Case: 18-10484 Date Filed: 02/03/2020 Page: 1 of 33
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-10484 Non-Argument Calendar ________________________
D.C. Docket No. 8:16-cv-01513-CEH-TBM
PATTERSON CEUS,
Plaintiff-Appellant,
versus
CITY OF TAMPA,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(February 3, 2020)
Before WILSON, BRANCH, and HULL, Circuit Judges.
PER CURIAM: Case: 18-10484 Date Filed: 02/03/2020 Page: 2 of 33
Patterson Ceus, a black male, worked as a Tampa Fire Rescue (“TFR”)
firefighter from March 2010 until his termination in May 2015. After TFR
terminated him, Ceus sued the City of Tampa (the “City”), alleging TFR retaliated
against him for reporting discriminatory activity in violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”) and the Florida Civil Rights Act (“FCRA”).1
Based on his complaints of discrimination at TFR, Ceus asserts his superiors
subjected him to unwarranted scrutiny, disciplined him for alleged misconduct that
either did not happen or was only penalized when Ceus engaged in it, downgraded
his performance evaluations, and, ultimately, terminated him.
Following discovery, the City moved for summary judgment. The City
asserted, in relevant part, that Ceus did not establish a prima facie case of
discrimination, and even assuming he did, that he did not provide sufficient
evidence to rebut the City’s non-discriminatory explanations as pretext. The
district court granted the City’s motion and entered judgment in favor of the city.
On appeal, Ceus argues that the district court erred in finding: (1) that his informal
internal complaints were not “protected activity” pursuant to Title VII, (2) that he
failed to show his complaints of discrimination were the but-for cause of the
1 Ceus originally alleged both race discrimination and retaliation, but voluntarily dismissed his discrimination claim with prejudice. 2 Case: 18-10484 Date Filed: 02/03/2020 Page: 3 of 33
adverse actions taken against him, and (3) that he could not show sufficient
evidence that TFR’s reason for his termination was pretext.
Reviewing Ceus’s claims de novo, we conclude that Ceus did not establish a
prima facie case of retaliation. Accordingly, we affirm.
I. Background
TFR, a department within the City of Tampa and Ceus’s former employer, is
structured as a paramilitary-style organization. 2 TFR employees follow a strict
chain of command: firefighters report to Captains, 3 Captains report to District
Chiefs, District Chiefs report to Shift Commanders, and Shift Commanders report
to the Fire Chief. Only the Fire Chief can terminate a firefighter, with approval
from the director of the City’s Human Resources department. Captains and
District Chiefs cannot issue formal discipline that results in a loss of pay. Instead,
their “disciplinary actions” are limited to reporting objectionable conduct in “DA-
52” memos and initiating “career counseling sessions,” which they document in
“TFR-236” memos.4
The parties submitted a document containing stipulated facts for their motions for 2
summary judgment. In reciting the facts, we draw generously from this document. 3 There are three shifts at every TFR fire station—A, B, and C. Each firefighter is assigned one regular shift and one Captain oversees each shift.
4 Although TFR reports negative conduct in DA-52 and TFR-236 memos, these forms are generally used to document that certain events, like counseling sessions, occurred.
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TFR hired Ceus as an entry-level firefighter on March 14, 2010. Although
Ceus claims he was discriminated against from the start, Ceus never complained
about any discrimination he allegedly suffered prior to his transfer to Station 18 in
March 2013.5
A. Station 18
Ceus’s initial complaints stem from his paramedic training at Station 18. In
addition to putting out fires, TFR performs Emergency Medical Services (“EMS”).
Therefore, TFR requires all firefighters, as a condition of their employment, to
obtain their paramedic license within three years of their hire. Within one year of
obtaining that license, firefighters must become departmental paramedics of record
(“POR”). A POR is a paramedic who can independently handle a medical issue or
emergency. To become a POR, a firefighter must pass a POR test and complete
field training. Ceus became a certified paramedic in March 2013, as he entered his
third year of employment. Thus, when Ceus arrived at Station 18 in March 2013,
he had one year to pass the POR test and complete field training.
In order to help him obtain the necessary field training, Captain Brian
Eicholz assigned Ceus to ride as the third person on the station’s EMS Rescue
during his night shifts, in addition to his non-EMS duties during the day. If Ceus
5 While he never reported these acts, Ceus nonetheless alleges in his complaint that sometime between March 2010 and March 2011 his former captain said Ceus “sounded like a slave,” and joked that he had a pit bull that “only barks at black people.” 4 Case: 18-10484 Date Filed: 02/03/2020 Page: 5 of 33
passed the test, he could train in the second seat. But Ceus never passed the POR
test. In fact, he failed it nine times.6 He therefore continued to ride in the third
position.7
On June 13, 2013, Captain Eicholz gave Ceus a 32 out of 60 total points—
amounting to an “unsatisfactory” score—on his 90-day transfer evaluation.
Captain Eicholz identified several issues, including that Ceus communicated
poorly with his supervisors, isolated himself from the crew, and abused his use of
leave.
On July 16, 2013, Ceus filed his first EEOC race discrimination and
retaliation charge for the “treatment at Station 18-C” (“2013 EEOC charge”).
Specifically, he complained that Captain Eicholz discriminated against him on the
basis of race by making him ride third on the rescue car in addition to his daytime
duties. He also asserted that he was required to work on the rescue car without the
premium pay that paramedics normally earn. 8 The City launched an investigation
6 Ceus refused to retake the test a tenth time because of “stress” and his lawyer’s advice not to take the test unless he believed he would pass. He received a D-52 for his refusal from Division Chief Buckley. 7 Occasionally, Ceus would “ride up,” meaning he would ride in the position of a POR, when a POR was not available. In those instances, Ceus was eligible for, and received (albeit upon petition to management), premium pay. 8 In his deposition, Ceus admitted that he does not know any firefighter who received premium pay for riding as a third for training. Ceus was not eligible for the higher pay because only those riding as a POR or Lieutenant qualified.
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in response to the 2013 EEOC charge. At the conclusion of the investigation in
August 2013, the City denied any discrimination had occurred.9
B. Station 10
In June 2013, Ceus was transferred to Station 10. Prior to his performance
evaluation and EEOC charge, Ceus had submitted a bid to transfer to Station 10,
which “was staffed by mostly black firefighters under the command of [then-
Captain] Edward Chapman, who was also black.” Before he officially reported to
Station 10, Captain Chapman asked Ceus to meet him for breakfast at the Open
Café, which is “a black-owned restaurant in a predominately black neighborhood.”
Chapman allegedly told Ceus that he chose that restaurant so he “could openly use
racial slurs about white people.” At the breakfast, Chapman allegedly asked
whether Ceus was “raised around white people” and stated that Ceus “trusted white
people too much.” Ceus did not object to those comments at the time. Nor did
Ceus detect any tension during the breakfast. Rather, Chapman assured Ceus that
“we’re going to take care of you while you’re [at Station 10].”
Although Ceus and Chapman got along well initially, their relationship soon
soured. Both Ceus and Chapman attribute this downturn to an incident on August
14, 2013. Ceus, while on daytime “light duty” for medical reasons, asked
9 During this litigation, Ceus further alleged Eicholz punished him by assigning him to ride third on the EMS Rescue car for repeatedly failing his POR test. 6 Case: 18-10484 Date Filed: 02/03/2020 Page: 7 of 33
Chapman if he could take sleeping pills. 10 Chapman refused because firefighters
are not allowed to sleep during daytime hours unless they have finished their
duties. Ceus then informed the City nurse that Chapman would not allow him to
take prescribed medication. Chapman, who claims he did not know the sleeping
pills were prescribed, drafted a DA-52 memo documenting the order and Ceus’s
reaction. Ceus claims that Chapman began retaliating against him for contacting
the nurse and that Chapman only drafted the DA-52 memo to “cover his ass.”
Ceus and Chapman’s relationship continued to deteriorate as Chapman
repeatedly counseled Ceus regarding performance-related issues. On December
27, 2013 and December 28, 2013, Chapman gave Ceus two separate TFR-236
counseling sessions: one to address unprofessional behavior to a non-TFR crew
member during an EMS call and another for repeatedly questioning Chapman’s
orders. Ceus did not object to the former. With regard to the latter incident, Ceus
explained that he did not question Chapman’s orders but was upset that Chapman
criticized him in front of others.
Despite these incidents, Chapman continued his efforts to help Ceus
advance. Chapman met with Ceus on January 8, 2014 to discuss Ceus’s goals for
10 “Light Duty” refers to an assignment to tasks around the station that are less demanding than typical station duties due to injury or illness. Ceus was on light duty because of a heart condition. 7 Case: 18-10484 Date Filed: 02/03/2020 Page: 8 of 33
the new year.11 They identified Ceus’s short term goal—becoming a POR—and
long-term goal—reaching the next career level of Driver Engineer. In response to
the standard DA-52 memo formally documenting the meeting, Ceus wrote:
I Patterson Ceus don’t have any dreams of advancing on this job. I view this department as a place where dreams go to die. I have encountered all kinds of discrimination on this job and I have made up my mind that this is a racist department. I just want to be left alone, and allowed to do my job as a fire fighter.
This response was the first time anyone or anything made Chapman aware that
Ceus believed he had encountered racial discrimination. These comments
“shocked” Chapman and he showed the document to his superior, Chief Carroll.
On January 14, 2014, Chapman issued a TFR-236 counseling session
regarding Ceus’s use of unscheduled leave. On numerous occasions, Ceus took
leave after a scheduled day off, leading to seven to nine days off in a row.
According to the TFR-236 form, Ceus had taken 317.2 hours of unscheduled leave
in 12 months. The maximum allowable under TFR rules is 72 hours per year.
Ceus replied that he did not believe he was abusing his use of leave because he was
using sick leave (“SKO”) to care for a sick family member. He explained that, per
Chapman’s instruction, he had contacted the personnel office for assistance to
11 Chapman meets with all his crew members at the beginning of every year to motivate them in setting annual goals. He documents these meetings in non-disciplinary DA-52’s, individualized for each crew member. 8 Case: 18-10484 Date Filed: 02/03/2020 Page: 9 of 33
apply for leave under the Family Medical Leave Act (“FMLA”)12 and requested
privacy while he dealt with his undisclosed “personal issue.” Ceus never
submitted the FMLA paperwork and elected not to take FMLA leave but continued
to take unscheduled leave.
On January 29, 2014, Ceus emailed Division Chief Shawn Carroll and
Personnel Chief David Solorzano, requesting a meeting with Fire Chief Thomas
Forward and HR Director Kimberly Crum to discuss “bullying.” At the meeting
(which Chapman also attended), Ceus told Forward that he was “running a racist
department.” Chief Forward was “very engaged” with Ceus’s objections and tried
to inspire Ceus by discussing black firefighters who had risen in the ranks at TFR,
including Chief Forward himself.
On February 1, 2014, Chapman completed Ceus’s annual performance
evaluation, giving him a 31 out of 55 possible points, which amounted to an
overall score of “unsatisfactory.” Approximately two and a half weeks later, Ceus
returned a two-page written response, disagreeing with the evaluation. He claimed
the score was based on the August 2014 medication incident and his refusal to sit
with Chapman at the station house dining table. Ceus also alleged that discussions
at the station house were racially charged and Chapman would “talk negatively”
12 FMLA provides certain employees up to 12 weeks of unpaid, job-protected leave per year for certain family and medical reasons. See 29 U.S.C. § 2601.
9 Case: 18-10484 Date Filed: 02/03/2020 Page: 10 of 33
about TFR employees. For the first time, Chapman raised Chapman’s alleged
racist statements at the June 2013 breakfast. He continued, “the previous racial
situation at station 18C and other racial comments that I have heard from personnel
within the department has helped me develop my opinion about The City of Tampa
Fire Department having a racist issue.”
Upon review, Division Chief Carroll agreed with Chapman’s evaluation and
expressed his disappointment in Ceus’s poor response to supervision. Further,
Carroll stated in his comments to the evaluation: “It is obvious to me that [Ceus] is
unhappy being a part of Tampa Fire Rescue and has ‘made up his mind that this is
a racist department.’ . . . [I] truly believe that he should find employment
elsewhere due to his beliefs.” Carroll explained that he made these comments
“based on [his] interactions with Pat . . . He was a very unhappy individual
working for Tampa Fire Rescue, and it was obvious to me that -- life is too short to
be that miserable.”
At some point, the City’s Human Resources department investigated the
informal allegations against Chapman in Ceus’s February 2014 performance
evaluation response. As part of the investigation, the City interviewed all TFR
employees at Station 10. On September 17, 2014, Division Chief Carroll
interviewed Ceus regarding his complaint against Chapman. Ceus alleges that
Carroll threatened to put him on a 40-hour work week if he “ke[pt] this shit up,”
10 Case: 18-10484 Date Filed: 02/03/2020 Page: 11 of 33
which would have been difficult for Ceus because he lived in Miami and
commuted to Tampa.
C. Station 4
Meanwhile, because of his unsatisfactory February 2014 performance
evaluation, in March 2014, Ceus was transferred to Station 4 under Captain
Gilligan for a 90-day evaluation. Ceus got along well at Station 4 and at the end of
the 90-day review period, Gilligan gave Ceus a “satisfactory” performance review
with a score of 33.
Four other supervisors cited Ceus for poor job performance, particularly
concerning his use of leave, in the months following the vacation time incident.
On September 11, 2014, Captain Gilligan issued a TFR-236 counseling session
regarding Ceus’s failure to report to duty on time and lack of notice ahead of
taking leave. According to the TFR-236 session memo, Ceus failed to report to
duty by 7:30 A.M. on September 2, 2014 and did not inform Gilligan that he would
not be able to make his shift because he was out of town until 8:15 A.M. Gilligan
informed Ceus that he was being docked pay for the 45 minutes he was scheduled
to work but had not notified Gilligan. And Gilligan placed Ceus on Emergency
Annual Leave from 8:15 to the end of his shift at 7:30 A.M. the next day. Gilligan
noted Ceus’s behavior violated TFR Rules and Regulations and “should never be
repeated.”
11 Case: 18-10484 Date Filed: 02/03/2020 Page: 12 of 33
Just over a month later, on October 20, 2014, Acting Division Chief Buckley
sent a DA-52 memo to Forward regarding Ceus’s “repetitive failings” to complete
“specific job requirements” and his unwillingness or inability to comply with
TFR’s policies and procedures. In this memo, Buckley detailed Ceus’s multiple
cancellations of mandatory health physicals, POR test failures, and his inability to
complete service trainings. According to Buckley, these shortcomings were all
exacerbated by Ceus’s frequent use of exchange of times (“EOT”).13 Buckley
therefore recommended, and Chief Forward approved, denying Ceus additional
EOTs until Ceus’s performance improved. 14 At this time, Buckley was not aware
of any EEOC charges or internal investigations into other complaints. In addition,
on November 21, 2014, Acting Division Chief Tim Johnson drafted a TFR-236
career counseling session memo regarding Ceus’s refusal to shave his goatee in
violation of TFR rules. Ceus received two more similar counseling sessions from
Chief Buckley on March 28, 2015, and April 6, 2015. Finally, on April 12, 2015,
Captain Crews provided Ceus a TFR-236 counseling memo for Ceus’s failure to
report to duty on time without notifying the Station in violation of TFR Rules.
13 An EOT is when firefighters switch their scheduled shifts. A station captain and/or higher-ranking supervisor must approve an EOT request. TFR caps the number and frequency a firefighter can use EOTs. 14 Ceus went through the formal grieving process to address his denial of EOTs. His grievance was granted and his payroll was corrected to account for the EOT denial. 12 Case: 18-10484 Date Filed: 02/03/2020 Page: 13 of 33
On September 24, 2014, amid these citations, Ceus filed a second EEOC
charge for alleged discrimination and retaliation (the “2014 EEOC charge”),
alleging TFR threatened to change his schedule from a “flexible 8 day shift change
schedule to a regular daily working schedule, in which no one is assigned to” and
was “forcing [Ceus] to obtain a certificate that non-Black firefighters do not have.”
In the EEOC intake form, Ceus identified several discriminatory actions: the
unsatisfactory 2014 performance evaluation (because he “didn’t eat ice cream with
Chief”), Chapman’s use of “racial slurs” during the June 2013 breakfast, that
Chapman told employees Ceus would not receive a raise because of the amount of
paperwork in his file, that he was accused of the bad acts of others, and finally, that
Chapman did not allow him to rest in bed before 4:30 P.M. In response to the
form’s inquiry as to the reason for these “discriminatory actions,” Ceus wrote that
he “was told that racial comments and statements were made ‘just because’ to me.”
On January 6, 2015, Personnel Chief Solorzano informed Ceus that the City had
completed the investigation into his 2014 EEOC charge against Chapman and
“determined that the complaint was unfounded.”
D. Return to Station 10 and Termination
Ceus was transferred back to Station 10 in early January 2015, but only
worked one shift with Chief Chapman: on January 18, 2015 Chapman was
promoted to District Chief. Chapman kept his personal belongings in a Station 10
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locker while he awaited his new station assignment. In February 2015, the lock on
Chapman’s locker was cut and the locker’s contents were placed in a garbage bag
on the floor. According to Captain William Paz, the Station 10 A-shift captain,
Ceus admitted to Paz that he cut the lock and put Chapman’s belongings in the
garbage bag. Paz told Chapman that Ceus admitted to putting Chapman’s
possessions in the bag. Chapman admits he was “upset with Ceus” and reported
the incident to his superiors. But after reporting Ceus, he had no role in the
investigation of the incident or any disciplinary decisions. On March 6, 2015, Paz
wrote a DA-52 memo documenting Ceus’s admission. Although Ceus did not sign
the DA-52 memo, Captain Paz said he “pretty much owned the conduct.” Ceus
maintains that he did not remove the items from Chapman’s locker, and he did not
admit any wrongdoing to Paz.
On March 2, 2015, Ceus sent a “daman [sic] letter” 15 via email to Kimberly
Marple and Kimberly Crum in the City HR department, demanding reimbursement
for the “slo” and “skp” time that he was forced to use due to “illegal actions by
[his] supervisors.” He added that he would proceed with legal action if he were
not reimbursed and would forward his letter to the City of Tampa’s attorney.
15 Ceus refers to the March 2, 2015 communication as the “daman” letter in his briefs to this Court. The subject line of the email reads “daman letter.” 14 Case: 18-10484 Date Filed: 02/03/2020 Page: 15 of 33
Following a pre-disciplinary hearing on May 6, 2015, Chief Forward, with
approval from the Director of Human Resources, terminated Ceus for violating:
Tampa Fire Rescue (TFR) Rules & Regulations (R&R) 102.01 - Rules of General Conduct (3) “Employees shall respect and obey all laws and ordinances and the provisions of the department S.O.G., including the Rules and Regulations, duties and procedures,” (7) “While on duty, in uniform, or out of uniform, an employee shall display courtesy and respect towards all officers of the department addressing them by their rank and last name.”
in addition to:
City of Tampa’s Personnel Manual, B28.2A (3) (b) Insubordination (5) “Disorderly or inappropriate physical or verbal conduct,” B28.21 (3) (e) Neglect of Duty (1) “Causing damage or loss of public or private property and equipment through negligence or willful misconduct,” and B28.21 (3) (e) Breach of Peace (1) “Being offensive or antagonistic, either physically or verbally, toward any City employee or member of the public at any time.”
The Notice of Disciplinary Action identified the grounds for termination,
and explained Ceus’s “actions as a firefighter, taking it upon [himself] to cut and
remove the lock belonging to a superior and removing the items, was without
approval, inappropriate, and intentionally antagonistic.”
On May 8, 2015, Ceus formally amended his 2014 EEOC charge to add that
on March 23, 2015 the City denied his grievance regarding sick leave even though
white employees were allowed to have replacements do their work on their sick
days so they did not have to use personal time. He also added that TFR discharged
him “for allegedly breaking into the locker of Captain [Chapman].”
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Ceus filed a complaint against TFR on June 11, 2016, claiming the City
discriminated against him on the basis of race in violation of Title VII and § 760.10
Fla. Stat. (Counts 1 and 3) and retaliated against him in violation of Title VII and §
760.10 Fla. Stat. (Counts 2 and 4). The district court granted the City’s motion for
summary judgment, finding that Ceus failed to establish a prima facie case of
discrimination and also failed to rebut the City’s legitimate reason for firing him.
Ceus appealed.
II. Standard of Review
We review a district court’s grant of summary judgment de novo, viewing all
evidence and reasonable factual inferences drawn from it in the light most
favorable to the nonmoving party. See Crawford v. Carroll, 529 F. 3d 961, 964
(11th Cir. 2008). Summary judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a).
III. Discussion
Both Title VII and the FCRA prohibit employers from retaliating against an
employee because that individual engaged in statutorily protected activity, such as
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reporting racial discrimination. 42 U.S.C. § 2000e-3(a);16 Fl. Stat. § 760.10;17
Crawford v. Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271, 273 (2009).
We analyze FCRA claims in the same manner as Title VII claims. Harper v.
Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998). Where, as here,
the plaintiff does not allege direct evidence of discrimination, we turn to the
framework the Supreme Court established in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). See Bryant v. Jones, 575 F. 3d 1281, 1307 (11th Cir. 2009).
Under that framework, the plaintiff must first establish a prima facie case of
retaliation by showing that he: (1) engaged in a statutorily protected activity, (2)
16 In its entirety, 42 U.S.C. § 2000e-3(a), provides:
Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings[:] It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. 17 As relevant here, Fl. Stat. § 760.10 provides:
It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.
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suffered a materially adverse action, and (3) established a causal link between the
protected activity and the materially adverse action. Id. at 1307–08; Burlington
Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). If these
elements are met, the defendant must articulate a legitimate, non-retaliatory reason
for the adverse action. Bryant, 575 F. 3d at 1308. If the employer proffers
legitimate, non-retaliatory reasons for a materially adverse action, the burden shifts
back to the employee to demonstrate, by a preponderance of the evidence, that the
employer’s reasons are pretextual. 18 Furcron v. Mail Centers Plus, LLC, 843 F.3d
1295, 1311 (11th Cir. 2016). At this point “our inquiry proceeds to a new level of
specificity, in which the plaintiff must show that the proffered reason really is a
pretext for unlawful discrimination.” Brooks v. Cnty. Comm’n of Jefferson Cnty.¸
446 F.3d 1160, 1162 (11th Cir. 2006) (quoting EEOC v. Joe’s Stone Crab, Inc.,
296 F.3d 1265, 1272−73 (11th Cir. 2002)). The plaintiff can establish pretext by
showing that the proffered reason for the employment decision was not the true
reason. Brooks, 446 F.3d at 1162−63. To make that showing, the employee must
“produce sufficient evidence to allow a reasonable finder of fact to conclude that
the [employer’s] articulated reasons were not believable.” Id. at 1163. The
18 Although the defendant has the incentive to persuade the factfinder that an employment decision was lawful, “the defendant does not bear a formal burden of persuasion.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 258 (1981). “The ultimate burden of persuading the trier of fact . . . remains at all times with the plaintiff.” Id. at 253. 18 Case: 18-10484 Date Filed: 02/03/2020 Page: 19 of 33
employee can make such a showing by pointing to “weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions” in the employer’s explanation.
Id.
A. Protected Activity
The district court found that Ceus’s protected activity was limited to his
EEOC charges. Ceus claims that the district court erred in finding none of his
internal complaints qualified as statutorily protected activity.
Title VII recognizes two forms of statutorily protected conduct. An
employee is protected from discrimination if (1) “he has opposed any practice
made an unlawful employment practice by this subchapter” (the opposition clause)
or (2) “he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter” (the participation
clause). 42 U.S.C. § 2000e-3(a).
In order to establish a statutorily protected expression under the opposition
clause, a plaintiff must show that he “had a good faith, reasonable belief that the
employer was engaged in unlawful employment practices.” Furcron, 843 F.3d at
1311 (quoting Little v. United Tech., Carrier Transicold Div., 103 F.3d 956, 960
(11th Cir. 1997)). The plaintiff’s burden under this standard has a subjective and
objective component. Id. Thus, a plaintiff must allege both that he honestly
believed his employer was engaged in unlawful employment practices, and that his
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belief was objectively reasonable. Id. Objective belief is measured against the
controlling substantive law. Butler v. Ala. Dep’t of Transp., 536 F.3d 1209, 1214
(11th Cir. 2008). “Title VII does not prohibit all verbal or physical harassment in
the workplace; it is directed only at ‘discriminat[ion] . . . because of . . .
[membership in a protected class].’” Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75, 80 (1998) (emphasis omitted).
In order to have engaged in protected activity under the participation clause,
the employee must have “made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this subchapter,” that is,
subchapter VI of Chapter 21 of Title 42 (42 U.S.C. §§ 2000e−200e-17). 42 U.S.C.
§ 2000e–3(a). This clause 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. E.E.O.C. v. Total Sys. Servs., Inc., 221
F.3d 1171, 1174 (11th Cir. 2000).
Ceus’s two EEOC charges certainly constitute statutorily protected conduct
under the opposition clause. See Berman v. Orkin Exterminating Co., 160 F.3d
697, 702 (11th Cir. 1998) (holding that filing of EEOC charge is protected
activity). But Title VII’s protections are not limited to individuals who file formal
complaints—it protects those who voice informal complaints as well. Rollins v.
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State of Fla. Dep't of Law Enf’t, 868 F.2d 397, 400 (11th Cir. 1989). Ceus argues
the district court erred in finding his internal complaints regarding racism and his
participation in investigations launched in response to those complaints were not
“protected activities” under Title VII. Ceus points to five additional complaints the
district court should have considered: (1) his January 2014 response to the DA-52
Goals memo, (2) his January 2014 “bullying” email and subsequent meeting with
Forward and other superiors (3) his February 2014 response to the annual
performance evaluation, (4) his September 2014 interview with Carroll (in
response to Ceus’s internal complaints about Chapman, during which Carroll
threatened him with a 40-hour workweek), and (5) his March 2015 “daman” email.
None is protected activity.
1. January 2014 Response to DA-52 Goals Memo
Ceus’s January 2014 response to the DA-52 Goals Memo states:
I, Patterson Ceus don’t have any dreams of advancing on this job. I view this department as a place where dreams go to die. I have encountered all kinds of discrimination on this job, and I have made up my mind that this is a racist department. I just want to be left alone and allowed to do my job as a firefighter.
In submitting these comments, Ceus did not engage in a protected activity. In
order to be protected, the employee’s “opposition must be directed at an unlawful
employment practice of an employer, not an act of discrimination by a private
individual.” Little, 103 F.3d at 959. And, in light of the facts and the record
21 Case: 18-10484 Date Filed: 02/03/2020 Page: 22 of 33
presented, the employee must have a good faith, reasonable belief that his
employer was engaged in an unlawful discriminatory practice. Id. at 960. Here,
Ceus does not allege that TFR took any unlawful employment actions: although
Ceus generally decries racism within TFR, Ceus does not tie that assertion to any
specific discrimination he or anyone else employed by TFR faced. Because Ceus’s
January 2014 response to the DA-52 Goals Memo was not directed at what he
reasonably could have believed was an unlawful employment practice, it does not
constitute a protected activity.
2. January 2014 “Bullying” Email
Ceus’s January 2014 email requesting a meeting was also not protected activity
because it did not mention race or discrimination, as Ceus admits, but merely the
unfair treatment of “bullying.” Furcron, 843 F.3d at 1311; Coutu, 47 F.3d at 1074.
Ceus’s claim that the meeting with Chief Forward and Captain Chapman in
response to the “bullying” email is protected activity also fails. In that meeting,
Ceus reiterated that he believed TFR is a “racist department,” but made no mention
of any discrimination or adverse action that he or anyone else employed by TFR
faced. Accordingly, his January 2014 email and the responsive meeting are not
protected activity.
3. February 2014 Response to Annual Performance Evaluation
22 Case: 18-10484 Date Filed: 02/03/2020 Page: 23 of 33
In his response to his February 2014 performance evaluation, Ceus attributed
his low score to “a personal issue” Chapman had against him “from an incident
that occurred while [he] was on light duty [,]” referring to the August 2013
medication incident. Ceus also raised Chapman’s alleged statements concerning
white people and states that he believes TFR has “a racist issue.” Neither of these
statements make this internal complaint a statutorily protected activity.
With regard to the August 2013 light duty incident, by all accounts, that
incident involved a personal disagreement, wholly unrelated to race. Title VII
does not prohibit or regulate workplace issues of civility or personality conflicts.
See Burlington Northern, 548 U.S. at 68 (noting that Title VII does not set out a
“civility code” and that an employee is not immunized from “petty slights or minor
annoyances” that are common in the workplace by reporting discriminatory
behavior). Nor does Ceus’s allegation that Chapman made racially charged
statements about “white people” generally render this allegation protected activity.
“[N]ot every uncalled for, ugly, racist statement by a co-worker is an unlawful
employment practice.” Butler, 536 F.3d at 1213. We held in Butler that it was not
objectively reasonable for the employee to believe that a single incident where a
coworker made an allegedly racist statement that was not aimed at the plaintiff,
and was made outside of work and outside of the presence of supervisors amounted
to an unlawful employment practice. Id. at 1214. Here, Ceus complained about a
23 Case: 18-10484 Date Filed: 02/03/2020 Page: 24 of 33
single incident where Chapman allegedly made negative comments concerning
white people. But Chapman allegedly uttered these insults in a restaurant—not at
the fire station—and before he became Ceus’s supervisor. Moreover, Chapman
did not direct his racial comments about white people towards Ceus, who is black.
And Ceus does otherwise not tie Chapman’s racially charged comments to any
specific discrimination he or anyone else employed by TFR faced. For these
reasons, Ceus’s response to his February 2014 performance evaluation was not a
4. September 2014 Interview with Carroll
Ceus’s interview in September 2014, as part of the City’s internal
investigation into his claims regarding Chapman, was not protected activity under
either the participation or the opposition clauses of Title VII. It is not protected
under the participation clause because TFR did not launch the internal
investigation in response to either EEOC charge. Rather, that investigation was
connected to Ceus’s response to his February 2014 performance evaluation. See
Total System Services, Inc., 221 F.3d at 1174. (Title VII’s participation clause
“does not include participating in an employer’s internal, in-house investigation,
conducted apart from a formal charge with the EEOC.”). And it is not protected
under the opposition clause because Ceus does not allege any specific complaint of
discrimination or retaliation that he made during the interview. Thus, Ceus does
24 Case: 18-10484 Date Filed: 02/03/2020 Page: 25 of 33
not show that he “opposed . . . an unlawful employment practice” during the
interview. § 2000e−3(a).
Ceus argues that the interview was protected activity under the opposition
clause because it was conducted in response to Ceus’s internal complaints about
Chapman. However, as discussed above, Ceus’s complaints against Chapman
were not protected activity. Accordingly, the interview that followed these
complaints is not entitled to protection under Title VII.
5. March 2015 “Daman Letter”
Finally, Ceus’s March 2015 “daman letter,” which does not reference race or
discrimination, does not fall within Title VII’s ambit. In this three-line email to
City HR employees, Ceus “demand[s] that the City of Tampa reimburse the [leave]
time [he] was forced to use due to illegal actions by [TFR] supervisors.” Such a
general statement, without more, does not reveal even a subjective belief of
discrimination. See Coutu, 47 F.3d at 1074 (holding that written grievance was not
protected activity because plaintiff offered no proof of discrimination to support
her conclusory allegations).
B. Causal Link Between Protected Activity and Adverse Action
We next turn to whether any TFR took any materially adverse action against
Ceus because of his protected activity. For an action to be “materially adverse” in
the context of retaliation, the action “must be harmful to the point that [it] could
25 Case: 18-10484 Date Filed: 02/03/2020 Page: 26 of 33
well dissuade a reasonable worker from making or supporting a charge of
discrimination.” Burlington Northern, 548 U.S. at 57.
The district court found that that all but one of the alleged retaliatory
actions—his termination—were not adverse because Ceus did not dispute that the
other actions were not sufficiently material to constitute adverse employment
actions under the law. Therefore, it only considered the possibility that Ceus’s
termination was an adverse action and found it was not sufficiently close in time to
his protected activities—his two EEOC charges—to be causally related. Ceus
urges this Court to view all the alleged retaliatory acts holistically and in
conjunction with his internal complaints. He asserts five specific retaliatory acts:
(1) his transfer from Station 10 to Station 4 in March 2014, (2) Buckley’s denial of
his EOT requests in October 2014, (3) Carroll’s threat to schedule Ceus to work
40-hour workweeks in the September 17, 2014 internal investigation interview, (4)
his February 2014 performance evaluation, and (5) his termination in May 2015.
In focusing our inquiry on whether the proffered adverse acts are causally related
to the protected activity, we assume without deciding that they all had “a
materially adverse effect” on Ceus. Crawford, 529 F. 3d at 973.
Even if an employee can establish statutorily protected activity and a
materially adverse action, he still must show a causal connection between them.
Alvarez, 610 F. 3d at 1268. In order to establish a causal connection, a plaintiff
26 Case: 18-10484 Date Filed: 02/03/2020 Page: 27 of 33
must show that the decision-maker was aware of the protected activity. Shannon v.
Bellsouth Telecomms., Inc., 292 F. 3d 712, 716 (11th Cir. 2002). In addition, the
plaintiff must show that the protected activity was a but-for cause of the adverse
employment action. University of Texas Sw. Medical Center v. Nassar, 570 U.S.
338, 360 (2013); see also Trask v. Sec’y Dept. of Veteran Affairs, 822 F. 3d 1179,
1194 (11th Cir. 2016) (noting the same). To show but-for causation, the plaintiff
must establish that “the unlawful retaliation would not have occurred in the
absence of the alleged wrongful action . . . of the employer.” Nassar, 570 U.S. at
360. “[C]lose temporal proximity between the employee’s protected conduct and
the materially adverse action is sufficient circumstantial evidence to create a
genuine issue of material fact of a causal connection.” Brungart v. BellSouth
Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000) (quotations omitted). We
have held that a three to four-month gap in proximity is too long to show causal
connection, but that a period of one month “is not too protracted.” Higdon v.
Jackson, 393, F.3d 1211,1220 (11th Cir. 2004). Similarly, causation can be
inferred from a series of adverse actions that occurred immediately after a plaintiff
engaged in a protected activity. See Wideman v. Wal-Mart Stores, Inc., 141 F.3d
1453, 1457 (11th Cir. 1998) (finding plaintiff met prima facie case where
managers knew of her EEOC charge and the series of adverse actions commenced
“almost immediately”).
27 Case: 18-10484 Date Filed: 02/03/2020 Page: 28 of 33
Ceus cannot show that any of the adverse employment actions he alleged are
causally related to his June 2013 and September 2014 EEOC charges. The record
shows that prior to Ceus filing this lawsuit, Chapman, Carroll, and Buckley did not
know that Ceus had submitted the 2013 EEOC charge. Therefore, Chapman’s
evaluation of Ceus performance in February 2014, Chapman’s decision to transfer
Ceus in March 2014, Carroll’s threat in the September 2014 interview, and
Buckley’s moratorium on Ceus’s EOTs in October 2014 could not have been
retaliation for his 2013 EEOC charge. See Brungart, 231 F.3d at 800 (In order to
establish a causal relationship between the protected activity and the adverse act,
“the plaintiff must generally show that the decision maker was aware of the
protected conduct at the time of the adverse employment action.”).
Nor are any of the allegedly adverse actions causally related to the 2014
EEOC charge. The February 2014 performance evaluation, the March 2014
transfer, and the September 2014 interview cannot be causally related to the 2014
EEOC charge because they occurred before Ceus filed his 2014 EEOC charge.
Nor can Ceus trace Buckley’s denial of EOTs in October 2014 to his 2014 EEOC
charge because Buckley had no knowledge of either EEOC charge. See id.
The only adverse act that is potentially related to an EEOC charge is his
termination: Chief Forward was aware of the EEOC charges and terminated him
after he filed the charges. But eight months passed between his most recent EEOC
28 Case: 18-10484 Date Filed: 02/03/2020 Page: 29 of 33
charge on September 24, 2104 and his termination on May 6, 2015. That gap is
too long a period to evince temporal proximity. Higdon, 393 F.3d at 1220.
In sum, Ceus has not shown that TFR took a materially adverse action
against him for engaging in a statutorily protected activity. Therefore, the district
court correctly granted summary judgment in favor of the City.
C. Pretext
Even assuming arguendo that Ceus established a prima facie case of
discrimination, Ceus has not shown that TFR’s true motivation for terminating him
was retaliation and its explanations for its actions merely pretext. The City asserts
that it is undisputed that the bases for Ceus’s termination contained in Notice of
Disciplinary Action—including insubordination, neglect of duty, and breach of
peace arising from the locker incident—warrant termination.19 But Ceus argues
that the City’s reliance on the locker vandalism to terminate him was pretext
because TFR could not have had a good faith belief that Ceus vandalized
Chapman’s locker. His argument hinges on whether Paz lied about Ceus’s
confession regarding the locker incident. Ceus claims Captain Paz must have lied
because Ceus was not at work on the day that the Notice of Disciplinary Action
states he removed the items from Captain Chapman’s locker—February 13, 2015.
19 Although he alleges TFR took numerous adverse actions against him, in his brief to this Court, Ceus only attacks the City’s explanation for his termination as pretext. 29 Case: 18-10484 Date Filed: 02/03/2020 Page: 30 of 33
Ceus does not dispute that reported to work on the day Paz reported the alleged
confession—February 14, 2015. The City counters that even if Paz lied, Ceus
failed to show pretext because Chief Forward and HR Director Crum based their
decision on their belief that Ceus committed the acts set forth in Notice of
Disciplinary Action.
But Paz never stated that the vandalism occurred on February 13, 2015.
Paz’s March 6, 2015 DA-52 memo reports that Ceus notified him during a shift
change on February 14, 2015 that “he had removed the contents of newly
promoted Chief C. Chapman and placed the items from said locker into a garbage
bag.” 20 Ceus’s extensive argument regarding his work schedule is a red herring.
And even if Paz was “lying through his teeth,” so long as the
decisionmakers, Chief Forward and HR Director Crum, reasonably believed Paz’s
statements that Ceus admitted to removing the items from the locker, Paz’s falsity
is not evidence of pretext. See Elrod v. Sears, Roebuck & Co., 939 F.2d 1466,
1470 (11th Cir. 1991) (in evaluating pretext, the court must focus on whether the
decisionmakers believed that the employee was guilty of the act and whether that
belief was the reason for termination). Ceus did not present any evidence that the
20 The Notice of Termination does report that the incident occurred on February 13, 2015. It is not clear how TFR arrived on this date, but the City claims that it did not draft the Notice based on witness observation. But the exact date the vandalism occurred is immaterial: Ceus worked on February 11, 2015 and on February 14, 2015. He could have broken into the locker at any time on either of those dates before he spoke to Paz on February 14, 2015. 30 Case: 18-10484 Date Filed: 02/03/2020 Page: 31 of 33
decisionmakers acted dishonestly. Therefore, even if Ceus had established a prima
facie case of discrimination, his claim would nevertheless fail because he failed to
rebut the City’s legitimate, nondiscriminatory reasons for terminating him.
Ceus, however, argues that summary judgment would be improper because
the internal complaints and the retaliatory acts, internal investigation, and
Chapman’s antagonism, taken collectively, establish a “convincing mosaic” of
evidence that the decisionmaker intentionally discriminated against him. This
argument also fails. Chief Forward is the only individual with firing authority at
TFR (and even the HR Director must approve the decision). None of the evidence
Ceus presented would lead a jury to believe Forward, a black male, intentionally
discriminated against Ceus, a black male, who received warning after warning
from supervisors regarding his attitude, behavior, and attendance at work. 21
Accordingly, summary judgment was appropriate and we affirm.
IV. Motion for Sanctions Pursuant to 11th Cir. R. 33-1(f)(2)
On January 3, 2019 the City filed a corrected motion for sanctions against
Ceus, pursuant to Eleventh Circuit Rule 33-1(f)(2), requesting attorney’s fees and
21 In his brief to this Court, Ceus also argues that causation and pretext can be shown under a “cat’s paw” theory. In support of this argument, Ceus asserts that Captain Chapman’s discriminatory animus towards Ceus can be imputed to Forward because Forward did not independently investigate the facts supporting his decision to terminate Ceus. But Ceus did not present his “cat’s paw” argument to the district court and therefore we need not consider whether Captain Chapman’s alleged discriminatory animus can be imputed to Chief Forward’s decision to fire Ceus. Access Now, Inc., 385 F.3d at 1331. 31 Case: 18-10484 Date Filed: 02/03/2020 Page: 32 of 33
costs related to the mediation process. In this Court, “a panel of judges . . . may
direct counsel and parties in an appeal to participate in mediation conducted by the
court’s circuit mediators.” 11th Cir. R. 33-1(c)(1). If a party fails to comply with
this rule, “the court may assess reasonable expenses caused by the failure,
including attorney’s fees; assess all or a portion of the appellate costs; dismiss the
appeal; or take such other appropriate action as the circumstances may warrant.” R.
33-1(f)(2). This Court has complete discretion to assess reasonable expenses and
attorney’s fees. R. 33-1(f)(2).
The City argues sanctions are warranted because Ceus and his counsel failed
to attend two scheduled mediation conferences. On October 19, 2018—the day of
the mediation conference—the City and its attorney appeared by telephone, but
Ceus and his attorney did not. Mediation was then rescheduled for December 11,
2018. Ceus and his counsel again failed to join the call. Due to this failure, the
City “incurred expense.” The City concludes its request by noting that Ceus’s
“non-compliance with this Court’s rules has been a constant theme throughout this
appeal.” Ceus responds that his counsel did not receive any notice regarding the
October 19, 2018 mediation and further, he was out of the office on vacation for
vacation and work from October 18 through October 29, 2019. Nor, Ceus
contends, did Ceus’s counsel receive written notice of the December 11, 2018
meeting. Further, on that date, he was meeting with the wife of a client who had
32 Case: 18-10484 Date Filed: 02/03/2020 Page: 33 of 33
taken his own life the day before. Ceus and his counsel maintain that they “did not
engage in any intentional misconduct,” or deliberately ignore this Court’s rules.
While we have discretion to assess attorney’s fees and costs, the City did not
specify the expenses it bore as a result of Ceus’s failure to attend the mediations.
Nor did it include an affidavit for attorney’s fees or an itemized list of costs. See
Fed. R. App. P. 39(d)(1); 11th Cir. R. 39-2(b). While Ceus and his counsel did
violate this Court’s rules, there is no evidence of bad faith. And missing a
teleconference (which does not require travel or other expenses) is not so great an
offense. We therefore deny the motion for sanctions.
The judgment below is AFFIRMED and the motion for sanctions is DENIED.