Public employees — Counties — Employment discrimination —
Retaliation — Whistleblower — Action by African-American transit security
supervisor who alleged he was given inferior assignments, suspended twice, and
ultimately terminated in retaliation for his objection to white managerial
employee’s use of racial epithet in front of another African-American employee
— Plaintiff failed to demonstrate that county’s proffered reasons for
suspensions and termination were pretextual — Plaintiff failed to present
sufficient circumstantial evidence to establish prima facie case of retaliation
— Although plaintiff clearly engaged in statutorily protected expression by
filing complaints with county’s office of fair employment practices, county
ethics commission, and Equal Employment Opportunity Commission, evidence was
insufficient to demonstrate causal link between the protected expression and
adverse actions taken against him — Plaintiff could not rely on temporal
proximity between his complaints and adverse employment actions to establish
causal link required for prima facie case of retaliation where significant
delays existed between the protected expressions and the adverse actions —
Moreover, case would fail even if plaintiff met burden of proof, as county
offered legitimate, non-discriminatory reasons for suspending and terminating
plaintiff, and plaintiff failed to establish that these reasons were actually a
pretext for retaliation — Limitation of actions — Whistleblower claim with
respect to five-day suspension was time-barred where action was initiated over
180 days after receiving decision from county ethics commission — Whistleblower
claim with respect to ten-day suspension and termination is foreclosed under
Florida Whistle-blower’s Act where plaintiff did not exhaust administrative
remedies, as required by Act — Finally, whistleblower claims would not survive
summary judgment even if administrative remedies had been exhausted where county
articulated legitimate, non-discriminatory reasons for its actions, and
plaintiff failed to cast doubt sufficient to allow reasonable factfinder to
determine that the proffered reasons were pretextual

CHARLES WELLONS, Plaintiff, v. MIAMI-DADE COUNTY, et al., Defendants. U.S.
District Court, Southern District of Florida. Case No.
13-20574-CIV-ALTONAGA/Simonton. February 25, 2014. Cecilia M. Altonaga, Judge.
Counsel: Peter J. Solnick, for Plaintiff. R.A. Cuevas, Jr., Miami-Dade County
Attorney, and William X. Candela, Assistant County Attorney, Miami, for
Defendants.

THIS CAUSE came before the Court on Defendant, Miami-Dade County’s (the
“County[‘s]”) Motion for Summary Judgment . . . (“Motion”) [ECF No. 52], filed
with a Statement of Material Facts . . . (“Defendant’s SMF”) [ECF No. 50] on
December 4, 2013. Plaintiff, Charles Wellons (“Wellons”) filed a Memorandum of
Law in Opposition to Defendant’s Motion for Summary Judgment (“Response”) [ECF
No. 67] together with a Statement of Disputed Material Facts (“Plaintiff’s SMF”)
and a Statement of Additional Facts (“Plaintiff’s SAF”) [ECF No. 65] on January
13, 2014. The County filed its Reply . . . (“Reply”) [ECF No. 78] on February 3,
2014. The Court has carefully considered the parties’ written submissions, the
record, and applicable law.

A. Introduction

This case involves a former County employee’s discrimination, retaliation,
and whistleblower claims against the County following the employee’s five-day
suspension, ten-day suspension, and ultimate termination. Miami-Dade County, a
political subdivision of the State of Florida, operates the County transit
system through the Miami-Dade Transit Agency (the “MDTA”), a County department.
(See Def’s SMF ¶ 1). The MDTA has contracted two private vendors for
security personnel at Metrorail and Metromover stations: Professional Protection
and Investigations Agency (“PPIA”); and 50 State Security Services, Inc. (“50
State”). (See id. ¶ 4). These vendors supply armed and unarmed
private guards to the County for security at bus and rail stations. (See
id.). The armed guards employed by 50 State are known as Professional
Protection Officers (“PPO[s]”). (See id.)

Wellons, an African-American, was hired as a Transit Security Supervisor
(“TSS”) with the MDTA in 2004.2 (See
id. ¶ 5). As an MDTA TSS, Wellons was responsible for monitoring the
private security guards assigned to MDTA stations. (See id.).
Wellons’s direct supervisor was Horace Graham (“Graham”), the Safety and
Security Manager for the MDTA’s Office of Safety and Security (“OSS”).
(See id. ¶ 3; 10-day Suspension Hr’g 113:9-10). Graham, like
Wellons, is African-American. (See De’s SMF ¶ 3; 10-day Suspension Hr’g
114:12-16). Graham reports to Eric Muntan (“Muntan”), the OSS Chief, who is
white. (See id.). Muntan, in turn, directly reports to the MDTA
Director, Ysela Llort (“Director Llort”). (See id. ¶¶ 1, 3).
Although Muntan can recommend termination as a disciplinary action, the
authority to fire MDTA employees rests with Director Llort. (See
id. ¶ 1; Pl.’s SMF ¶ 1).

In August 2006, upon being appointed Interim Chief of Security, Muntan
proclaimed, “I am the new head nigger in charge” in front of OSS employee
Derrick Woodson. (Pl.’s SMF ¶ 7; Def.’s SMF ¶ 6; Wellons Decl. ¶ 7). Woodson
relayed that statement to Wellons, and Wellons subsequently spoke to Muntan and
objected to Muntan’s use of the word. (See Pl.’s SMF ¶¶ 13-14; Wellons
Decl. ¶¶ 8-9). According to Wellons, his disapproval of Muntan’s language led to
the subject retaliatory employment actions from Muntan. (See Pl.’s SMF ¶
9).

On January 20, 2010, Wellons filed a complaint with the County’s Office of
Fair Employment Practices (the “FEP”) claiming he was being retaliated against
for his objection to Muntan’s statement. (See Def.’s SMF 9; Wellons Decl.
¶ 10; Complaint filed with Fair Employment Practices . . . (“FEP Complaint”) 1
[ECF No. 66-7]). When asked about the lapse between Muntan’s statement and the
FEP Complaint, Wellons testified he did not file a complaint sooner because
“[he] thought [he] could talk to Eric [Muntan] man-to-man and resolve it between
[them].” (10-day Suspension Hr’g 134:16-17). Wellons explained he “filed
complaints [regarding Muntan’s statement] after it became clear that pursuant to
[his] raising this issue with Eric [Muntan, he] was being alienated from [his]
job function.” (Id. 114:1-3). Wellons claims Muntan was “assign[ing]
Wellons inferior assignments, exclud[ing] him from essential meetings, and
ignor[ing] him.” (Resp. 14). Wellons’s FEP Complaint named both Muntan and
Graham as subjects of the complaint, discussed Wellons’s objection to Muntan’s
statement, and alleged discrimination based on age and race, retaliation, and
discrimination based on whistleblowing. (FEP Compl. 3-4). The FEP Complaint
named Derrick Woodson — the MDTA employee who personally observed Muntan’s
statement — as a witness. (See id. 6).

Maria Fajardo (“Fajardo”), an investigator with the MDTA’s Office of Civil
Rights and Labor Relations, was tasked with investigating Wellons’s FEP
Complaint. (See Def.’s SMF ¶¶ 2, 9). On January 29, 2010, Fajardo sent an
e-mail to Wellons asking for additional information regarding his complaint.
(See Fajardo’s e-mail of January 29, 2010 [ECF No. 51-15]). In the email,
Fajardo told Wellons, “I am going over the info you gave and using it for
back-up to substantiate your allegations. I will need additional [information]
from you, but we will go one step at a time.” (Id.). Fajardo’s
e-mail also asked Wellons, “What would Derrick Woodson [who was named in
Wellons’s FEP Complaint as a witness] be a witness to?” (Id.). Wellons
did not respond to Fajardo’s e-mail. (See Def.’s SMF ¶ 9). Wellons argues
he “did not refuse to provide information to Farjardo [sic] about Muntan’s use
of [the] ‘N’ word” because Fajardo never asked him about Muntan’s use of the
N-word. (Pl.’s SMF ¶ 9).

On May 20, 2010 — nearly four months later — Cathy Lewis (“Lewis”), Chief
of the Office of Civil Rights and Labor Relations, notified Wellons she was
closing his file. (See Def.’s SMF ¶ 9; Lewis’s Letter to Charles Wellons
of May 20, 2010 [ECF No. 51-16]). In the letter, Lewis noted the Office of Civil
Rights and Labor Relations had requested additional information on January 29,
2010, and had not received a response. (See id.). Lewis also
informed Wellons he could request the Office of Civil Rights and Labor Relations
re-open the investigation. (See id.).

B. Wellons’s Five-Day Suspension

On April 27, 2011, Wellons failed to attend a conference call meeting.
(See Def.’s SMF ¶ 12; Transcript of Civil Service Hearing of the Five-day
Suspension (“5-day Suspension Hearing”) 72:22-24 [ECF No. 51-20]). Graham had
sent Wellons an e-mail regarding the meeting on April 22, 2011. (See
5-day Suspension Hr’g 72:8-11.). Upon noticing Wellons’s absence from the
meeting, Graham called Wellons to remind Wellons of the conference call.
(See id. 16:23-17:6). According to Graham, Wellons picked up the
phone, heard Graham speak, and hung up on Graham. (See id.; Def.’s
SMF ¶ 12). Wellons disputes this fact, arguing Graham never called him to remind
him of the meeting. (See Pl.’s SMF ¶ 12; 5-day Suspension Hr’g
72:25-73:6; Wellons Decl. ¶ 13).

Graham recommended a written reprimand for Wellons based on Graham’s version
of the events, as insubordinate conduct on Wellons’s part. (See Def.’s
SMF ¶ 13). Kelly Lau, an MDTA Labor Relations Specialist, told Graham to issue a
five-day suspension “[b]ecause in the past for cases of insubordination [the
MDTA has] been consistently giving five-day suspensions to employees.”
(Id. (quoting 5-day Suspension Hr’g 57:5-7)). On June 16, 2011, Graham
and Muntan issued Wellons a Disciplinary Action Report (“DAR”) with a five-day
suspension. (See Def.’s SMF ¶¶ 12-13; DAR — Five-Day Suspension 1 [ECF
No. 51-19]).

On June 17, 2011, Wellons appealed his five-day suspension pursuant to
Miami-Dade County Code section 2-47. (See Def.’s SMF ¶ 14; Request for
Civil Service Hearing — 5-day Suspension [ECF No. 51-21]). Wellons also filed a
complaint against Muntan and Graham with the Miami-Dade County Commission on
Ethics and Public Trust (the “Ethics Commission”) on July 7, 2011. (See
Pl.’s SAF ¶ 38; Complaint to Ethics Commission (“Ethics Commission Complaint”) 1
[ECF No. 51-22]). On the Ethics Commission Complaint, Wellons noted the
allegations concerned County whistleblower retaliation. (See id.
2-3). On September 20, 2011 the Ethics Commission issued a finding of “no
probable cause” in response to Wellons’s Ethics Commission Complaint and ordered
his complaint dismissed. (See Def.’s SMF ¶ 14; Order from Ethics
Commission 3 [ECF No. 51-23]).

Both Wellons and Graham testified at the civil service hearing for the appeal
of Wellons’s five-day suspension on November 15, 2011. (See
generally 5-day Suspension Hr’g). At the hearing, Wellons insisted he
never received a call from Graham and would never have hung up on Graham.
(See id. 72:25-73:9). The hearing examiner issued his report on
February 28, 2012, concluding Graham’s testimony at the civil service hearing
was credible. (See Hearing Examiner Donald Ryce’s Report &
Recommendation (“5-day Suspension Hearing Report”) 3-4 [ECF No. 51-25]). The
examiner adopted Graham’s version of events, found Wellons was insubordinate in
intentionally hanging up the phone on Graham, and affirmed the five-day
suspension. (See generally id.).

C. Wellons’s Ten-Day Suspension

On October 14, 2010, Wellons sent an e-mail to Graham, his direct supervisor,
regarding a sexual harassment claim being made by PPO Kim Williams (“PPO
Williams”), one of the PPOs monitored by Wellons. (See October 14, 2010
E-mail from Charles Wellons to Horace Graham [ECF No. 66-9]). In the e-mail,
Wellons recommended removal of PPO Kelvin Gonzalez (“PPO Gonzalez”), the
security guard PPO Williams accused of harassment. (See id.).
Wellons did not receive a response. (See 5-day Suspension Hr’g
121:14-16).

Wellons then contacted 50 State directly, e-mailing John Williams, President
of 50 State, regarding the grievance filed by PPO Williams. (See
id. 122:11-123:7; Wellons Decl. ¶ 23). Graham was copied on the e-mail.
(See October 21. 2010 E-mail from Charles Wellons to John Williams [ECF
No. 66-10]). Graham quickly responded to Wellons’s e-mail to President Williams,
writing “it is the responsibility of the MDT[A] Security Manager to ensure that
proper contract compliance is being met. . . . I can assure you that I will
continue to monitor the situation.” (October 21. 2010 E-mail from Horace Graham
to Charles Wellons 1 [ECF No. 66-11]3). The
next day, Wellons sent an e-mail to Graham “documenting the fact that Miss
Williams brought some concerns to me” and that PPO Williams was subjected to
disciplinary action by 50 State “[w]ithin days” of filing her grievance. (10-day
Suspension Hr’g 124:24-123:5; see also October 22, 2010 E-mail from
Charles Wellons to Horace Graham [ECF No. 66-12]). Wellons explained he wrote
the e-mail to “document for the record that [PPO Williams’s] grievance appeared
to have been ignored by 50 State . . . in violation of the County’s own unlawful
harassment policy.”4 (10-day Suspension
Hr’g 125:3-6). A few months later, in May 2011, Wellons sent e-mails to Lewis
and Angela Menendez at the Office of Civil Rights and Labor Relations requesting
“clarification of [his] role and responsibilities as an MDT[A] Security
Supervisor” in light of Graham’s comments in the October 21 e-mail. (October 21,
2010 E-mail from Horace Graham to Charles Wellons 1).

On May 17, 2011, Wellons sent an e-mail to Graham to report approximately
$1,987.00 had been found on the Metromover. (See May 17, 2011 E-mail from
Charles Wellons to Horace Graham [ECF No. 66-14]). In the e-mail, Wellons noted
PPO Gonzalez had reportedly taken custody of the money. (See id). Wellons
then submitted a complaint to the Office of Inspector General regarding the
missing money. (See Pl.’s SAF ¶ 36). On June 1, 2011, the Office of
Inspector General sent a memorandum to the Miami-Dade Police Department
referring Wellons’s complaint to the Police Department. (See June 1, 2011
Memo from Miami-Dade OIG to Miami-Dade Police Department [ECF No. 66-15]). The
memorandum described the contents of Wellons’s complaint, in which Wellons
identified PPO Gonzalez as having had custody of money that was never turned
over to the MDTA’s Lost and Found Division. (See id.). Eventually,
an internal investigation at 50 State uncovered wrongdoing on the part of
another PPO with respect to the missing money. (See Pl.’s SAF ¶ 37).

On July 18, 2011, PPO Gonzalez filed a complaint with the County Office of
Civil Rights and Labor Relations alleging he was being unlawfully harassed by
Wellons. (See Def.’s SMF ¶ 17; Maria Fajardo’s Report with Complaint from
K. Gonzalez 1 [ECF No. 51-27]). In his complaint, PPO Gonzalez stated his
relationship with Wellons had been strained since the termination of PPO
Williams in October 2010. (See id.). Upon the Office of Civil
Rights and Labor Relations contacting Wellons for a response, Wellons denied
targeting PPO Gonzalez. (See id. 2-3).

The investigative report submitted by Fajardo on August 25, 2011 stated there
was “no substantial evidence” to conclude unlawful harassment under Title VII of
the Civil Rights Act had taken place. (Id. 5). The report did,
however, determine “Mr. Wellons has used his position as a means to target Capt.
Gonzalez since he believes Capt. Gonzalez as [sic] the person primarily
responsible for the termination of PPO Williams.” (Id.). Based on the
investigative report, Lewis issued a fact-finding report from the Office of
Civil Rights and Labor Relations. (See Lewis’s Report of August 25, 2011
[ECF No. 51-28]). The fact-finding report adopted the findings of the
investigative report and recommended OSS management “initiate appropriate
administrative actions regarding Mr. Wellons’ [sic] conduct.” (Id. 2).

On October 31, 2011, Wellons was issued a DAR and ten-day suspension.
(See DAR — Ten-Day Suspension 2 [ECF No. 51-29]). At his deposition,
Muntan explained the ten-day suspension was issued in accordance with MDTA’s
“progressive disciplinary policy.” (Pl.’s SMF ¶ 18; see also Deposition
of Eric Muntan (“Muntan Deposition”) 99:3-21 [ECF No. 66-33]). Muntan testified
“Graham sat down with HR and was involved with Maria Fajardo, and what they were
finding,” and the DAR related to “the Kelvin Gonzalez incident” and the Office
of Civil Rights and Labor Relations’s finding that “Mr. Wellons used his
supervisory authority or abused his supervisory authority.” (Muntan Dep.
100:1-6; 101:4-7). At his own deposition, Graham also testified he issued the
DAR based on the investigation performed by the Office of Civil Rights and Labor
Relations. (See Pl.’s SMF ¶ 18; Deposition of Horace Graham (“Graham
Deposition”) 93:20-23 [ECF No. 66-34]).

On October 31, 2011, Wellons appealed his suspension to an independent
hearing examiner pursuant to Miami-Dade County Code section 2-47. (See
Def.’s SMF ¶ 19; Request for Civil Service Hearing — 10-day Suspension [ECF No.
51-31]). The appeal request form did not ask for a whistleblower hearing.
(See Request for Civil Service Hearing — 10-day Suspension). On October
2, 2012, Wellons attended a civil service hearing for review of his ten-day
suspension. (See generally 10-day Suspension Hr’g). On November 9,
2012, the hearing examiner concluded the ten-day suspension had been issued for
just cause. (See Hearing Examiner’s Report and Recommendation (“10-day
Suspension Hearing Report”) 12 [ECF No. 51-33]). The hearing examiner’s report
noted “Mr. Wellons'[s] defense — that he was that lone voice of truth [in a
morass of corruption and indifference] — fails because it is supported by
solely his testimony. . . . Credible testimony and independent findings were
offered in rebuttal.” (Id. 11).

D. Wellons’s Termination

On February 22, 2012, Wellons observed PPIA officer Albert Montiel sitting at
his post with an unbuttoned shirt, unzipped pants, and “juices and snacks.”
(February 22, 2012 E-mail from Charles Wellons to Horace Graham [ECF No.
66-24]). Wellons e-mailed his observations to Graham, including that Wellons
“did not see what Montiel was doing with his hands,” and Montiel was “well
equipped with enticements (juices and snacks) that may be appealing to the
disadvantaged and young children.” (Id.). Graham forwarded the e-mail to
PPIA President James Fernandez (“PPIA President Fernandez”). (See Pl.’s
SAF ¶ 60). PPIA President Fernandez responded, “What is [Wellons] trying to
imply, that TPO Montiel is a pedophile?” (E-mail from PPIA President James
Fernandez to Hor[ ]ace Graham [ECF No. 51-36]). The e-mail prompted PPIA’s
attorney to issue Wellons a “Notice to Cease and Desist False, Defamatory, and
Tortious Statements” on March 27, 2012. (See Letter from Attorney Samuel
Reiner [ECF No. 51-37]).

On March 9, 2012, Wellons called the PPIA and asked PPIA Project Manager
Reynaldo Rolo if he was aware an EEOC complaint had been filed against the PPIA
and whether the PPIA was going to address the concerns alleged in the complaint.
(See Def.’s SMF ¶ 25). Wellons also asked Rolo about PPIA’s internal
policies and procedures. (See id.). Wellons’s actions prompted
another e-mail from PPIA President Fernandez, in which he wrote Wellons’s
questioning was “out of line and harassing in nature.” (E-mail from PPIA
President James Fernandez [ECF No. 51-39]). PPIA President Fernandez also
requested Wellons be immediately removed from any oversight of PPIA employees.
(See id).

On March 24, 2012, Graham sent Wellons a memorandum alerting Wellons to three
complaints being lodged against Wellons. (See March 14, 2012 Memorandum
from Horace Graham to Charles Wellons 1 [ECF No. 66-26]). The first complaint
was from PPIA President Fernandez regarding Wellons’s e-mailed description of
Albert Montiel. (See id.). The second complaint, also filed by
PPIA President Fernandez, objected to Wellons’s conduct in contacting PPIA
management regarding an EEOC complaint and PPIA internal procedures. (See
id.). The third complaint was from PPO Gonzalez, again alleging Wellons
was targeting him. (See id.).

On April 24, 2012, Graham sent Wellons a memorandum summarizing the
investigation of the three complaints. (See April 24, 2012 Memorandum
from Horace Graham to Charles Wellons [ECF No. 66-28]). The April 24 memorandum
concluded: (1) Wellons’s written intimations regarding Albert Montiel were
“totally out of line and extremely unprofessional[;]” (2) Wellons’s direct
contact with PPIA management was an “unacceptable practice” and “beyond the
scope of the contract oversight of this office[;]” and (3) Wellons had “ignored
those instructions [counseling Wellons on his interactions with Gonzalez] and
continue[d his] untoward behavior towards PPO Gonzalez.” (Id. 2-4).

On May 25, 2012, based on the complaints against Wellons and the subsequent
investigation of those complaints, Graham and Muntan issued a DAR to Wellons
recommending his termination. (See Wellons Decl. ¶ 37; May 25, 2012 DAR 1
[ECF No. 66-30]). Wellons met with Director Llort on July 2, 2012 to discuss the
recommendation and the underlying allegations. (See Def’s SMF ¶ 28;
Wellons Decl. ¶ 39). In advance of his meeting with Director Llort, Wellons sent
her a written rebuttal of the charges in the May 25, 2012 DAR. (See
Wellons Decl. ¶ 37). At the meeting, Director Llort asked Wellons “to provide a
narrative of the reasons why [he] should not be terminated.” (Id. ¶ 39).
Wellons states Director Llort “did not ask [Wellons] a single question about any
of the incidents listed on the DAR.” (Id.).

In addition to speaking with Wellons and reviewing his written rebuttal to
the charges, Director Llort reviewed the DAR and its supporting documents, and
spoke to both Lewis and the president of Wellons’s union, Greg Blackman, in
making her determination to approve Wellons’s termination. (See Def.’s
SMF ¶¶ 29-30). Because Wellons’s written rebuttal complained of Muntan’s
treatment toward him, Director Llort did not consider Muntan’s recommendation in
deciding whether to terminate Wellons. (See id. ¶ 30). She also
disregarded the ten-day suspension in making her determination, because
Wellons’s appeal of that suspension was still pending. (See Def.’s SMF ¶
31). Director Llort did, however, take Wellons’s five-day suspension into
account. (See id.). On July 30, 2012, Director Llort approved
Wellons’s termination. (See May 25, 2012 DAR 1).

Pursuant to the collective bargaining agreement between the County and his
union, Wellons filed a grievance challenging his termination, and on October 30,
2012, Wellons, PPIA President Fernandez, and PPIA Project Manager Reynaldo Rolo
testified at Wellons’s arbitration hearing. (See generally
Arbitration Transcript [ECF No. 51-42]). On December 30, 2012, the arbitrator
denied Wellons’s grievance. (See Arbitration Award 16 [ECF No. 51-8]).
The arbitrator found the MDTA had just cause to terminate Wellons due to
Wellons’s e-mail regarding Albert Montiel, Wellons’s direct questioning of the
PPIA regarding an EEOC complaint, and Wellons’s conduct toward PPO Gonzalez.
(See id. 14-16). The arbitrator found Wellons’s union had not
carried its burden of proof in asserting its affirmative defense that the
charges against Wellons “were part of a campaign by Chief [Eric] Muntan to
destroy Mr. Wellons’ [s] career.” (Id. 15). The arbitrator concluded the
MDTA, in proving the three charges, had established Wellons “effectively
rendered himself unemployable by the MDTA.” (Id. 16).

On January 9, 2012, Wellons filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (the “EEOC”) claiming discrimination on the
basis of his age and race, as well as “retaliation for opposing discriminatory
treatment.” (EEOC Charge Number 846-2012-11435 (“EEOC Complaint”) at 2 [ECF No.
51-32]); see also Def.’s SMF ¶ 20; Pl.’s SAF ¶ 54). On January 7, 2013,
Wellons served his Complaint and Demand for Jury Trial (“Complaint”), filed in
circuit court in Miami-Dade County, Florida [ECF No. 1-2]. Wellons subsequently
filed an Amended Complaint and Demand for Jury Trial (“Amended Complaint”) [ECF
No. 1-3], adding claims under Title VII, 42 U.S.C. sections 2000e through
2000e-17. Pursuant to 28 U.S.C. section 1441(a), the County removed this action
to federal court on February 15, 2013. (See Notice of Removal [ECF No.
1]).

On May 2, 2013, Wellons filed his Second Amended Complaint and Demand for
Jury Trial (“Second Amended Complaint”) [ECF No. 245]. Wellons’s Second Amended Complaint alleges five
counts: (1) retaliation under the Florida Civil Rights Act of 1992, Florida
Statutes section 760.10(7) (the “FCRA”); (2) race discrimination under the FCRA,
Florida Statutes section 760.10(1); (3) race discrimination under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. section 2000e-2(a)(1) (“Title VII”); (4)
retaliation under Title VII, 42 U.S.C. section 2000e-3; and (5) retaliation
under the Florida Whistle-blower’s Act, Florida Statutes section 112.3187 (the
“FWA”). (See generally Second Am. Compl.). The County presently
moves for summary judgment. (See generally Mot.).

Summary judgment shall be rendered if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a
matter of law. See FED. R. CB/. P. 56(a), (c). “[T]he court must view all
evidence and make all reasonable inferences in favor of the party opposing
summary judgment.” Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th
Cir. 2000) (en banc) (quoting Haves v. City of Miami, 52 F.3d 918, 921
(11th Cir. 1995) (internal quotations marks omitted). “An issue of fact is
material if it is a legal element of the claim under the applicable substantive
law which might affect the outcome of the case.” Burgos v. Chertoff, 274
F. App’x 839, 841 (11th Cir. 2008) (quoting Allen v. Tyson Foods Inc.,
121 F.3d 642, 646 (11th Cir. 1997) (internal quotation marks omitted)). “A
factual dispute is genuine ‘if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’ Channa Imps., Inc. v. Hybur, Ltd.,
No. 07-21516-CIV, 2008 WL 2914977, at *2 (S.D. Fla. Jul. 25, 2008) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

The movant’s initial burden on a motion for summary judgment “consists of a
responsibility to inform the court of the basis for its motion and to identify
those portions of the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.” Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (alterations and internal
quotation marks omitted)). “[T]he plain language of Rule 56 mandates the entry
of summary judgment against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Jones
v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012) [23 Fla. L.
Weekly Fed. C1135a] (quoting Celotex, 477 U.S. at 322 (alterations and
internal quotation marks omitted)).

The County argues Wellons’s racial discrimination claims against it and the
MDTA6 — in counts II and III — fail, as
Wellons can neither establish a prima facie case of discrimination nor
show the County’s reasons for suspending and terminating Wellons are pretextual.
(See Mot. 1-2). The County asserts Wellons’s retaliation claims — in
counts I and IV — similarly fail because Wellons cannot establish a prima
facie case of discriminatory retaliation (see id. 20-23), and
even if he could, the County had “legitimate non-discriminatory, non-retaliatory
reasons for suspending and terminating Wellons” (id. 1). The County
further argues Wellons has failed to administratively exhaust his remedies with
respect to his whistleblower claims regarding his ten-day suspension and
termination, and he is time-barred from asserting a whistleblower claim with
respect to his five-day suspension. (See id. 2, 8-9).

In response, Wellons contends his suspensions and termination were “due to
the racial animus Muntan harbored against [Wellons] due to [Wellons’s] race,
African American.” (Resp. 3). Wellons insists his suspensions and termination
“were the result of retaliation.” (Id. 11). Wellons maintains his
retaliation claims survive the County’s Motion because he has presented
sufficient evidence to establish the reasons given for Wellons’s suspensions and
termination were “nothing more than a pretext for retaliation.” (Id. 22).
Finally, Wellons argues his whistleblower claim survives summary judgment
because the County has “fail[ed] to offer any record evidence establishing
Wellons did not exhaust [his] administrative remedies” as to the whistleblower
claim. (Id. 30). Wellons also responds he “told his union
representative after his termination that he wanted to appeal his termination on
two grounds, one of which was a violation of the Employee Protection Ordinance.”
(Id.).

A. Discrimination Claims (Counts II & III)7

The County asserts summary judgment on Wellons’s racial discrimination claims
is appropriate, as “Wellons cannot establish a prima facie claim of
discrimination or retaliation.” (Mot. 1-2). Even if he could establish a
prima facie claim, the County continues, “summary judgment is appropriate
because Wellons certainly cannot show that those reasons [for his suspensions
and ultimate termination] were a pretext for discrimination or retaliation.”
(Id. 2). Wellons responds he has made a prima facie case of
discrimination by presenting direct evidence of discriminatory intent, or in the
alternative, circumstantial evidence of disparate treatment. (See Resp.
5, 7-9). Wellons further argues genuine issues of material fact exist as to
whether the County’s proffered reasons for the adverse actions were pretextual.
(See Resp. 11, 23, 25-29).

Title VII of the Civil Rights Act of 1964 makes it unlawful “to fail or
refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). “A plaintiff may prove a
race discrimination claim through either direct or circumstantial evidence.”
Brown v. Ryder Sys. Inc., No. 11-62746-Civ, 2013 WL 221496, at *4 (S.D.
Fla. Jan. 18, 2013) (citing Hinson v. Clinch Cnty., Ga. Bd. of Educ., 231
F.3d 821, 827 (11th Cir. 2000)). “Direct evidence is evidence, which if
believed, proves the existence of the fact in issue without inference or
presumption.” Maynard
v. Bd. of Regents of Div. of Univs. of Fla. Dep’t of Educ. ex rel. Univ. of S.
Fla., 342 F.3d 1281, 1289 (11th Cir. 2003) [16 Fla. L. Weekly Fed.
C1018a] (alterations, citations, and internal quotation marks omitted). “ ‘Only
the most blatant remarks, whose intent could be nothing other than to
discriminate on the basis of race will constitute direct evidence of
discrimination.’ ” Brown, 2013 WL 221496, at *4 (alterations omitted)
(quoting Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1359
(11th Cir. 1999)). “Additionally, the remarks must be made by decision makers
and related to the decision-making process itself.” Id. (quoting
Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998)).

“Absent such evidence, a plaintiff may prove its case through circumstantial
evidence, using the familiar burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . and
subsequent cases.” E.E.O.C. v. Joe’s Stone Crabs, Inc., 296 F.3d 1265,
1272 (11th Cir. 2002). “Under this framework, the plaintiff initially must
establish a prima facie case of discrimination.” Id. (citation omitted).
A plaintiff makes out a prima facie case of discrimination by
establishing: “(1) he is a member of a protected class; (2) he was qualified for
the position; (3) he suffered an adverse employment action; and (4) he was
replaced by a person outside his protected class or was treated less favorably
than a similarly-situated individual outside his protected class.” Maynard,
342 F.3d at 1289 (citing McDonnell Douglas Corp., 411 U.S. at 802).

“By establishing a prima facie case, the plaintiff creates a rebuttable
presumption that the employer unlawfully discriminated against [him].” Joe’s
Stone Crabs, Inc., 296 F.3d at 1272 [15 Fla. L. Weekly Fed. C775a]
(citing U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714
(1983)). “The burden then shifts to the employer to rebut this presumption by
producing evidence that its action was taken for some legitimate,
non-discriminatory reason.” Id. (citing Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 254-55 (1981)). “An employer’s burden to proffer a
legitimate nondiscriminatory reason for an action is ‘exceedingly light.’ ”
Beha v. Fla., Dep’t of Highway Safety & Motor Vehicles, No.
4:11cv587-RH/CAS, 2012 WL 5258527, at *2 (N.D. Fla. Oct. 24, 2012) (quoting
Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1142 (11th Cir. 1983)).
“At this stage of the inquiry, the defendant need not persuade the court that
its proffered reasons are legitimate; the defendant’s burden is merely one of
production, not proof.” Perryman, 698 F.2d at 1142 (citation and internal
quotation marks omitted).

“Should the employer meet its burden of production, the presumption of
discrimination is rebutted, and the 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.” Joe’s Stone Crabs, Inc., 296
F.3d at 1272-73 (citation and internal quotation marks omitted). “In order to
show pretext, the 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.” Brown, 2013 WL 221496, at *4 (citation and
internal quotation marks omitted). “Provided that the proffered reason is one
that might motivate a reasonable employer, an employee must meet that reason
head on and rebut it, and the employee cannot succeed by simply quarreling with
the wisdom of that reason.” Chapman, 229 F.3d at 1030 (footnote and
citations omitted). “Although the intermediate burdens of production shift back
and forth, the ultimate burden of persuading the trier of fact that the employer
intentionally discriminated against the employee remains at all times with the
plaintiff.” Joe’s Stone Crabs, Inc., 296 F.3d at 1273 (citations
omitted).

Wellons argues Muntan’s “head nigger in charge” statement constitutes direct
evidence of race discrimination against Wellons. (Resp. 5). In support of this
argument, Wellons presents a number of cases where use of the “N-word” was found
to constitute direct evidence of race discrimination. See, e.g., Jones v.
Robinson Prop. Grp., L.P., 427 F.3d 987, 993 (5th Cir. 2005) (finding
appellant demonstrated direct evidence of discrimination where employers’
comments indicated race was a basis, even if not the sole basis, in hiring
decisions); Davis v. Lakeside Motor Co., No. 3:10cv405, 2013 WL 149594,
at *4 (N.D. Ind. Jan. 11, 2013) (finding plaintiff presented direct evidence of
racial discrimination where he was called the N-word on a near-daily basis by
his supervisor); Bailey v. Binyon, 583 F. Supp. 923, 925, 927 (N.D. Ill.
1984) (finding plaintiff had presented direct evidence of discrimination where
he was told “[y]ou’re not a human being, you’re a nigger”). Although “evidence
of derogatory remarks indicative of a discriminatory attitude are generally
admissible to prove discriminatory treatment,” Ross v. Buckeye Cellulose
Corp., 980 F.2d 648, 655 (11th Cir. 1993) (alterations, citations, and
internal quotation marks omitted), Jones, Davis, and Bailey are
all distinguishable from the facts here, where Wellons relies on a statement
that (1) he did not witness, (2) was not directed at him, and (3) was completely
unrelated to the employment decisions at issue (See Resp. 5).

“[D]irect evidence of discrimination [is] evidence which reflects a
discriminatory or retaliatory attitude correlating to the discrimination or
retaliation complained of by the employee.” Wilson v. B/E Aerospace, Inc.,
376 F.3d 1079, 1086 (11th Cir. 2004) (internal quotation marks and citations
omitted). “To establish illegal employment discrimination . . . it is not enough
to present evidence that an employer or coworker used racial epithets at some
point in the past.” Knatt v. Hosp. Serv. Dist. No. 1 of East Baton Rouge
Parish, 327 F. App’x 472, 485 (5th Cir. 2009). Muntan’s remark, which did
not relate to Wellons’s adverse actions and occurred outside of Wellons’s
presence, cannot be considered direct evidence of discrimination. In Mohamed,
the undersigned explained “statements and actions are not direct evidence of
discrimination [when] they merely ‘suggest[ ], but do[ ] not prove’
discrimination.” Mohamed, 2010 WL 2844616 at *7 (quoting Akouri
v. Fla. Dep’t of Transp., 408 F.3d 1338, 1347 (11th Cir. 2005) [18 Fla.
L. Weekly Fed. C537a]) (“Direct evidence of discrimination is evidence, that, if
believed, proves the existence of a fact in issue without interference or
presumption.” (citation and internal quotation marks omitted)). As Plaintiff
himself admits, “a reasonable juror could draw an inference that Muntan’s
usage of the ‘N’ word . . . evidences a racial bias against African Americans,
including Wellons.” (Resp. 5 (emphasis added)). Because a reasonable juror would
be required to draw an inference that Muntan’s statement reflects a
discriminatory animus toward African Americans that led him to suspend and
recommend the termination of Wellons, Muntan’s statement does not constitute
direct evidence of race discrimination against Wellons.

As Wellons has not presented direct evidence of discrimination, he must
proceed under the McDonnell Douglas framework for evaluating
discrimination cases based on circumstantial evidence. Wellons argues he has
satisfied McDonnell Douglas and established a prima facie case of
discrimination under this framework. (See Resp. 7-9). “The burden of
establishing a prima facie case of disparate treatment is not onerous. Yet, to
establish a prima facie case, a plaintiff must adduce evidence tending to show
that the challenged adverse employment action is not readily explainable by
meritorious reasons.” Collins
v. Miami-Dade Cnty., 361 F. Supp. 2d 1362, 1375 (S.D. Fla. 2005) [18
Fla. L. Weekly Fed. D295a] (citations omitted). To meet his burden and establish
a prima facie case, Wellons must show he was “treated less favorably than
a similarly-situated individual outside his protected class.” Maynard,
342 F.3d at 1289 (citing McDonnell Douglas Corp., 411 U.S. at 802).
Because Wellons has not identified similarly-situated individuals with respect
to his ten-day suspension and termination, he has not demonstrated he and a
similarly-situated employee outside of his protected class were treated
differently by the County. See Collins, 361 F. Supp. 2d at 1375-76.
Therefore, Wellons has not established a prima facie case based on
circumstantial evidence as to his ten-day suspension and termination.

As to his five-day suspension, Wellons identifies several other MDTA
employees who fall outside his protected class and who missed conference calls
or meetings without repercussion. (See Resp. 8-9). Those co-workers,
however, were not accused of insubordinate behavior, as Wellons was. (See
Def.’s SMF ¶ 13; Mot. 19; Resp. 8-9). Because Wellons insists Graham never
called him (and, as a result, Wellons could not have hung up on him), Wellons
maintains he was disciplined solely for missing a conference call. (See
Resp. 8). Although the independent hearing examiner who reviewed Wellons’s
five-day suspension rejected Wellons’s civil service hearing testimony that he
never received a call from Graham (see 5-day Suspension Hr’g Report 3-4),
at summary judgment the Court “must construe the facts and draw all inferences
in the light most favorable to the nonmoving party,” Davis
v. Williams, 451 F.3d 759, 763 (11th Cir. 2006) [19 Fla. L. Weekly Fed.
C640a] (citing Evans
v. Stephens, 407 F.3d 1272,1278 (11th Cir. 2005) [18 Fla. L. Weekly Fed.
C516a]). “ ‘[W]hen conflicts arise between the facts evidenced by the parties,
[the court] credit[s] the nonmoving party’s version.’ ” Id.
(citing Evans, 407 F.3d at 1278 (emphasis in original)). Accordingly,
with respect to his five-day suspension, Wellons has met his burden for a
prima facie case.

Because Wellons has established a prima facie case with respect to his
five-day suspension, the burden of production shifts to the County “to
articulate some legitimate, nondiscriminatory reason for the adverse action in
order to rebut the inference of discrimination.” Collins, 361 F. Supp. 2d
at 1376 (citations omitted). Even if Wellons could establish a prima facie
case of discrimination for his ten-day suspension and his termination as
well, the burden of production would similarly shift. Again, “this burden is
exceedingly light.” Id. (citing Perryman, 698 F.2d at 1142). Here,
the County has presented legitimate, non-discriminatory reasons for Wellons’s
five-day suspension, ten-day-suspension, and termination. Wellons was suspended
for five days because he missed a conference call and was insubordinate.
(See DAR — Five-Day Suspension; 5-day Suspension Hr’g 16:23-17:6). He
received a ten-day suspension for using his authority to target PPO Gonzalez
(see Graham Dep. 93:20-23, Lewis’s Report of August 25, 2011), and was
ultimately terminated after an investigation into several complaints against him
corroborated those complaints (see April 24, 2012 Mem. from Horace Graham
to Charles Wellons; May 25, 2012 DAR). Because the County has proffered
legitimate reasons for the adverse actions it took against Wellons, the inquiry
proceeds to the next step, in which Wellons must show the proffered reasons
really are pretext for unlawful discrimination. See Joe’s Stone Crabs, Inc.,
296 F.3d at 1272-73 (citation omitted).

Wellons himself concedes the County has produced a legitimate,
non-discriminatory reason for his five-day suspension (see Resp. 9), but
maintains the County’s proffered reason is pretextual because the County failed
to follow its internal policies and procedures regarding disciplinary action
(see id. 10). Specifically, Wellons claims “the employee is
supposed to be interviewed before a DAR is issued[,]” and he was not.
(Id. 10). The MDTA Policies and Procedures direct an immediate
supervisor to “conduct[ ] a thorough and complete investigation of the
incident.” (MDT Policies and Procedures — Internal Procedure for Disciplinary
Action 1 [ECF No. 66-2]). Although the investigation can include “interviews
[of] employees involved[,]” the policies go on to note “[i]f an incident review
is not required . . . a DAR should be prepared immediately . . . .” (Id.
2). Even if the County had deviated from its policies and procedures in
disciplining Wellons — and the Court finds it did not — “failure to follow
internal procedures is generally not enough to create a genuine issue of fact as
to discriminatory motive.” Butler v. Suntrust Bank, No. 7:12-CV-150 (HL),
2014 WL 575537, at *5 (M.D. Ga. Feb. 11, 2014) (citation omitted).

Wellons also states the County’s proffered reason is pretextual because
“Graham wanted to only reprimand Wellons, while Eric Muntan ordered a
suspension” due to “the discriminatory bias he had against Wellons, an African
American.” (Resp. 11). Wellons mischaracterizes the testimony of MDTA Labor
Relations Specialist Kelly Lau, the individual who advised Graham to issue a
five-day suspension to Wellons. (See Def.’s SMF ¶ 13). Both Graham and
Muntan came to agree with Lau’s recommendation. (See id.).
Accordingly, Wellons has not established the County’s proffered reasons for his
five-day suspension were pretextual.

Wellons has similarly failed to “meet [the County’s proffered] reason[s] head
on and rebut [them]” as to his ten-day suspension and termination. Chapman,
229 F.3d at 1030 (footnote call number and citations omitted). Wellons’s
ten-day suspension was prompted by PPO Gonzalez’s complaint, which was
investigated and sustained by the Office of Civil Rights and Labor Relations.
(See generally Maria Fajardo’s Report with Complaint from K.
Gonzalez). The investigation concluded Wellons had “used his position as a means
to target Capt. Gonzalez.” (Id. 5). Based on the investigation, the Chief
of the Office of Civil Rights and Labor Relations recommended the MDTA OSS
“initiate appropriate administrative actions.” (Lewis’s Report of August 25,
2011 at 2).

Wellons’s termination likewise resulted from an investigation that
substantiated three different complaints against Wellons. (See
generally April 24, 2012 Mem. from Horace Graham to Charles Wellons; May
25, 2012 DAR). The arbitrator at the grievance hearing, in finding the County
had proved its charges against Wellons, concluded Wellons had, through his
conduct, “effectively rendered himself unemployable by the MDTA.” (Arbitration
Award 16). Even more saliently, the authority to terminate Wellons rested solely
with Director Llort, not Muntan. (See Def.’s SMF ¶ 1). Thus, Wellons’s
termination could not have been “due to the racial animus Muntan harbored
against [Wellons] due to his race.” (Resp. 3). Any alleged discriminatory animus
held by Muntan cannot be attributed to Director Llort, who conducted her own
investigation of the May 25, 2012 DAR, the underlying allegations, and Wellons’s
file before she made the decision to terminate him. (See Def.’s SMF ¶¶
28-32). See also Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1331
(11th Cir. 1999) (“When the biased recommender and the actual decisionmaker are
not the same person or persons, a plaintiff may not benefit from the inference
of causation that would arise from their common identity.” (citing Llampallas
v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1248 (11th Cir. 1998))).

In response, Wellons asserts Director Llort was a “cat’s paw.” (Resp. 5).
See Stimpson, 186 F.3d at 1332 (“One way of proving that the
discriminatory animus behind the recommendation caused the discharge is under
the ‘cat’s paw’ theory. This theory provides that causation may be established
if the plaintiff shows that the decisionmaker followed the biased recommendation
without independently investigating the complaint against the employee.” (citing
Llampallas, 163 F.3d at 1249)). Although Wellons claims Director Llort
“failed to conduct virtually any investigation” because she did not ask Wellons
“a single question about the incident” (Resp. 6), Wellons does not dispute
Director Llort met with him in person and “asked [him] to provide a narrative of
the reasons why [he] should not be terminated” (Wellons Decl. ¶ 39). Wellons
maintains Director Llort’s investigation was far from “independent” and nothing
more than a “rubber stamp” (Resp. 6), but “[w]hen opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that
no reasonable jury could believe it, a court should not adopt that version of
the facts for purposes of ruling on a motion for summary judgment,” Scott v.
Harris, 550 U.S. 372, 380 (2007). The record reflects Director Llort did not
“rubber stamp” the recommendation to terminate Wellons: she reviewed the DAR,
the record underlying the DAR, met with Wellons personally, reviewed his written
rebuttal to the charges, and met with Lewis and union president Greg Blackman.
(See Def.’s SMF ¶¶ 28-32). Wellons has not established Director Llort was
a “cat’s paw,” and as a result, Wellons’s termination cannot be attributed to
Muntan’s alleged racial animus.

Aside from maintaining he never hung up on Graham, Wellons does not dispute
any of the County’s factual allegations regarding his conduct as a TSS.
(See generally Resp.). Wellons essentially disagrees with the
reasoning behind the adverse actions taken against him — reasoning that was
sustained, for all three adverse actions, by independent hearing examiners and
an arbitrator. (See generally 5-day Suspension Hr’g Report; 10-day
Suspension Hr’g Report; Arbitration Award). As a result, Wellons has not met his
burden to suggest the County’s reasons for suspending and terminating him are
pretextual. See Jones
v. Miami-Dade Cnty., No.0320674-CIV-ALTONAGA, 2005 WL 2456869, at *7
(S.D. Fla. 2005) [18 Fla. L. Weekly Fed. D822a] (“ ‘The heart of the pretext
inquiry is not whether the employee agrees with the reasons that the employer
gives for the discharge, but whether the employer really was motivated by those
reasons.’ ” (quoting Standard, 161 F.3d at 1333)). Wellons has failed to
demonstrate “such weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions” in the County’s proffered reasons that a reasonable
factfinder could find them all unworthy of credence. Brown, 2013 WL
221496, at *4 (citation and internal quotation marks omitted). Accordingly,
summary judgment on Wellons’s discrimination claims in favor of the County is
appropriate.

B. Retaliation Claims (Counts I & IV)8

The County argues it is entitled to summary judgment on Wellons’s retaliation
claims as Wellons fails to establish a prima facie case of retaliation,
and, in the event he has established a prima facie case, he fails to
establish the County’s proffered reasons for suspending and terminating him were
pretextual. (See Mot. 21-24). Wellons maintains he has established a
prima facie case of retaliation (see Resp. 12-21), and the
evidence he has presented creates a genuine issue of material fact that the
County’s proffered reasons for suspending and terminating Wellons were pretext
(see id. 22-29).

Because Muntan’s statement is not direct evidence of discriminatory
retaliation, Wellons must establish a prima facie case of retaliation
using circumstantial evidence. “In order to establish a prima facie case
of retaliation under Title VII, a plaintiff must demonstrate: (1) he or she
engaged in statutorily protected expression; (2) he or she suffered an adverse
employment action; and (3) there exists a causal link between the protected
expression and the adverse action.” Jones, 2005 WL 2456869, at *5 (citing
Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192,1196 (11th Cir. 1997)).

“To establish prima facie the causation element of a retaliation
claim, the plaintiff need only show that his protected activity and the adverse
employment action are not completely unrelated.” Castillo v. Roche Labs.,
Inc., 467 F. App’x 859, 862 (11th Cir. 2012) (citation omitted). “A
plaintiff satisfies this element by showing that the decision-maker knew of the
protected activity, and that a close temporal proximity existed between this
awareness and the adverse employment action.” Id. (citation omitted).
“But mere temporal proximity, without more, must be very close.” Thomas
v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) [21 Fla.
L. Weekly Fed. C168a] (citation and internal quotation marks omitted).

Once a plaintiff offers sufficient circumstantial evidence to establish a
prima facie case of retaliation, “the burden shifts to the employer to
offer a legitimate, nondiscriminatory reason for the adverse action.” De la
Cruz v. Children’s Trust of Miami-Dade Cnty., 843 F. Supp. 2d 1273, 1281
(S.D. Fla. 2012) (citation omitted). If “the employer proffers a legitimate,
non-discriminatory reason for the adverse employment action, the plaintiff must
then demonstrate that the employer’s proffered explanation is a pretext for
retaliation.” Watson v. Kelley Fleet Servs., LLC, 430 F. App’x 790, 791
(11th Cir. 2011) (citation omitted).

Wellons states his adverse employment actions resulted from formal complaints
he filed with the FEP, the Ethics Commission, and the EEOC. (See Resp.
12-13; Second Am. Comp1. ¶¶ 49, 65). Wellons has satisfied the first two parts
of the prima facie test. Wellons clearly engaged in statutorily protected
expression by filing complaints with the FEP, the Ethics Commission, and the
EEOC, and it is undisputed Wellons has suffered three adverse employment
actions. (See Def.’s SMF ¶¶ 9, 14, 20). To satisfy his prima facie
burden, however, Wellons must demonstrate a causal link between the
statutorily protected expression and the adverse actions taken against him.
See Jones, 2005 WL 2456869, at *5. Wellons relies on the temporal
proximity between his complaints and the adverse actions to establish the causal
link required for a prima facie case of retaliation. Although a plaintiff
can establish the causal element of a prima facie case by demonstrating a
‘close temporal proximity’ between the protected expression and an adverse
action[,]” the proximity must be “very close.” Higdon
v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) [18 Fla. L. Weekly Fed.
C136a] (citations omitted). If there is a delay between the protected expression
and the adverse actions, “the complaint of retaliation fails as a matter of
law.” Id.

The Eleventh Circuit has held a lapse of greater than three months between a
charge of discrimination and the adverse action “does not allow a reasonable
inference of a causal relation between the protected expression and the adverse
action.” Higdon, 393 F.3d at 1221 (citing Clark
Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) [14 Fla. L. Weekly
Fed. S216a]). The Supreme Court has “cited with approval decisions in which a
three to four month disparity was found to be insufficient to show causal
connection.” Id. (citing Clark, 532 U.S. at 273). In Higdon,
the Eleventh Circuit found a three-month period between the employer’s
knowledge of the protected expression and the alleged retaliatory action was too
protracted to establish a causal relationship. See 393 F.3d at 1221.
See also Jones, 2005 WL 2456869, at *6 (“[T]he Eleventh Circuit has noted
that gaps as little as three months between a charge and an adverse employment
action are too long to establish a prima facie case of Title VII
retaliation.” (citing Clark v. Alabama, 141 F. App’x 777 (11th Cir.
2005)).

Wellons’s first protected expression, his complaint with the FEP, occurred
January 20, 2010. (See Def.’s SMF ¶ 9; Wellons Decl. ¶ 10; FEP Compl. 1).
Wellons states his 5-day suspension, issued almost five months later on June 16,
2011 (See DAR — Five-Day Suspension), was retaliatory (See Resp.
12-13). According to Wellons, the temporal delay between his January 2010
complaint and his five-day suspension is not actually five months in light of
Wideman v. Wal-Mart Stores, 141 F.3d 1453 (11th Cir. 1998). In
Wideman, the plaintiff claimed retaliatory actions — including
reprimands and a suspension — began the day after she informed management she
had filed an EEOC charge. Id. at 1455. Wideman was primarily
concerned with whether “Title VII’s protection against retaliatory
discrimination extends to adverse actions which fall short of ultimate
employment decisions.” Id. at 1456. The Wideman court found it
did. Id. In light of the fact that the plaintiff had alleged adverse
actions, the plaintiff had established a prima facie claim of
retaliation. Id. Because “Wal-Mart did not assert in the district court
any non-discriminatory reasons for the adverse employment actions[,]” the
Eleventh Circuit remanded the case for trial. Id. at 1457.

Relying on Wideman, Wellons maintains “adverse actions” were taken
against him shortly after his January 20, 2010 complaint, including that “Muntan
continued to assign Wellons inferior assignments, excluded him from essential
meetings, and ignored him.” (Resp. 14). But as noted by the Wideman
court, “there is some threshold level of substantiality that must be met for
unlawful discrimination to be cognizable under the anti-retaliation clause.”
Wideman, 141 F.3d at 1456. Wellons’s allegations, without more, that he
was “excluded [ ] from essential meetings” and “ignored” before his suspension
do not meet that threshold. (Resp. 14). His five-day suspension clearly
qualifies as an adverse action under Wideman, but that action did not
occur until June 2011.

Significant delays also exist between Wellons’s other protected expressions
and the adverse actions taken against him. On July 7, 2011, Wellons filed a
complaint with the Ethics Commission. (See Ethics Commission Compl. 1).
Wellons received a ten-day suspension on October 31, 2011, over three months
later. (See DAR — Ten-Day Suspension 2). Although Wellons accuses his
supervisors of “intentionally wait[ing] until October 2011 to suspend Wellons .
. . in order to circumvent Federal precedent, which provides a 3-4 month gap
alone does not establish pretext[,]” there is nothing in the record to support
such a conspiratorial accusation. (Resp. 18). Additionally, Wellons filed his
complaint with the EEOC on January 9, 2012. (See EEOC Compl. 2). Muntan
did not recommend Wellons’s termination until May 25, 2012 (See May 25,
2012 DAR), over four months after the EEOC complaint was filed. Director Llort
did not terminate Wellons until July 30, 2012, over six months after the EEOC
complaint was filed (see id.).

Because of the substantial delays between Wellons’s protected expressions and
the adverse actions, the temporal proximity between Wellons’s complaints and the
adverse actions will not singularly establish the causation element of Wellons’s
retaliation claim. See Higdon, 393 F.3d at 1221. Accordingly, Wellons
fails to establish a prima facie retaliation claim with respect to all
the subject adverse actions.

Even if Wellons were to meet his burden for a prima facie case, his
case would still fail. The County has offered legitimate, non-discriminatory
reasons for suspending and terminating Wellons, and Wellons has not met his
burden of establishing the County’s reasons for his suspensions and termination
were actually a pretext for retaliation. See Jones, 2005 WL 2456869, at
*7. Wellons offers no additional evidence of pretext related to his retaliation
claims, and the Court’s analysis of pretext similarly applies here. See
supra, Part III.A. Because Wellons has failed to offer sufficient evidence
to rebut the County’s proffered reasons for his suspensions and termination,
summary judgment is appropriate on the retaliation counts as well.

C. Whistleblower Claim (Count V)

The County argues Wellons’s whistleblower claim for his five-day suspension
is time-barred under the FWA because Wellons received a decision from the Ethics
Commission on September 20, 2011, over 180 days from the date Wellons filed
suit.9 (See Mot. 9; Def.’s SMF ¶
14; Order from Ethics Commission 2). The County further asserts Wellons has
failed to exhaust his administrative remedies with respect to any whistleblower
claims he may have in connection with his ten-day suspension and his
termination. (See Mot. 8-9). In response, Wellons fails to engage the
County’s arguments, maintaining the County has not shown Wellons did not exhaust
his administrative remedies and consequently “fail[s] to sustain its burden on
summary judgment.” (Resp. 30). As support for his opposition to the County’s
arguments, Wellons states he “told his union representative after his
termination that he wanted to appeal his termination on two grounds, one of
which was a violation of the Employee Protection Ordinance.” (Id.).
Wellons does not offer any response regarding his time-barred whistleblower
claim.

Pursuant to the FWA, “[w]ithin 180 days after entry of a final decision by
the local governmental authority, the public employee who filed the complaint
may bring a civil action in any court of competent jurisdiction.” FLA. STAT. §
112.3187(8)(b). Wellons received his decision from the County Ethics Commission
on September 20, 2011. (See Order from Ethics Commission 2). Wellons
initiated this action well over 180 days after receiving the notice. (See
Mot. 8; Notice of Removal 1). As a result, Wellons’s whistleblower claim
with respect to his five-day suspension is time-barred.

Wellons’s whistleblower claim as it relates to his termination is also
foreclosed under the FWA, which requires parties to “file a complaint with the
appropriate local governmental authority, if that authority has established by
ordinance an administrative procedure for handling such complaints.” FLA. STAT.
§ 112.3187(8)(b). The County has an administrative procedure for processing FWA
claims. (See Reply 10). See also Miami-Dade County Code §
2-56.28.17 (describing the County’s administrative procedure for handling
whistleblower complaints); Thomas v. Miami-Dade Pub. Health Trust, 369 F.
App’x 19, 24 (11th Cir. 2010) (“Miami-Dade County [has] adopted an ordinance
establishing an administrative procedure to handle whistle-blower’s claims
against county agencies.”); Pintado v. Miami-Dade Cnty. Hous. Agency, 20
So. 3d 929, 931 (Fla. 3d DCA 2009) (“Pintado appealed [his termination], and a
hearing was conducted pursuant to Miami-Dade County’s civil service ordinance
and the whistle-blower’s ordinance.”). Despite Wellons’s insistence he “told his
union representative after his termination that he wanted to appeal his
termination,” Wellons has not availed himself of the County’s procedures for
whistleblower claims as to his termination, and has therefore failed to exhaust
his administrative remedies as to that claim. (Resp. 30). See Pino v. City of
Miami, 315 F. Supp. 2d 1230, 1251 (S.D. Fla. 2004) (noting plaintiffs
conversations with his union representative did not meet the statutory criteria
of FLA. STAT. § 112.3187); Allocco v. City of Coral Gables, 221 F. Supp.
2d 1317, 1366 (S.D. Fla. 2002) (“In order to successfully bring a whistleblower
claim in court under [the FWA], a plaintiff first must exhaust ‘all available
contractual or administrative remedies.’ ” (quoting FLA. STAT. § 112.3187(8))).

Wellons has similarly failed to exhaust his administrative remedies with
respect to his whistleblower claim as it relates to his ten-day suspension.
Wellons alleges he filed a complaint with the Florida Commission on Human Rights
(the “FCHR”) on December 22, 2011. (See Second Am. Compl. ¶ 31).
Wellons’s Charge of Discrimination, filed with the EEOC on January 9, 2012, also
denotes the FCHR as the state or local agency to investigate the complaint.
(See EEOC Compl. 2). In his Second Amended Complaint, Wellons alleges he
received a notice of right to sue from the EEOC on November 5, 2012 (see
Second Am. Compl. ¶ 43), and the FCHR “failed to make a determination within 180
days” of the filing of Wellons’s EEOC complaint (id. ¶ 44). Although the
FWA provides state employees may file suit within 180 days “[u]pon receipt of
notice from the [FCHR] of termination of the investigation,” FLA. STAT. §
112.3187(8)(a), Section 112.3187(8)(b) provides “if a local government has
adopted by ordinance an administrative procedure to handle whistle-blower
claims, then a local government employee may bring a civil suit only after
exhausting the local government’s established procedures[,]” Thomas, 369
F. App’x at 24 (citing FLA. STAT. § 112.3187(8)(b)). Accordingly, in order to
exhaust his administrative remedies, Wellons had to proceed through the County’s
administrative procedures. See Pino, 315 F. Supp. 2d at 1251 (finding
plaintiff failed to exhaust his administrative remedies and was precluded from
bringing a whistleblower claim against the city where he failed to request a
civil service hearing pursuant to the city’s administrative procedure). Because
Wellons did not satisfy the County’s whistleblower procedures, he has also
failed to exhaust his administrative remedies as to his ten-day
suspension.10

Assuming Wellons had exhausted his administrative remedies with respect to
his ten-day suspension and termination, and was not time-barred as to his
five-day suspension, his whistleblower claims would nevertheless not survive
summary judgment. Whistleblower claims are evaluated under the same
burden-shifting framework as Title VII retaliation claims. See Turner v.
Inzer, 521 F. App’x 762, 764 (11th Cir. 2013) (“We have approved a district
court’s application of a Title VII retaliation analysis to a claim of
retaliatory discharge under the FWA.” (citing Sierminski v. Transouth Fin.
Corp., 216 F.3d 945, 950-51 (11th Cir. 2000))); Castro v. Sch. Bd. of
Manatee Cnty., Fla., 903 F. Supp. 2d 1290, 1302 (M.D. Fla. 2012) (“In
analyzing a retaliation claim under the FWA, courts use the Title VII
burden-shifting method of proof.” (citing Sierminski, 216 F.3d at 950)).
As with Title VII claims, the plaintiff must establish a prima facie case
of discriminatory retaliation, at which point the burden shifts to the employer
to present “legitimate, non-retaliatory reasons for the employment action in
question.” Turner, 521 F. App’x at 754 (citing Pennington
v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001) [14 Fla. L.
Weekly Fed. C1137a]). If the employer can articulate legitimate,
non-discriminatory reasons, it falls to the plaintiff to 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.’ ” Id. (quoting Combs
v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)). As discussed,
see supra, Part III.A, Wellons has not “cast doubt on the [County’s]
proffered non-discriminatory reasons sufficient to allow a reasonable factfinder
to determine” the proffered reasons for his suspensions and terminations were
pretextual. Id. (citing Silvera v. Orange Cnty. Sch. Bd., 244 F.3d
1253, 1258 (11th Cir. 2001)). Therefore, summary judgment is also appropriate as
to count V.

For the foregoing reasons, it is

ORDERED AND ADJUDGED that the County’s Motion [ECF No. 52] is GRANTED. An
order of final judgment shall be entered separately. The Clerk of Court is
instructed to CLOSE the case, and any pending motions are DENIED as moot.

__________________

1Pursuant to Local Rule 56.1, undisputed
facts set forth by the movant and supported by evidence in the record will be
deemed admitted.

2Although Defendant’s Statement of Material
Facts states Wellons was hired in 2001, Wellons’s Declaration says Wellons was
hired in 2004. (See Declaration of Charles Wellons (“Wellons
Declaration”) ¶ 5 [ECF No. 66-31]). The County’s opening statement at Wellons’s
civil service hearing also gives a hiring date of 2004. (See Transcript
of Civil Service Hearing for 10-day Suspension (“10-day Suspension Hearing”)
12:1-2 [ECF Nos. 51-9 & 51-10] (“At the time of the suspension Mr. Wellons
had been employed by MDTA since 2004.”)).

3Where Plaintiff’s and Defendant’s exhibits
lack internal pagination, the Court has used the pagination provided by the
Court’s electronic case management system, CM/ECF.

4The County states PPO Williams’s grievance
was investigated by the County’s Office of Fair Employment Practice. (See
Def.’s SMF ¶ 11; FEP Report of September 1, 2011 [ECF No. 51-18]).

5Wellons’s Second Amended Complaint also
appears at ECF No. 26. The entries are duplicative.

6The County’s Answer . . . [ECF No. 28],
filed May 20, 2013, asserts the MDTA, as a department of the County, is not
sui juris. Wellons originally named the MDTA as a defendant in his state
court complaints (see Compl.; and Am. Compl.), but the MDTA was not
listed as a separate defendant in the County’s Notice of Removal. Wellons again
listed the MDTA as a party on May 2, 2013 (see Notice of Entry of Parties
[ECF No. 27]), but he has not otherwise challenged the County’s position that
the MDTA is not a separate defendant.

The County’s position is well taken. Under Miami-Dade County Code section
2-145, the Miami-Dade Transit Agency does not have the capacity to sue or be
sued, and section 2-148 authorizes the County Attorney to “adjust, compromise,
or settle all damage claims against Miami-Dade County arising out of the
operation of the Miami-Dade Transit Agency.” Other courts have concluded
municipal departments cannot be sued as separate legal entities. See Williams
v. Miami-Dade Police Dep’t, 297 F. App’x 941, 945 (11th Cir. 2008) (noting
the capacity to sue or be sued is determined by the law of the state and finding
the Miami-Dade Police Department, which is not a separate legal entity subject
to suit, lacks the capacity to be sued under the Miami-Dade County Code);
Barteet v. Eismann, No. 13-80434- CIV, 2013 WL 5236640, at *2 (S.D. Fla.
Sept. 17, 2013) (dismissing a claim against the Palm Beach County Planning,
Zoning, and Building Department because it is not a separate legal entity with
the capacity to be sued); Joseph v. City of Tampa Solid Waste Dep’t, No.
8:12-cv-744-T-23TBM, 2012 WL 2865492, at *1 (M.D. Fla. July 11, 2012)
(dismissing a suit against the City of Tampa Solid Waste Department because the
Department lacks the powers of a separate legal entity under the City of Tampa
Code). As such, the Court finds the MDTA is not sui juris and cannot be
sued as a separate defendant.

7The Eleventh Circuit has determined the
FCRA is modeled after Title VII, so that federal case law regarding Title VII is
applicable to construe the Act.” Mohamed v. Pub. Health Trust of Miami-Dade
Cnty., No. 09-21235-CIV, 2010 WL 2844616, at *4 (S.D. Fla. July 19, 2010)
(citations and internal quotation marks omitted). See also Rodriguez v. City
of Clermont, 681 F. Supp. 2d 1313, 1335 n.23 (M.D. Fla. 2009) (“Claims
brought under the FCRA are analyzed under the same framework as claims under
Title VII.” (citing Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385,
1387 (11th Cir. 1998))). Accordingly, the Court addresses the claims together.

8“Plaintiff’s FCRA retaliation claim . . .
is analyzed under the same standards as a Title VII claim.” Masso
v. Miami-Dade Cnty., 465 F. Supp. 2d 1260, 1263 n.1 (S.D. Fla. 2006) [20
Fla. L. Weekly Fed. D166a] (citing Tippie v. Spacelabs Med., Inc., 180 F.
App’x 51,53 n.1 (11th Cir. 2006)). See also Rodriguez, 681 F. Supp. 2d at
1335 n.23 (“Claims brought under the FCRA are analyzed under the same framework
as claims under Title VII.” (citation omitted)). As such, the Court addresses
the claims together.

9Wellons argues “[t]he Order from the
Ethics Commission should be stricken from Defendant’s motion for summary
judgment and trial because it was not disclosed in Defendant’s initial or
supplemental disclosures, and the second supplemental disclosures were served a
month after the discovery deadline.” (Pl.’s SMF ¶ 14). In this regard, Federal
Rule of Civil Procedure 37 proscribes parties from using information that was
not identified under Rule 26(a) “unless the failure was substantially justified
or is harmless.” Under Federal Rule of Civil Procedure 37, the Court has
discretion to exclude untimely submissions. See Bearint
ex rel. Bearint v. Dorell Juvenile Grp., Inc., 389 F.3d 1339, 1348 (11th
Cir. 2004) [18 Fla. L. Weekly Fed. C27a]. Exclusion is unwarranted, however,
when the evidence was known to all and the objecting party was not prejudiced by
the late disclosure. See, e.g., Been v. New Mexico Dep’t of Info. Tech.,
815 F. Supp. 2d 1222, 1244-45 (D.N.M. 2011) (finding plaintiff was not
harmed by nondisclosure of documents where she knew of the contents); Lintz
v. Am. Gen. Fin., Inc., No. Civ.A. 98-2213-JWL, 1999 WL 619045, at *7 (D.
Kan. Aug. 2, 1999) (finding plaintiff was not prejudiced by untimely disclosure
where she knew of a document’s existence and “could not have been surprised by
its contents”). Further, the Committee Notes to Federal Rule of Civil Procedure
37 list omission of “a potential witness known to all parties” as an example of
a “harmless” omission.

Wellons was originally copied on the Ethics Commission’s Order (Order from
Ethics Commission 2), and he has not stated he did not have a copy of the Order
(See generally Plaintiff’s Motion to Strike Exhibits . . . [ECF
No. 54]; and Plaintiff’s Motion to Strike Disclosures . . . [ECF No. 59]).
Moreover, the Court has considered the Order as proof the Ethics Commission
issued a decision on September 20, 2011, and not for the truth of its content.
Because Wellons has presumably had his own copy of the Ethics Commission’s Order
since 2011, he is not prejudiced by the County’s untimely disclosure of the
Order. Accordingly, the Order from the Ethics Commission is not stricken.

10Even if Wellons was eligible for
administrative exhaustion via the FCHR, Wellons never received a notice of
termination of investigation from the FCHR. (See Second Am. Compl. ¶ 44).
Although some courts have construed a notice of right to sue from the EEOC as a
final judgment from the FCHR, those cases have concerned claims brought under
the FCRA. See Dawkins v. Bellsouth Telecomms., Inc., 53 F. Supp. 2d 1356,
1361 (M.D. Fla. 1999) (“[T]he EEOC’s no-cause determination did operate as a
non-cause determination by the FCHR.”); Blakely v. United Servs. Auto. Ass’n,
No. 99-1046-CIV-T-17F, 1999 WL 1053122 (M.D. Fla. Oct. 4, 1999). “Unlike the
[FCRA], the [FWA] contains no provision allowing a complainant to bypass the
administrative process due to a delay by FCHR.” Robinson v. Dep’t of Health,
89 So. 3d 1079, 1083 (Fla. 1st DCA 2012) (“If the Legislature had intended
to allow whistle-blower complaints to proceed to circuit court due to a delay by
FCHR, it would have included language in the Whistle-blower’s Act similar to
that which it provided in the Florida Civil Rights Act.”). Because Wellons never
received a notice of termination of investigation from the FCHR, he cannot claim
to have exhausted his administrative remedies through the FCHR.