former co-workers at the Sheriff’s Office, denied any factual knowledge.
Objectively, the information Plaintiff shared with Ms. Kobryn was devoid of any details, especially a named victim or victims. As involved as she was in Flagler’s Title IX process, Plaintiff knew that the limited information was not sufficient to trigger a Title IX investigation under Flagler’s Sexual Misconduct Policy. Further, Plaintiff did not complain about “sex discrimination.” She passed on a rumor, pure and simple. Examples of complaints giving rise to “protected activity” include when a coach complains about gender inequities between men’s and women’s sports programs; Jackson, supra; Bolla v. Univ. of Hawaii, Case No.: 09–00165 SOM/LEK, 2010 WL 5388008, at ** 10-11 (D. Hi. Dec. 16, 2010); or a student complains about a sexual assault; Doe v. School Dist. No. 1 Denver, Colorado, 970 F.3d 1300, 1311 (10th Cir. 2020); or a faculty alleges actual harassment and misconduct against a supervisor. Mia
Castro, M.D., et al. v. Yale University, et al., Case No.: 3:20cv330 (JBA), 2021 WL 467026 20
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(D. Conn. Feb. 9, 2021). In stark contrast, the information provided by Plaintiff was not actual notice of sex discrimination, but vague, indefinite, and incomplete.
b. Plaintiff Cannot Demonstrate Causation due to the Lack of Decision- maker Knowledge of Plaintiff’s Alleged Protected Activity
Demonstrating a causal connection sufficient for a retaliation claim requires evidence that the “decision-makers were aware of the protected conduct or activity and acted adversely as a result.” Shannon v. BellSouth Telecomm., Inc., 292 F.3d 712, 716 (11th Cir. 2007); see also Callahan v. City of Jacksonville, Fla., 805 Fed. Appx. 749, 752–53 (11th Cir. 2020). “To establish a causal connection, a plaintiff must show that the decision-makers were aware of the protected conduct, and that the protected activity and the adverse action were not wholly unrelated.” Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 590 (11th Cir. 2000).
“It is not enough for the plaintiff to show that someone in the organization knew of the protected expression; instead, the plaintiff must show that the person taking the adverse action was aware of the protected expression.” Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1196 (11th Cir. 1997). In this case, this person is President Joyner. Moreover, causation “must be based on more than mere speculation, conjecture, or surmise.” Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004); see Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (“Speculation does not create a genuine issue of fact.”); Little v. Liquid Air Corp., 37 F.3d 1069, 1079 (5th Cir. 1994) (en banc) (per curiam).
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In Burks v. Board of Trustees of Florida Agr. & Mech. Univ., supra, the court granted summary judgment to a university in a Title IX action based on the lack of decision- maker knowledge. In that case, two months after the Athletic Department was on notice of several complaints from athletes and parents about a coach, and had launched an investigation into the allegations, the coach dismissed two of the complaining athletes. In granting summary judgment, the court held, “It bears repeating that ‘a jury finding that a decisionmaker was aware of [a player’s] protected conduct must be supported by reasonable inferences from the evidence, not mere speculation.’” Burks, 2020 WL 7137108 at *7 (quoting Martin v. Fin. Asset Mgmt. Sys., Inc., 959 F.3d 1048, 1053 (11th Cir. 2020).
In the present case, there is no evidence to refute that Flagler’s decision-maker, President Joyner, made the decision to terminate Plaintiff in April 2018, when he learned of her admitted violation of Flagler’s outside employment policy. Dr. Joyner requested and received written confirmation, and after negotiations between theparties’ counsel failed, issued the official announcement.
In addition, there is no record evidence that Dr. Joyner (or even Dr. Woolfolk or Mr. Springfield) knew of Plaintiff’s anonymous January encounter with Ms. Kobryn until May. To the contrary, the evidence is undisputed that Ms. Kobryn maintained Plaintiff’s anonymity until such time as Plaintiff herself, on May 21, 2018, informed Mr. Springfield of her prior communications with Ms. Kobryn.
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2. Plaintiff Cannot Show That Flagler’s Non-Retaliatory Reason for Terminating Her Employment was a Pretext for Unlawful Retaliation, Nor Can She Prove “But For” Causation
To show pretext, Plaintiff must demonstrate “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.” Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1136 (11th Cir. 2020) (quoting Combs, 106 F.3d at 1538). Plaintiff may not “recast” Flagler’s proffered reason or substitute her interpretation of the policy. Instead, Plaintiff “must meet that reason head on and rebut it, and . . . cannot succeed by simply quarreling with the wisdom of that reason.” Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000).
A few months ago, the Eleventh Circuit, sitting en banc, issued its opinion in Gogel v. Kia Motors Mfg. of Ga., Inc., and instructed:
“[A] reason is not pretext for [retaliation] ‘unless it is shown both that the reason was false, and that [retaliation] was the real reason.’” Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) (quoting Brooks v. Cty. Comm'n of Jefferson Cty., 446 F.3d 1160, 1163 (11th Cir. 2006)). And to repeat, in determining whether the plaintiff has met her burden to show pretext, we remain mindful that it is the plaintiff's burden to provide evidence from which one could reasonably conclude that but for her alleged protected act, her employer would not have fired her.
Gogel, 967 F.3d at 1136 (emphasis added). Here, Plaintiff can neither show that Flagler’s reason is false, nor that retaliation was the real reason for terminating her. Plaintiff cannot provide evidence from which a trier of fact can reasonably conclude that but for her statement to Ms. Kobryn, Flagler would not have fired her.
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Flagler anticipates Plaintiff will argue that other faculty similarly situated were not subjected to the same treatment. In Lewis v. City of Union City, Georgia, 918 F.3d 1213 (11th Cir. 2019), the Eleventh Circuit, en banc, clarified that a proper comparator “must be similarly situated in all material respects.” Id. at 1227. The court identified a nonexclusive list of guideposts, which included requiring the comparator to engage in the same misconduct or violate the same employment policy. Id. at 1227-28 (citations omitted). The court noted this standard “leaves employers the necessary breathing space to make appropriate business judgments.” Id. at 1228 (citations omitted).
Here, the proper comparator should be a Flagler full-time faculty member employed at another educational institution without prior approval who Flagler knew about but didn’t terminate. As stated above, at the time of Plaintiff’s termination, there is no evidence that Flagler had any knowledge of any other full-time faculty member who fits within this query. To the contrary, the undisputed evidence shows that several Flagler faculty members had sought and obtained prior approval to teach a course at another educational institution. Plaintiff’s attempt to use a similarly situated analysis to diffuse Flagler’s reason is foreclosed.
CONCLUSION
For the foregoing reasons, Flagler College respectfully requests this Court grant the instant motion and enter final summary judgment in the College’s favor, and for such other relief as this Court deems proper.
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Dated this 17th day of February, 2021.
Respectfully submitted,
/s/ Michael P. Spellman
MICHAEL P. SPELLMAN (TRIAL COUNSEL)
Florida Bar No. 0937975
Email: mspellman@sniffenlaw.com
ROBERT J. SNIFFEN
Florida Bar No. 0000795 E-mail: rsniffen@sniffenlaw.com
LISA B. FOUNTAIN
Florida Bar No. 948802
Email: lfountain@sniffenlaw.com
SNIFFEN & SPELLMAN, P.A.
123 North Monroe Street Tallahassee, Florida 32301 Telephone: (850) 205-1996
Facsimile: (850) 205-3004
Attorneys for Defendant
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 17th day of February, 2021, a true and correct copy of the foregoing document was electronically filed in the U.S. District Court, Middle District of Florida, using the CM/ECF system which will send a notice of electronic filing to all counsel of record.
/s/ Michael P. Spellman
MICHAEL P. SPELLMAN
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