UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-21927-CIV-ALTMAN/Goodman

YVETTE HARRELL,

Plaintiff,

v.

CITY OF OPA-LOCKA,

Defendant.

________________________________/

ORDER

Over the last few years, the City of Opa Locka—dealing with financial hardship and a notinsubstantial degree of political controversy—has cycled through several City managers. One of these

was our Plaintiff, Yvette Harrell, who occupied the role twice. Her first stint lasted just a year: from 

June 2016, when she was unexpectedly promoted into the role, to July 2017, when she resigned. Her 

second stint was even shorter: It began on October 4, 2018, after the City fired a male manager and 

brought her in to replace him, and it ended on December 12, 2018—when a newly-installed, fivemember Commission voted 3-to-2 to fire her. The three commissioners who voted to remove Harrell 

explained their reasoning at a regular (and public) meeting of the City Commission—and their 

comments were recorded. As relevant here, they described her as “reactionary,” “ineffective,” and 

“inefficient”; they cited her lack of experience in handling the City’s operations and infrastructure; and 

they observed that employee morale was at an “all-time low”—in large part because they’d heard from 

employees who feared Harrell’s retribution. Harrell, who was present at the meeting, never disputed

any of this—nor did she suggest that she was fired because of her sex. Months later, though, with the 

help of a lawyer, she changed her tune. Now, she claims—without any evidence—that she was actually

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fired because she’s a woman. Since no reasonable jury would agree with her, we GRANT the City’s 

Motion for Summary Judgment [ECF No. 46] (the “MSJ”).

HARRELL’S VIOLATION OF LOCAL RULE 56.1

Unfortunately, we begin with some technical improprieties. As the City rightly points out,

Harrell’s opposition brief—formally, Harrell’s Memorandum of Law in Opposition to the City’s 

Motion for Summary Judgment [ECF No. 53] (“Harrell’s Response”)—“fails to comply with this 

Court’s Local Rule 56.1 and FED. R. CIV. P. 56, generally.” See The City’s Reply in Support of Motion 

for Summary Judgment [ECF No. 54] (the “Reply”) at 1.

We agree that Harrell has violated Local Rule 56.1 in four main ways. First, Harrell didn’t file 

and serve a separate and contemporaneous Statement of Material Facts, as multiple provisions of Local 

Rule 56.1 plainly require. See, e.g., S.D. FLA. L.R. 56.1(a)(1) (“A motion for summary judgment and the 

opposition to it shall each be accompanied by a separate and contemporaneously filed and served 

Statement of Material Facts.”); S.D. FLA. L.R. 56.1(b)(1) (“All Statements of Material Facts (whether 

filed by the movant or opponent) shall be filed and served as separate documents and not as exhibits 

or attachments.”). Instead, she embedded her facts within her Response. See Response at 2–4 

(containing a section titled “Statement of Undisputed Facts”).

Second, Harrell didn’t organize her “facts” to “correspond with the order and paragraph 

numbering format used by the movant.” S.D. FLA. L.R. 56.1(b)(2)(a). She just used her own format, 

which makes it impossible for us to determine which of the City’s facts she’s disputing and which 

she’s conceding. Cf. Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008) (“Specifically, Local Rule 

56.1 protects judicial resources by making the parties organize the evidence rather than leaving the 

burden upon the district judge.”). 

Third, she didn’t “clearly challenge any purportedly material fact asserted by the movant,” S.D.

FLA. L.R. 56.1(a)(2), by using, “as the very first word in each paragraph-by-paragraph response, the 

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word ‘disputed’ or ‘undisputed,’” S.D. FLA. L.R. 56.1(b)(2)(B). She just outlined her own facts without 

properly identifying them as “‘additional facts’ that [she] contends are material to the motion for 

summary judgment[.]” S.D. FLA. L.R. 56.1(b)(2)(D); see also Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1302 

(11th Cir. 2009) (“Where the party responding to a summary judgment motion does not directly refute 

a material fact set forth in the movant’s Statement of Material Facts with specific citations to evidence, 

or otherwise fails to state a valid objection to the material fact pursuant to Local Rule 56.1B(2), such 

fact is deemed admitted by respondent.”).

Fourth, Harrell’s “facts” aren’t, as they must be, “supported by specific, pinpoint references to 

particular parts of record material.” S.D. FLA. L.R. 56.1(b)(1)(B) (cleaned up); see also FED. R. CIV. P.

56(c)(1) (“A party asserting that a fact cannot be or is genuinely disputed must support the assertion 

by: (A) citing to particular parts of materials in the record, including depositions, documents, 

electronically stored information, affidavits, or declarations, stipulations, admissions, interrogatory 

answers, or other materials; or (B) showing that the materials cited do not establish the absence or 

presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support 

the fact.” (emphasis added & cleaned up)). In the three pages of “facts” she buried in her Response, 

Harrell included only three “general citations to exhibits without a page number or pincite.” S.D. FLA.

L.R. 56.1(b)(1)(B) (cleaned up). As a result, the City understandably “cannot even attempt to draft a 

reply statement of facts because it is unclear what Harrell is trying to factually assert.” Reply at 4 n.2.

As redress, the City asks us to “deem[ ] admitted” all of the facts it advanced in its Statement 

of Undisputed Material Facts [ECF No. 47] (the “City’s SOF”). Reply at 4. And that’s precisely what 

we did in a recent case that presented many of the same violations we have here. See Thompson v. WalMart Stores E., L.P., 2022 WL 59678, at *1 (S.D. Fla. Jan. 6, 2022) (Altman, J.). In Thompson, we noted 

that “[a]ll material facts in any party’s Statement of Material Facts may be deemed admitted unless 

controverted by the other party’s Statement of Material Facts, provided that: (i) the Court finds that 

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the material fact at issue is supported by properly cited record evidence; and (ii) any exception under 

FED. R. CIV. P. 56 does not apply.” Id. (quoting S.D. FLA. L.R. 56.1(c)). Given that the plaintiff in that 

case hadn’t controverted any of the defendant’s factual assertions—and because those assertions were 

properly supported by record evidence—we “deemed them admitted[.]” Id. (cleaned up). Our case is 

very similar. Harrell hasn’t controverted any of the City’s factual averments, and those averments 

appear to be properly supported by the record evidence. See generally City’s SOF. As in Thompson, then, 

we’ll “deem admitted” every properly supported fact the City asserted in its SOF. See Thompson, 2022 

WL 59678, at *1; see also Joseph v. Napolitano, 839 F. Supp. 2d 1324, 1328–30 (S.D. Fla. 2012) (Goodman, 

Mag. J.) (“Because Plaintiff did not contradict Defendant’s statement of undisputed material facts and 

because Defendant’s statements are supported by evidence in the record, the facts alleged in the 

Defendant’s statement are deemed admitted.”).

The City also asks us to strike Harrell’s “purported summary judgment evidence,” Reply at 

4—a request we denied in Thompson for two reasons: (1) “some of Thompson’s factual averments were 

properly supported by record evidence—even though they were presented in an improper format”; 

and (2) trial in that case was “around the corner,” so we didn’t “have the time to do what we otherwise 

might have done: strike Thompson’s Response Statement of Facts and order her to submit a new

one,” Thompson, 2022 WL 59678, at *1 (cleaned up) (citing S.D. FLA. L.R. 56.1(d) and observing that 

the Court “may”—but need not—strike a non-conforming statement of material facts). Here, too, 

trial is just a few weeks away, and some—albeit very (very) few—of Harrell’s “facts” are supported by 

the record. So, as in Thompson, we won’t strike all of Harrell’s evidence. Still, as we’re about to see, this 

really is a pyrrhic victory for Harrell, who’s adduced precious little evidence to support her claims. 

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THE FACTS1

A. June 2016–July 2017: Harrell’s first stint as City Manager

“The City Clerk, City Attorney, and City Manager are the three positions that directly report 

to and serve at the pleasure of the City Commission.” Letter dated December 12, 2018, from the Office 

of the Governor [ECF No. 47-7] (the “Governor’s Letter”) at 2 n.4 (emphasis added); see also Harrell’s 

Response (not disputing this point).

On June 9, 2016, when Harrell first stepped in as City Manager, “the City was on the verge of 

bankruptcy.” City’s SOF ¶¶ 3, 7; Harrell’s Response (not disputing this point). Just eight days earlier, 

on June 1, 2016, Florida’s then-Governor, Rick Scott, had issued an executive order “declaring the 

City to be in a state of financial emergency,” and he’d appointed a “state oversight board” to monitor 

the City’s finances. City’s SOF ¶¶ 2–3; Harrell’s Response (not disputing this point). It was, in Harrell’s 

own words, “a financially chaotic and uncertain time” when “insolvency of the City was considered.” 

Harrell’s Response at 2. “Plaintiff Harrell is a female.” Id. at 2. 

It was in this context that Harrell first interacted with Joseph Kelley, who was a “City 

Commissioner when Harrell was appointed acting City Manager . . . through the time that Harrell 

voluntarily resigned from the City on or around July 27, 2017.” Declaration of Joseph Kelley [ECF 

No. 47-1] (“Kelley Decl.”) ¶ 7. Kelley wasn’t kind to Harrell, as Harrell explained in this January 12, 

2017 email:

[City Attorney] Mr. [Vincent] Brown and Ms. [Kierra] Ward:

As the City has no specific manner for me to address the following concern, I have 

chosen to address you both directly.

1 “The facts are described in the light most favorable to [the plaintiff].” Plott v. NCL Am., LLC, 786 

F. App’x 199, 201 (11th Cir. 2019); see also Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002) (“[F]or 

summary judgment purposes, our analysis must begin with a description of the facts in the light most 

favorable to the [non-movant].”).

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Since becoming the City Manager (both acting and permanent), I have endured 

consistent and persistent public ridicule along with statements and actions purposed 

to humiliate and belittle me on many occasions from Vice Mayor Joseph L. Kelley.

Vice Mayor Kelley has made demeaning and offensive comments to me in public 

meetings. In that same forum and others, he has directly and indirectly accused me of 

actions committed by former City Managers and employees, he has sought to 

undermine my authority with City employees and has blatantly lied about my 

responsiveness with respect to his requests.

Although there are several incidents, all of which I have evidence and witnesses to 

corroborate, the last and final incident took place last evening wherein after the 

Commission meeting, the Vice Mayor began to yell and gesture at me in front of City 

staff and members of the Public. He went on a tirade about wanting the “same 

treatment as the Mayor,” while I stood there embarrassed and once again humiliated. 

I endured the treatment in part because I didn’t want to respond in kind, but also in 

part because I didn’t want to escalate the mistreatment by the Vice Mayor.

After careful consideration, however, I have decided that I have had enough. No 

matter what may result from this notice, I will no longer endure the constant public 

humiliation and ridicule, all in an effort to garner for future votes and accolades. I will 

no longer allow the fact that I am female and not his “choice” for City Manager to be 

an accepted reason for mistreatment and harassment. I will no longer subject myself 

to the demeaning culture of the City of Opa-Locka, which has been that some elected 

officials are allowed to behave in abusive manners with reckless regard for decency 

and professionalism (and the law), simply because they were elected. I will no longer 

allow the concern of reprisal to prevent me from making a complaint and taking a 

stand. 

Vice Mayor Kelley has created a hostile work environment for me through his varied 

actions, including undermining my authority by circumventing me and giving 

directives to staff directly, sometimes in contradiction of my directives, but at all times 

in contradiction of the City’s charter and continuously belittling and demeaning me, in 

writing and verbally, in private and in public. His actions have made it difficult, and in 

some cases impossible, for me to perform my duties as City Manager and I will no 

longer function under these circumstances. This situation has continued for far too 

long, without an inkling of any progression towards adjustment or corrective behavior. 

As a result, I am formally placing the City on notice thereof. I will not detail any other 

incidents in light of likelihood of litigation, but consider the foregoing my first, formal 

and only notice.

Kindest regards,

Yvette J. Harrell, Esq.

City Manager

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E-mail from Yvette Harrell, City Manager of Opa Locka, to Vincent Brown, City Attorney of Opa 

Locka, and Kierra Ward, City of Opa Locka Employee (Jan. 12, 2017 5:37 PM EST) [ECF No. 53-1] 

(“Harrell’s January 12, 2017 Email”) (errors in original) (emphasis added)). Keep the italicized phrase 

from this email in mind because it’s the only shred of evidence Harrell offers for her sex-discrimination 

claim. Months later, on July 27, 2017, Harrell resigned from her role as City Manager. See City’s SOF 

¶ 7.

B. October 4, 2018–December 12, 2018: Harrell’s second stint as City Manager

As the Miami Herald explained, in an article Harrell cites, the City Manager’s position had 

become a kind of revolving door. See Sarah Blaskey, Opa-Locka Turns Back the Clock and Rehires its City 

Manager-Turned-Whistle-Blower, THE MIAMI HERALD (Dec. 14, 2018) [ECF No. 53-4] (the “Miami 

Herald Article”) at 2. As relevant here, “[t]he interim City Manager prior to Harrell’s return to the City 

in October 2018, Newell Daughtrey, was terminated by the former City Commission in October 2018. 

That same Commission hired Harrell to replace Daughtrey in October 2018.” City’s SOF ¶ 33; 

Harrell’s Response (not disputing this). In other words, “Daughtrey was fired on October 2, [2018] 

after just six months on the job and replaced by Yvette Harrell[.]” Miami Herald Article at 2; Harrell’s 

Response (not disputing this point). Harrell “always understood that she was hired in an interim 

capacity in October 2018, as [Mayor Matthew Pigatt] discussed with [her] how the City intended to 

hire a permanent City Manager and how he desired for the City to engage a recruiting firm to conduct 

a national search for a permanent manager.” City’s SOF ¶ 40 (quoting the Declaration of Mayor 

Matthew Pigatt [ECF No. 47-3] (“Pigatt Decl.”) ¶ 9; Harrell’s Response (not disputing this point).

In early November 2018 (just a month into Harrell’s second stint as City Manager) the people 

of Opa Locka voted in a new City Commission. See City’s SOF ¶ 34 (“[T]he newly-elected and constituted 

November 2018 City Commission was not to be bound by the actions of the former Commission.” 

(emphasis added)); Harrell’s Response (not disputing this point). And the new City Commission 

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“made it very clear that a national search would be conducted to find a permanent City Manager with 

skills and experience in operating a local government[,] as the City experienced far too much turnover 

with this position in years past and sought stability with respect to such position.” City’s SOF ¶ 35

(citing Kelley Decl. ¶ 25); Harrell’s Response (not disputing this point).

One of the new commissioners was Sherelean Bass. See Declaration of Sherelean Bass [ECF 

No. 47-2] (“Bass Decl.”) ¶ 2 (“I served as Commissioner on the City of Opa-Locka’s five-member 

Commission from November 2018 to November 2020.” (cleaned up)); Harrell’s Response (not 

disputing this point). Commissioner Bass is female. See Harrell’s Response at 11 (agreeing that “Bass 

is a female”). Kelley was also part of the new City Commission. See Kelley Decl. ¶ 2 (“I served as a 

Commissioner on the City of Opa Locka’s five-member Commission from November 2018 to 

November 2020. I have also served as a City Commissioner, Mayor, and Vice Mayor at various other 

times since 2000.”); Harrell’s Response (not disputing this point).

In Harrell’s first meeting with Commissioner Bass—shortly after Bass was elected—“Harrell 

spoke negatively to Bass about the City and the state oversight board and told Bass she did not believe 

the state oversight board had the City’s best interests in mind, that the state oversight board was not 

working with the City, and that the state oversight board was not supporting the City.” City’s SOF ¶¶ 

17–18.2 Commissioner Bass left that conversation with a poor impression of Harrell and “became 

2 In an unsworn declaration she attached to her Response, Harrell avers that she “at no time spoke 

negatively to Bass about the City or the oversight board.” Declaration of Yvette Harrell [ECF No. 53-

5] (“Harrell Decl.”) ¶ 12. Normally, of course, we’d credit Harrell’s side of the story. But this averment 

doesn’t create a genuine issue here because Harrell didn’t sign or date her declaration, see id. at 2 (showing 

no signature or date)—as the law requires, see 28 U.S.C. § 1746 (requiring that declarations be 

“subscribed by [the declarant], as true under penalty of perjury, and dated”). We thus cannot—and 

will not—consider Harrell’s declaration in adjudicating the City’s MSJ. See Carr v. Tatangelo, 338 F.3d 

1259, 1273 n.26 (11th Cir. 2003) (“Unsworn statements do not meet the requirements of Fed. R. Civ. 

P. 56(e) and cannot be considered by a district court in ruling on a summary judgment motion.” 

(cleaned up)); see also Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988) (“It is a settled 

rule in this circuit that an unsworn affidavit is incompetent to raise a fact issue precluding summary 

judgment.”); Ifergane v. Fratellini, 2020 WL 248969, at *2 n.2 (S.D. Fla. Jan. 16, 2020) (Scola, J.) 

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concerned about Harrell’s negativity”; in particular, she believed “that a City Manager, such as Harrell, 

should be on the same page as the state oversight board given the dire financial situation the City 

experienced at that time.” Bass Decl. ¶¶ 6–7; Harrell’s Response (only disputing this in her 

declaration—which (as we’ve said) isn’t evidence and thus doesn’t create a genuine issue of fact).

Nor did Harrell make amends with Commissioner Kelley during her second stint as City 

Manager. If anything, in fact, their relationship deteriorated. In a letter she sent to the City Commission

on November 14, 2018, Harrell alleged that “[a]t least one member of the sitting Commission”: (1) 

“required Staff to perform tasks for private citizens during their City work day”; (2) “used [his] position 

to directly influence and interfere with personnel decisions that are reserved for the Manager, namely 

the reinstatement of terminated personnel”; and (3) “used [his] position and influence to create a 

working environment not conducive to productivity because of their direct ridicule and criticism 

towards City Staff.” Letter from Yvette Harrell, Esq., City Manager of Opa Locka, to the City 

Commission of Opa Locka (Nov. 14, 2020) [ECF No. 53-2] (“Harrell’s November 14, 2018 Letter”). 

In an email she sent twelve days later, Harrell identified Kelley as the “one member of the sitting 

Commission” she was complaining about. See E-mail from Yvette Harrell, City Manager of Opa 

Locka, to Matthew Pigatt, Mayor of Opa Locka (Nov. 26, 2018 9:49 AM EST) [ECF No. 53-3] 

(“Harrell’s November 26, 2018 Email”). 

(“Because Ifergane’s declaration is neither signed nor dated, the Court will not consider it in evaluating 

the Defendants’ motions for summary judgment.”); Beard v. Green, 2010 WL 411084, at *10 (S.D. Fla. 

Jan. 29, 2010) (Seitz, J.) (“Just as is true for an unsworn affidavit, a document which does not meet 

the requirements of Fed. R. Civ. P. 56(e) or 28 U.S.C. § 1746, is to be disregarded by a court in 

conjunction with its review of the record in consideration of a defendant’s motion for summary 

judgment.”); Bryant v. Orlando Sentinel Commc’ns Co., 2007 WL 1796258, at *5 (M.D. Fla. June 20, 2007) 

(noting that an “affidavit [was] deficient” because “the document contains no signature or seal,” and 

adding that this deficiency “render[s] Plaintiff’s affidavit inadmissible for purposes of ruling on the 

[defendant’s] motion for summary judgment”).

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C. The Fateful Commission Meeting3

On December 12, 2018, the City Commission met for an open—and publicly scheduled—

meeting at an Opa Locka auditorium. See Meeting Minutes at 1. The meeting, which was video- and 

audio-recorded, began with a “call to order,” a “roll call,” an “invocation,” and a “pledge of allegiance.” 

Meeting Video at 0:01–4:20; see also Meeting Minutes at 1. Seated on the dais, from left to right, were

City Clerk Joanna Flores, the five members of the City Commission—Kelley, Vice Mayor Chris Davis, 

Mayor Pigatt, Commissioner Alvin Burke, and Bass—City Manager Harrell, and City Attorney Brown. 

See generally Meeting Video. A “Resolution of the City Commission of the City of Opa Locka, Florida, 

Terminating City Manager Yvette Harrell”—which we’ll refer to as “the Resolution”—was listed on 

the meeting’s agenda as “Action Item 13-9.” Meeting Minutes at 5. At the outset of the meeting,

Mayor Pigatt designated the Resolution for separate discussion. See Meeting Video at 3:50–4:50; see 

also Meeting Minutes at 1, 5. 

When the time came for public comment, three Opa Locka residents spoke up on Harrell’s 

behalf. See Meeting Minutes at 3–4. The first of these, Dorothy Johnson, said that she was “concerned 

that the City is constantly replacing managers” and opined that “the City needs stability.” Meeting 

Video at 14:20–14:40. She also urged the Commission to “give [Harrell] a chance” and asked the 

commissioners: “[P]lease do not let your City Manager go because of personality or retaliation.” Id. at 

14:55–15:30.

The second resident, Manuel Perez, asked to know “why we have to move the Manager so 

often? Don’t you think we should give them more time to show us what they can do? I think that’s 

good if you see them do the job little by little instead of taking them up and down, up and down, and 

3 We take the facts about this meeting from two sources: (1) a video recording of the meeting, which 

the City filed conventionally [ECF No. 50] (the “Meeting Video”); and (2) the “Clerk’s Action 

Summary Minutes from the Regular Commission Meeting on Wednesday, December 12, 2018” [ECF 

No. 47-5] (the “Meeting Minutes”).

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that way we know what they can do.” Id. at 15:30–16:30.

Finally, Herbert Tarvin—on behalf of himself and other unnamed residents who couldn’t 

attend—insisted that “we need to save this lady’s job.” Id. at 20:00–20:30. Tarvin praised Harrell for 

listening to his “vision from the citizens’ point of view” and called out other commissioners for not 

doing the same. Id. at 20:45–21:10. He concluded by telling Harrell that “the citizens have your back” 

and imploring the commissioners to “give the lady a chance[.]” Id. at 21:20–23:20. 

After Kelley introduced the Resolution, Mayor Pigatt—noting that the City was in the process 

of starting a national search for a new manager—asked the Commission to defer the vote. Id. at 

1:00:30–1:03:18 (noting that such a deferral would promote “stability and a smooth transition”). The 

mayor insisted that a hasty vote on the Resolution would “continue the tradition of the past” and 

would require the “abrupt transition of the City Manager and appointment of someone whom [the 

City Commission] has no knowledge of.” Id. at 1:03:20–1:03:40. Kelley was unmoved. Sitting just a 

few feet from Harrell, he explained, in passionate terms, why (in his mind) the City could not afford 

to postpone Harrell’s termination:

Let me begin by stating that it’s nothing personal against Ms. Harrell as a person. It 

has to do with what I believe to be best for the City. [When] Ms. Harrell was elevated 

to the City Manager position the first time, I stated then the City needs a professional 

City Manager; we need someone who has managerial experience to guide this City 

through the difficult times. At that time, there were several pressing items for the City, 

including the waste hauler selection recommendation. And while there were several 

options available, this manager [Harrell], in my opinion, waited until the eleventh hour 

and we were forced to engage Miami Dade County . . . . We gave up potential franchise 

fees, our City dump site, and more to the extreme, we had to enter a five-year 

agreement. To me this has caused a disconnect in why we have trash piles all over the 

City and because there was never really clear communication and a process put in 

place. Not only that, but low employee morale, an overall lack of experience in dealing

with many of the day-to-day infrastructure and City needs. This included, in my 

opinion, the relationship and working accord with the financial oversight board, 

because everything we did, in my opinion, appeared to be reactionary rather than 

proactive . . . . To me, there was an unwillingness to tell the Commission “no” with 

explanations when it came to certain things . . . and then, for whatever reason, she left 

the City.

Id. at 1:03:43–1:05:40. 

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Kelley then “fast-forward[ed]” to the City’s decision to “hire[ ] someone months ago”

(Daughtrey), who “put things in place and more importantly put fiscal accountability back into the 

City and began to address critical issues with our infrastructure, our sewer system, and even the audits.” 

Id. at 1:05:45–1:06:10. Kelley complained that, “in an unusual move and without any real notice, or an 

outlined critique, the [previous Commission] fired him, saying ‘the audits weren’t done,’ ‘the budget 

wasn’t passed,’ all of that, even though they had been submitted.” Id. at 1:06:12–1:06:40. And Kelley 

opined: “[W]e had a professional manager. We had one that was doing their job . . . . But our current

manager was brought back and has had several situations occur that, in my opinion, a professional 

manager should address.” Id. at 1:06:50–1:07:54 (emphases added & cleaned up). Specifically, Kelley 

criticized Harrell for (1) failing to “find out from the community what’s really going on,” (2) failing to 

address the City’s “public safety challenges—shootings, murders, and the like, with no 

recommendation to address the increase,” and (3) creating an environment in which “employee morale 

[was at an] all-time low”—in part because “staff [was] fearful to even talk in fear of retribution.” Id. at 

1:08:00–1:09:15. Kelley concluded by saying that “we must move in a different direction.” Id. at 

1:09:50–1:10:03.

Commissioner Burke then jumped in to support the Resolution. He “ran on change,” he said, 

and added that he’s received “comments from employees saying that [Harrell] belittles them, they can’t 

talk to her, and that morale is at an all-time low in our City.” Id. at 1:11:25–1:12:34. 

Commissioner Davis, for his part, opposed the Resolution—saying that “the City oftentimes 

takes one step forward and then two steps back and I refuse to be a part of that process.” Id. at 

1:13:00–1:13:18. Davis thus objected to the Resolution “on timing alone” and opined that “a new 

Commission with four new seats [hasn’t] had the time to adequately address the Manager’s so-called 

frivolous behavior.” Id. at 1:13:20–1:13:41.

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Mayor Pigatt was the last to speak: He disputed some of Kelley’s comments, praised Harrell’s 

work, and (noting that the City was about to launch a nationwide search for a permanent manager) 

worried about what a favorable vote on the Resolution would say to would-be applicants. Id. at 

1:14:00–1:17:00. In his words:

That is why I am completely not in support of any appointments; you will never see 

me support an appointed City Manager at this moment. We must go through a national 

process. And the next City Manager we get here needs to be respected, be certified, 

and that will stay for years to come. I don’t want to go through this process ‘oh we’re 

going to get a new City Manager and now she’s trying to hire another City Manager’; 

that sends the wrong message to anybody who would even apply to work here in the 

City of Opa Locka.

Id. at 1:18:00–1:19:25.4

Mayor Pigatt then proposed to give “one minute” to “anyone” who wanted to respond to the 

Resolution. Id. at 1:19:26–1:19:30. But Kelley, Burke, and Bass forced an up-or-down vote on the 

Resolution by pushing to cut off further discussion. Id. at 1:19:30–1:20:30. The ultimate vote on the 

Resolution went down this way:

Commissioner Burke: Yes

Vice Mayor Davis: No

Commissioner Kelley: Yes

Commissioner Bass: Yes

Mayor Pigatt: No

Id. at 1:20:40–1:21:08; see also Meeting Minutes at 6. Just like that, Harrell had been fired. See 

“Resolution of the City Commission of the City of Opa Locka, Florida, Terminating City Manager, 

4 The City later contracted with a recruiting firm to look for “a permanent City Manager.” City’s SOF 

¶ 36; see also “Resolution 19-9645” [ECF No. 47-8] (the “National City Manager Search Resolution”) 

(allowing the City Commission to retain the recruiting firm to conduct a nationwide search for a new 

manager); Harrell’s Response (not disputing this point). That recruiting firm “conducted a detailed 

national search” and “identified eight finalists” from around the country. City’s SOF ¶¶ 37–38; see also 

City Manager Search Update: Recommended Candidates [ECF No. 47-9] (the “City Manager Search 

Update”) at 1–4; Harrell’s Response (not disputing this point). All eight finalists—including the 

candidate the City ultimately selected—were men. See City Manager Search Update at 1–4; Harrell’s 

Response (not disputing this). 

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Yvette Harrell” [ECF No. 47-6] (the “Executed Resolution”). As this recitation makes plain, the 

subject of Harrell’s sex never came up at the meeting. In any case, Harrell never defended herself 

against Kelley and Burke’s charges—nor did she ever suggest that her termination had something to 

do with her sex. 

With Harrell gone, Kelley immediately moved to re-appoint Daughtrey as Acting City 

Manager. Meeting Video at 1:21:15–1:24:08; see also Meeting Minutes at 6 (“[a] Resolution of the City 

Commission of the City of Opa-Locka, Florida, Appointing an Acting City Manager due to the 

Departure of Yvette Harrell as City Manager” (cleaned up)). When Mayor Pigatt tried to introduce 

two other candidates for the now-vacant position, Kelley objected and had Brown (the City Attorney) 

clarify that “the process that’s been employed by the City Commission since I have been here, and 

that’s been [in place] through eight City Managers” only allows for the consideration of one appointee.

Meeting Video at 1:24:15–1:25:30. Evidently frustrated, Mayor Pigatt cut in: 

I’m extremely disappointed. You can literally feel it in this room how 

disappointed so many people are in this decision. It is a shame that we 

continue to go back to the past. Yes, we voted for change, but this is 

not change. Then again, it is very clear, and it is sad and disappointing, 

that this is our direction at the moment.

Id. at 1:32:00–1:32:40 (cleaned up). The Commission then swore Daughtrey into office—“in the 

middle of [the] City Commission meeting”—so that he could discuss some other, unrelated items. Id. 

at 1:38:00–1:40:00.

D. Harrell’s pre-suit communications with the EEOC

On January 3, 2019, approximately three weeks after her termination, Harrell notified the City

of her intent to sue. See Harrell’s Notice of Intent to Sue (Jan. 3, 2019) [ECF No. 22-1] at 2–4. On 

October 7, 2019, Harrell “filed a dual Charge of Discrimination with the EEOC and the Florida Civil 

Rights Commission alleging that the City violated Title VII.” Am. Compl. ¶ 7; see also Harrell’s 

Discrimination Charge (Oct. 7, 2019) [ECF No. 31-1]. And, on January 31, 2020, the U.S. Department 

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of Justice Civil Rights Division sent Harrell, via certified mail, a “Notice of Right to Sue Within 90 

Days[.]” Harrell’s Right-to-Sue Letter (Jan. 31, 2020) [ECF No. 22-1] at 1. 

But Harrell “does not recall when she received her Right-to-Sue-Letter from the EEOC.” City’s 

SOF ¶¶ 44–45 (emphasis added).

5 In fact, Harrell remembers very little about her correspondence 

with the EEOC. As she explained at her deposition:

Q. After your termination with the City of Opa Locka, did you file a charge of 

discrimination with the [EEOC?]

A. Yes, at some point thereafter.

Q. And you alleged gender discrimination; correct?

A. Yes.

Q. During the pendency of that charge of discrimination, did you communicate with 

the [EEOC] regarding your charge?

A. I don’t recall.

Q. Did you ever inquire with the [EEOC] regarding the status of the [EEOC’s] 

investigation?

A. I may have. I don’t recall.

Q. Do you have a specific recollection of having any written communication with the 

[EEOC] regarding the status of its investigation?

A. Aside from the letter that I received where they – yes, aside from the letter that I 

received, which I presume would be the right to sue letter, or whatever they classify it 

as, I didn’t see any other communication from them.

Q. My next question[ ] was at some point did you request a right [to] sue letter from 

the [EEOC?]

A. Never requested one specifically. It was during my interview it was, I mean I 

interviewed, I said what I said, and then during the course of that conversation I was 

advised that the next step would be a right to sue letter in the event that the review of 

the information merited one.

5 Harrell disputes this assertion in her inadmissible declaration. See Harrell’s Response at 6 (citing 

“Harrell Declaration”). As we’ll soon see, however, her objection is improper and cannot save her 

claim.

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Q. Did you receive a right to sue letter?

A. I believe I did, yes.

Q. Do you recall when you received the right to sue letter?

A. I do not recall.

Video Deposition of Yvette Harrell [ECF No. 47-4] (“Harrell Depo.”) at 3:5–4:17 (emphasis added). 

Even after the City’s lawyer showed her the Right-to-Sue Letter, Harrell couldn’t recall when she’d 

received it:

Q. Have you seen this document before?

A. Yes.

Q. It is dated January 31, 2020; correct?

A. Yes.

Q. And it was sent via certified mail?

A. I don’t recall if it was a certified mail document or not.

Q. That’s fine. Do you have any specific recollection based on this document, when you received the 

right to sue letter?

A. I don’t.

. . . .

Q. All right. Okay. All right. Did you – do you recall receiving the right to sue letter at 

your home?

A. I believe I took it out of the mailbox.

Q. Okay. Do you have any copies of the right to sue letter showing a stamp as to when 

you received the document?

A. I wouldn’t, because it didn’t – I don’t stamp documents when I receive them.

Q. Do you have any other type of recordkeeping system or receipt system that would 

indicate when you received the right to sue letter?

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A. I am sure if I looked for it I could find something that would confirm when I 

received it, but I don’t know when I received it.

Q. When you say you are sure you could find something, are you referencing a 

calendar, a journal, anything like that?

A. It is probably on one of my older calendars.

Q. Do you know what you did with the right to sue letter, if anything, upon receipt of 

the right to sue letter?

A. I am sure I told my attorney that I received it.

Q. Now, again, you don’t have any specific recollection as to when you specifically 

received the right to sue; correct?

A. No, I don’t have any specific recollection as to when I actually received it in my hands, no.

Q. So you don’t know the exact date; correct?

A. No, I do not.

Q. Aside from the January 31, 2020, right to sue letter, have you received any other 

right to sue letters from the [EEOC?]

A. Not to my knowledge, no.

Id. at 5:3–7:21 (emphases added).

Harrell filed this lawsuit on May 7, 2020—97 days after the EEOC mailed her the Right-toSue Letter. See generally Docket; Harrell’s Response (not disputing this).

E. The Procedural History

In her Amended Complaint, Harrell asserted six claims: (I) “Count I – Violation of Title VII 

– Gender Discrimination (42 U.S.C. § 2000E et seq.) (Disparate Treatment)”; (II) “Count II –

Violation [of the] Florida Civil Rights Act (Gender Discrimination) (Disparate Treatment)”; (III) 

“[Count III] Violation of Title VII Retaliation”; (IV) “[Count IV] Florida Civil Rights Act Retaliation”; 

(V) “[Count V] Violation of Florida’s Whistleblower Statute Fla. Stat. § 112.3187”; and (VI) “[Count 

VI] Breach of Contract.” Am. Compl. [ECF No. 22]. “[B]ased on the parties’ stipulation,” we 

dismissed Count VI without prejudice. See Omnibus Order [ECF No. 39] at 2. And, since Harrell 

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never responded to the City’s Motion for Judgment on the Pleadings [ECF No. 31], we dismissed

Counts III, IV, and V by default—again, without prejudice, see Omnibus Order at 3. Harrell never 

moved for reconsideration of that decision, and she hasn’t otherwise insisted that those claims be 

resuscitated. See generally Docket. Those claims are therefore no longer before us. See, e.g., In re Mirant 

Corp. Sec. Litig., 2009 WL 48188, at *15 (N.D. Ga. Jan. 7, 2009) (“Plaintiffs have not moved for 

reconsideration of the Court’s prior dismissal of these claims and the Court has not granted leave to 

Plaintiffs to reassert these claims. Failure to do so renders those claims a ‘nullity[.]’”). 

Today, then, Harrell is proceeding on just two of her original six counts: Count I (Title VII 

sex discrimination) and Count II (FCRA sex discrimination). See Am. Compl. at 9–13. As we’re about 

to see, though, neither count survives summary judgment. 

THE LAW

Summary judgment is appropriate when “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). “By its very terms, 

this standard provides that the mere existence of some alleged factual dispute between the parties will 

not defeat an otherwise properly supported motion for summary judgment; the requirement is that 

there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). 

An issue of fact is “material” if it might affect the outcome of the case under the governing law. Id. at 

248. A dispute about a material fact is “genuine” if the evidence could lead a reasonable jury to find 

for the non-moving party. Id.

“The moving party bears ‘the initial responsibility of informing the . . . court of the basis for 

its motion, and identifying 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.” Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1260 

(11th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “Where the nonmoving 

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party bears the burden of proof at trial, the moving party may discharge this ‘initial responsibility’ by 

showing that there is an absence of evidence to support the nonmoving party’s case or by showing 

that the nonmoving party will be unable to prove its case at trial.” Id. (quoting United States v. Four 

Parcels of Real Property, 941 F.2d 1428, 1437–38 (11th Cir. 1991)). “Once the moving party has properly 

supported its motion for summary judgment, the burden shifts to the non-moving party to come 

forward with specific facts showing that there is a genuine issue for trial.” Bailey v. Allgas, Inc., 284 F.3d 

1237, 1243 (11th Cir. 2002) (emphasis in original). 

When ruling on a motion for summary judgment, the Court “need consider only the cited 

materials, but it may consider other materials in the record.” FED. R. CIV. P. 56(c)(3); see also Green v. 

Northport, 599 F. App’x 894, 895 (11th Cir. 2015) (“The district court could consider the record as a 

whole to determine the undisputed facts on summary judgment.”); HRCC, Ltd. v. Hard Rock Cafe Int’l 

(USA), Inc., 703 F. App’x 814, 817 (11th Cir. 2017) (noting that a “court may decide a motion for 

summary judgment without undertaking an independent search of the record” (quoting FED. R. CIV.

P. 56 advisory committee’s note to 2010 amendment)). The “evidence of the non-movant is to be 

believed, and all justifiable inferences are to be drawn in his favor.” Allen v. Tyson Foods, Inc., 121 F.3d 

642, 646 (11th Cir. 1997) (cleaned up). But “[a] mere ‘scintilla’ of evidence supporting the opposing

party’s position will not suffice; there must be enough of a showing that the jury could reasonably find 

for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 242).

In sum, “[i]f the record presents factual issues, the Court must not decide them; it must deny 

the motion [for summary judgment] and proceed to trial.” Whelan v. Royal Caribbean Cruises Ltd., 2013 

WL 5583970, at *2 (S.D. Fla. Aug. 14, 2013) (cleaned up). On the other hand, if “the nonmoving party 

has failed to make a sufficient showing on an essential element of her case with respect to which she 

has the burden of proof,” then “the moving party is entitled to judgment as a matter of law.” Celotex, 

477 U.S. at 323; see also Lima v. Fla. Dep’t of Children & Families, 627 F. App’x 782, 785–86 (11th Cir. 

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2015) (“If no reasonable jury could return a verdict in favor of the nonmoving party, there is no 

genuine issue of material fact and summary judgment will be granted.” (cleaned up).

ANALYSIS

I. Timeliness

We begin with the City’s contention that Harrell’s Title VII claim is untimely. See MSJ at 2 ¶ 4 

(“The City is entitled to judgment on Harrell’s Count I Title VII gender discrimination claim because 

Harrell failed to timely file suit on that claim following receipt of her right-to-sue letter.”). 

It’s axiomatic that “an employee must exhaust administrative remedies before filing a 

complaint of discrimination under Title VII of the Civil Rights Act of 1964.” Stamper v. Duval Cnty.

Sch. Bd., 863 F.3d 1336, 1340 (11th Cir. 2017) (cleaned up). “The first step down the path to exhaustion 

is filing a timely charge of discrimination with the EEOC.” Wilkerson v. Grinnell Corp., 270 F.3d 1314, 

1317 (11th Cir. 2001). “Under Title VII, in cases where the EEOC does not file suit or obtain a 

conciliation agreement, the EEOC ‘shall so notify the person aggrieved and within 90 days after the 

giving of such notice a civil action may be brought against the respondent named in the charge . . . by 

the person claiming to be aggrieved.’” Zillyette v. Cap. One Fin. Corp., 179 F.3d 1337, 1339 (11th Cir. 

1999) (quoting 42 U.S.C. § 2000e–5(f)(1) (emphasis added)). The plaintiff bears the “burden of 

establishing that he filed his Complaint within ninety days of his receipt of the EEOC’s right-to-sue 

letter.” Green v. Union Foundry Co., 281 F.3d 1229, 1234 (11th Cir. 2002) (cleaned up). 

The 90-day limitation period begins to run “upon notification of the aggrieved party,” which 

occurs “upon actual receipt of the suit letter[.]” Zillyette, 179 F.3d at 1339. The Eleventh Circuit, 

however, does not “employ a rule determining when a complainant has [actually] received notice of the 

right to sue. Rather, we have imposed upon complainants some minimum responsibility for an orderly 

and expeditious resolution of their claims, and we have expressed concern over enabling complainants 

to enjoy a manipulable open-ended time extension which could render the statutory minimum 

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meaningless.” Kerr v. McDonald’s Corp., 427 F.3d 947, 952 (11th Cir. 2005) (cleaned up). The upshot is 

that our Circuit “has continued to approach these issues on a case-by-case basis to fashion a fair and 

reasonable rule for the circumstances of each case[.]” Zillyette, 179 F.3d at 1341 (cleaned up).

“When the date of receipt [of a right-to-sue letter] is in dispute, we ordinarily presume that a 

mailing is received three days after its issuance.” Robbins v. Vonage Bus., Inc., 819 F. App’x 863, 867 

(11th Cir. 2020) (cleaned up); see also Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 148 n.1 (1984) 

(same). To rebut this presumption, the plaintiff must “show that receipt of the notice was delayed 

through no fault of [her] own,” such as by showing that she “advised the EEOC of address changes 

or took other reasonable steps to ensure delivery of the notice to [her] current address.” Robbins, 918 

F. App’x at 867 (cleaned up). A plaintiff fails to meet her burden if she simply testifies that she “could 

not remember” the date on which she received the right-to-sue letter, or if she fails to “otherwise 

rebut the fact that [more than 90 days] elapsed from the date of mailing to the date of filing.” Green, 

281 F.3d at 1234.

In our case, it’s undisputed: (1) that the EEOC mailed Harrell’s Right-to-Sue Letter on January 

31, 2020, see Harrell’s Right-to-Sue Letter; and (2) that Harrell filed this lawsuit on May 7, 2020, see 

Docket—97 days later. Since “the date of receipt” is “in dispute,” we “presume” that Harrell received 

the Right-to-Sue Letter “three days after” it was issued. Robbins, 819 F. App’x at 867. That presumption 

doesn’t help Harrell here, though, because she missed the window by seven days. So, even if we gave 

her those three extra days, her filing would still be four days late. 

As we’ve explained, this three-day presumption doesn’t apply only “if the plaintiff can show 

that receipt of the notice was delayed through no fault of [her] own,” such as by showing that she 

“advised the EEOC of address changes or took other reasonable steps to ensure delivery of the notice 

to [her] current address.” Robbins, 819 F. App’x at 867 (cleaned up). Harrell never even argues that her 

notice was delayed through no fault of her own. See generally Harrell’s Response. She doesn’t, for 

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instance, say that she “advised the EEOC of address changes or that she took other reasonable steps 

to ensure delivery of the notice to her current address.” Harrell has thus forfeited any such arguments. 

See, e.g., United States v. Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (en banc) (holding that the “failure 

to raise an issue in an initial brief . . . should be treated as a forfeiture of the issue, and therefore the 

issue may be raised by the court sua sponte [only] in extraordinary circumstances”); Access Now, Inc. v. 

Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“In the first place, the law is by now well settled 

in this Circuit that a legal claim or argument that has not been briefed before the court is deemed 

abandoned and its merits will not be addressed.”).

Notably, a plaintiff fails to meet her burden if she does nothing more than testify that she 

“could not remember” the date on which she received the right-to-sue letter, or if she fails to 

“otherwise rebut the fact that [more than 90 days] elapsed from the date of mailing to the date of 

filing.” Green, 281 F.3d at 1234. And that’s exactly what Harrell has done here. As we’ve recounted, 

when pressed about the date on which she received the letter, Harrell twice said that she didn’t recall. 

See Harrell Depo. at 4:13–17 (“Q: Did you receive a right to sue letter? A: I believe I did, yes. Q: Do 

you recall when you received the right to sue letter? A: I do not recall.”); id. at 7:10–17 (“Q. Now, 

again, you don’t have any specific recollection as to when you specifically received the right to sue; 

correct? A. No, I don’t have any specific recollection as to when I actually received it in my hands, no. 

Q. So you don’t know the exact date; correct? A. No, I do not.”). That’s really the end of that. 

Courts in our Circuit routinely find Title VII claims untimely in similar circumstances. See, e.g.,

Waring v. Miami-Dade Cnty., 172 F. Supp. 3d 1343, 1346 (S.D. Fla. Mar. 23, 2016) (Ungaro, J.) (granting 

summary judgment on a Title VII claim because, “[i]n this case, even when viewing the record 

evidence in the light most favorable to [p]laintiff, the only reasonable conclusion that can be drawn 

from the record is that [p]laintiff failed to file her lawsuit within the 90-day period required by law”);

Valdez v. Miami-Dade Cnty., 2020 WL 2113499, at *4 (S.D. Fla. May 4, 2020) (Scola, J.) (finding a Title 

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VII claim untimely and granting summary judgment); Carter v. Brown Mackie Coll. Miami & Educ. Mgmt. 

Corp., 2016 WL 6496632, at *1 (S.D. Fla. Feb. 4, 2016) (Cohn, J.) (dismissing a Title VII claim as timebarred because a plaintiff filed her lawsuit 97 days after receiving her right-to-sue letter). 

And the Eleventh Circuit regularly affirms these decisions. See, e.g., Green, 281 F.3d at 1234 

(affirming summary judgment because the plaintiff filed her complaint 97 days after receiving her 

right-to-sue letter); Stamper, 863 F.3d at 1340–42 (affirming summary judgment after holding that a 

second notice of the plaintiff’s right to sue—issued after her original limitations period expired—

didn’t revive the 90-day period);6 Law v. Hercules, Inc., 713 F.2d 691, 693 (11th Cir. 1983) (affirming 

summary judgment on an untimely Title VII claim); Bell v. Eagle Motor Lines, 693 F.2d 1086, 1087 (11th 

Cir. 1982) (same).

Against all this, Harrell points to only one piece of evidence—the declaration she appended 

to her Response. See Response at 6 (“Plaintiff’s Right to sue letter was dated and mailed to the Plaintiff 

on January 31, 2020. Plaintiff received the letter on February 8, 2020. She immediately notified her 

attorney of the receipt of the Right to Sue Letter via text message. Harrell Declaration. Plaintiff’s 

complaint was filed on May 7, 2020. The complaint was filed on the 90th day which is allowed under 

the statute.”). But there are two problems with this argument. First, as we’ve explained, we won’t

consider a declaration that hasn’t been signed or dated. See supra note 2. Second, a party cannot survive 

summary judgment by producing, in her opposition brief, a declaration that (directly) contradicts the 

things she herself said, under oath, at her deposition—at least when she does so without explanation.

7

6 Stamper devolved into a detailed (and interesting) discussion of equitable-tolling principles. For 

reasons that aren’t relevant here, the court ultimately concluded that equitable tolling didn’t apply in 

that case. But we needn’t delve into questions of equitable tolling today because Harrell never suggests 

that we should. See Case v. Eslinger, 555 F.3d 1317, 1329 (11th Cir. 2009) (“A party cannot readily 

complain about the entry of a summary judgment order that did not consider an argument they chose 

not to develop for the district court at the time of the summary judgment motions.” (cleaned up)). 7 We add this caveat because we might have come out differently if Harrell had given us some 

explanation for her resurrected recollection. She doesn’t, for instance, say that she checked her 

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See, e.g., Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1306 (11th Cir. 2016) (“The Eleventh Circuit, 

in limited circumstances, allows a court to disregard an affidavit as a matter of law when, without 

explanation, it flatly contradicts his or her own prior deposition testimony for the transparent purpose 

of creating a genuine issue of fact where none existed previously.” (cleaned up)); Van T. Junkins & 

Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984) (“When a party has given clear answers 

to unambiguous questions which negate the existence of any genuine issue of material fact, that party 

cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, 

previously given clear testimony.”). 

In very similar circumstances, in fact, the Eleventh Circuit had this to say about a plaintiff 

who, after testifying that she didn’t remember when she received her right-to-sue letter, tried to save 

her Title VII claim with a contradictory affidavit:

As the district court noted, Bryant’s affidavit, in which she stated that 

she remembered the exact date on which she received the right-to-sue 

letter, flatly contradicted her earlier deposition testimony, in which she 

stated that she did not remember the date. The affidavit, filed after her 

deposition had been taken and discovery had closed, supplied a 

specific fact that Bryant denied knowledge of when questioned on 

deposition. Notably, the affidavit presented no valid reason for 

Bryant’s subsequent recollection that she received the letter on the 

specific date, December 5. For example, while Bryant was entitled to 

refresh her memory, her affidavit did not state that her recollection had 

been refreshed. True, her attorney argued that her recollection had 

been refreshed, but counsel’s argument is not evidence. In sum, we 

affirm the district court’s decision striking the affidavit.

calendar or her text messages and found there some evidence—not available to her during her 

deposition—that jogged her memory. And, it goes without saying, she doesn’t provide us with a 

picture or other reproduction of that memory-inducing calendar or text message. We also find it telling 

that she shows us no declaration, affidavit, or deposition testimony from her lawyer—the one who 

allegedly received the text message on February 8, 2020—to support her claim that she sent him the 

message on that day. If Harrell’s statement were true, in other words, it could only have become true by 

virtue of some piece of evidence that triggered a different recollection than the one she had at her 

deposition. And the problem we have here is that Harrell decided, despite months of discovery, not 

to offer that piece of evidence—whatever it might be—nor (even) to tell us what it is. 

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Bryant, 428 F. App’x at 897 (cleaned up). Our case is on all fours. Harrell was clear at her deposition 

that she didn’t remember when she received the Right-to-Sue Letter. Now, after discovery has closed—

and trying to save her claim from summary judgment—she’s suddenly produced an (unsigned) 

declaration, in which she purports to remember the precise day on which the letter arrived in her 

mailbox—all without explaining how her recollection was refreshed. We aren’t fooled. Indeed, in two 

critical ways, Harrell’s attempt to resurrect her memory is even weaker than Bryant’s was. One, Harrell’s 

declaration is unsigned and undated—so, unlike the affidavit in Bryant, it isn’t evidence at all. Two, 

neither Harrell nor her lawyer even attempted to argue that her recollection had somehow been 

refreshed. Count I is time-barred. 

But that still leaves us with Harrell’s FCRA claim (Count II). The FCRA is “modeled after 

Title VII,” which means that “claims brought under [the FCRA] are analyzed under the same 

framework” that governs Title VII claims. Alvarez v. Royal Atlanta Dev., Inc., 610 F.3d 1253, 1271 (11th 

Cir. 2010). In other words, we have to go through the same Title VII analysis for Count II anyway. 

So, as we’ll see, even if Harrell’s Title VII claim were timely, it would still fail on the merits. 

II. The Merits

“Title VII prohibits an employer from ‘discriminat[ing] 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.’” Schoenfeld v. Babbit, 168 F.3d 1257, 1266 (11th Cir. 1999) 

(quoting 42 U.S.C. § 2000e-2(a)(1)). The FCRA is Title VII’s state-law equivalent and, for our 

purposes, prohibits the same kinds of discriminatory conduct. See FLA. STAT. § 760.10(1)(a) (“It is an 

unlawful employment practice for an employer . . . [t]o discharge or to fail or refuse to hire any 

individual, or otherwise to discriminate against any individual with respect to compensation, terms, 

conditions, or privileges of employment, because of such individual’s race, color, religion, sex, 

pregnancy, national origin, age, handicap, or marital status.”). 

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“A plaintiff in a Title VII action may attempt to show discrimination by offering either direct 

or circumstantial evidence.” Schoenfeld, 168 F.3d at 1266 (cleaned up). “A plaintiff alleging a claim of 

disparate treatment must establish that the employer intended to discriminate against the protected 

group.” Armstrong v. Flowers Hosp., Inc., 33 F.3d 1308, 1313 (11th Cir. 1994) (emphasis added); see also 

Denney v. City of Albany, 247 F.3d 1172, 1182 (11th Cir. 2001) (“Disparate treatment claims require 

proof of discriminatory intent either through direct or circumstantial evidence.” (cleaned up)). Harrell

fails to offer either direct or circumstantial evidence of discrimination here.

A. Direct Evidence

“Direct evidence is evidence which, if believed, proves the existence of the fact in issue without 

inference or presumption.” Jones v. Bessemer Carraway Med. Ctr., 151 F.3d 1321, 1323 n.11 (11th Cir. 

1998); see also EEOC v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir. 2000) (same). Direct 

evidence, in other words, is “powerful evidence capable of making out a prima facie case essentially 

by itself.” Jones, 151 F.3d at 1323 n.11. “[O]nly the most blatant remarks, whose intent could be nothing 

other than to discriminate on the protected classification are direct evidence of discrimination.” Wills 

v. Walmart Associates, Inc., 2022 WL 845183, at *24 (S.D. Fla. Mar. 22, 2022) (Altman, J.) (quoting Scott 

v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1227 (11th Cir. 2002)). Direct evidence would include, 

for instance, “a frank admission from a manager that he refused to hire an applicant because he was 

black or because she was female.” Schweers v. Best Buy, Inc., 132 F. App’x 322, 324 (11th Cir. 2005) 

(quoting Cooper v. Southern Co., 390 F.3d 695, 724 n.15 (11th Cir. 2004)); see also Earley v. Champion Int’l 

Corp., 907 F.2d 1077, 1081 (11th Cir. 1990) (“One example of direct evidence would be a management 

memorandum saying, ‘Fire Earley—he is too old.’”).

Harrell never argues that she’s satisfied this rigorous standard here, see generally Harrell’s 

Response—which is reason enough to treat any such claim as forfeited, see Campbell, 26 F.4th at 873 

(holding that the “failure to raise an issue in an initial brief . . . should be treated as a forfeiture of the 

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issue, and therefore the issue may be raised by the court sua sponte [only] in extraordinary 

circumstances”).

Nor would any such argument have been viable. To understand why, let’s go through the 

proof she cites in her Response—starting with her January 12, 2017 Email to City Attorney Vincent 

Brown, which, for three reasons, cannot supply direct evidence of discrimination. 

First, the statements Harrell attributes to Commissioner Kelley in that email “are not a clear 

indication of discriminatory animus.” Bass v. Lockheed Martin Corp., 287 F. App’x 808, 811 (11th Cir. 

2008). Harrell didn’t, for instance, claim that Kelley said anything like: “Fire Harrell—she’s a woman.”

Instead, she (for the most part) averred that she’d “endured consistent and persistent ridicule along 

with statements and actions purposed [sic] to humiliate and belittle” her and alleged that Kelley had 

made “demeaning and offensive comments”; that he’d “undermine[d]” her authority; and that he’d 

“lie[d]” about her to others. See Harrell’s January 12, 2017 Email. Kelley (Harrell claimed) also 

“accused [her] of actions committed by former City Managers and employees”; “yell[ed] and gesture[d] 

at [her] in front of City staff and members of the Public”; and “went on a tirade about wanting the 

‘same treatment as the Mayor,’ while [Harrell] stood there embarrassed and once again humiliated.” 

Id. While these comments “may be inappropriate and condescending,” they “clearly fall[] short of the 

type of evidence that this Circuit has recognized as direct evidence of discrimination.” Carter v. City of 

Miami, 870 F.2d 578, 582 (11th Cir. 1989) (cleaned up). 

Courts in this Circuit routinely refuse to “give great weight . . . to language that is, at best, only 

circumstantial evidence” because, to do otherwise, would be to “blur[] the important distinction 

between circumstantial evidence and direct evidence for prima facie cases.” Jones, 151 F.3d at 1323 

n.11. Indeed, faced with far more damning evidence, the Eleventh Circuit has repeatedly cast aside 

claims of direct discrimination. See, e.g., Walker v. St. Joseph’s/Candler Health Sys., Inc., 506 F. App’x 886, 

888 (11th Cir. 2013) (no direct evidence of discrimination, even where the decisionmaker told the 

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plaintiff she “should go back to the night shift” to “be with her own kind,” because “the ‘your own 

kind’ statement does not prove race or gender discrimination without inference”); Carter v. Three Springs 

Residential Treatment, 132 F.3d 635, 642 (11th Cir. 1998) (no direct evidence of discrimination, even 

where the decisionmaker admitted that she had “a bias against blacks” and that “she found that they 

were difficult for her to trust or get along with,” because those statements “could have been expressing 

a desire to get past such prejudices”).

Second, where the email does approach the topic of sex discrimination, it does so—not with 

Kelley’s own words—but with Harrell’s speculation about what Kelley might have been thinking. As 

we’ve noted, in one part of the email, Harrell wrote: “I will no longer allow the fact that I am female 

and not [Kelley’s] ‘choice’ for City Manager to be an accepted reason for mistreatment and 

harassment.” Harrell’s January 12, 2017 Email. In saying so, however, Harrell never explained what

Kelley might have said (or done) to suggest, however obliquely, that he was antagonizing, demeaning, 

and humiliating her because she was a woman—rather than because he believed her to be incompetent, 

uncertified, or otherwise unqualified. Harrell thus hasn’t done enough. See Carter, 870 F.2d at 585 

(noting that the plaintiff’s “subjective conclusion[s]”, without supporting evidence, are insufficient to 

raise an inference of intentional discrimination); Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th 

Cir. 2005) (“[U]nsupported speculation does not meet a party’s burden of producing some defense to 

a summary judgment motion. Speculation does not create a genuine issue of fact; instead, it creates a 

false issue, the demolition of which is a primary goal of summary judgment.” (cleaned up)).

Third, the acrimony she referenced in that January 12, 2017 Email was simply too attenuated 

from—and, if we’re being realistic, had absolutely nothing to do with—her termination. In that email, 

after all, Harrell was complaining about things that happened in January of 2017. See Harrell’s January 

12, 2017 Email. But the termination decision she’s suing about happened in December of 2018, see 

the Executed Resolution—almost two years later. By then, the City Commission was composed of 

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people who weren’t even around during Harrell’s first stint as City Manager—when the January 12,

2017 Email was sent. The 2017 email, in short, was unrelated to—and entirely untethered from—the 

2019 termination. It thus cannot supply Harrell with the direct evidence she needs. See, e.g., Morgan v. 

Kalka & Baer LLC, 750 F. App’x 784, 788 (11th Cir. 2018) (no direct evidence of discrimination, even 

where the named partner of the plaintiff’s firm said he did not like “Black people” and “that’s why 

they’re in the back of the office,” because “these remarks and others like them were unrelated to the 

decisionmaking process”); Williamson v. Adventist Health Sys./Sunbelt, Inc., 372 F. App’x 936, 940 (11th 

Cir. 2010) (“A biased statement, separate in time from the employment decision under challenge, is 

not direct evidence of discrimination.” (cleaned up)); Scott, 295 F.3d at 1227 (no direct evidence of 

discrimination, even where supervisor said “[w]e’ll burn [the plaintiff’s] black ass,” because that 

statement was “too remote” and “was not directly related to the subject of [the plaintiff’s] 

termination”); Carter, 132 F.3d at 642 (no direct evidence of discrimination, even where the 

decisionmaker admitted that she had “a bias against blacks” and that “she found that they were 

difficult for her to trust or get along with,” because “the statement does not relate directly to the 

[challenged employment] decision”).

And nothing that happened at the December 12, 2018 Commission meeting—where Harrell 

was fired—could be construed as direct evidence of discrimination. To the contrary, as we’ve said, 

Harrell’s sex was never mentioned at all. Commissioner Kelley, in fact, opened his remarks “by stating 

that it’s nothing personal against Ms. Harrell as a person.” Meeting Video at 1:03:43. He then 

proceeded to lambast Harrell—not for her sex—but for her inability to (1) “find out from the 

community what’s really going on,” (2) address some critical “public safety challenges—shootings, 

murders, and the like, with no recommendation to address the increase,” (3) raise “employee morale,” 

which (Kelley claimed) was at an “all-time low,” and (4) deal with the reality that “staff [was] fearful 

to even talk in fear of retribution.” Id. at 1:08:00–1:09:15. Commissioner Burke likewise said nothing 

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about Harrell’s sex. He explained that he “ran on change” and alleged that he’d received “comments 

from employees saying that she belittles them, they can’t talk to her, and that morale is at an all-time 

low in our City.” Id. at 1:11:25–1:12:34. And Commissioner Bass, as we’ve seen, said nothing at all.

She did, however, submit a declaration in our case, in which she averred that Harrell’s “negativity 

regarding the City and the state oversight board formed the basis for [her] decision to vote to terminate 

Harrell’s employment.” Bass Decl. ¶ 14. Again, nothing about sex.

Finally, we have the November 14, 2018 Letter and the November 26, 2018 Email. In the 

former, Harrell alleged that “[a]t least one member of the sitting Commission”: (1) “required Staff to 

perform tasks for private citizens during their City work day”; (2) “used [his] position to directly 

influence and interfere with personnel decisions that are reserved for the Manager, namely the 

reinstatement of terminated personnel”; and (3) “used [his] position and influence to create a working 

environment not conducive to productivity because of their direct ridicule and criticism towards City 

Staff.” Harrell’s November 14, 2018 Letter. In the latter, Harrell identified Kelley as the “one member 

of the sitting Commission” she was complaining about. See Harrell’s November 26, 2018 Email.

Neither even purported to accuse Commissioner Kelley (or anyone else) of sex discrimination. 

Because none of Harrell’s evidence establishes—without inference or presumption—that she 

was terminated for a discriminatory purpose, it cannot serve as direct evidence of discrimination.

B. Circumstantial Evidence

Circumstantial evidence “suggests—but does not prove—a discriminatory motive.” Burrell v. Bd. 

of Trustees of Ga. Military Coll., 125 F.3d 1390, 1393–94 (11th Cir. 1997); see also Gonzalez v. Fla. Dep’t of 

Mgmt. Servs., 683 F. App’x 738, 742 (11th Cir. 2017) (“If the alleged statement suggests, but does not 

prove, a discriminatory motive, then it is circumstantial evidence.” (cleaned up)). “Discrimination 

claims brought under Title VII . . . are typically categorized as either mixed-motive or single-motive 

claims.” Quigg v. Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1235 (11th Cir. 2016). In a single-motive case—

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where the employee alleges that her sex was the sole factor motivating the adverse action—“[a] plaintiff 

can establish intentional discrimination through circumstantial evidence in two ways.” Dukes v. Shelby 

Cnty. Bd. of Educ., 762 F. App’x 1007, 1011 (11th Cir. 2019). First, she may “satisfy[ ] the burdenshifting framework set out in McDonnell Douglas.” Lewis v. City of Union City, 918 F.3d 1213, 1220 (11th 

Cir. 2019) (en banc).8 Second, she can “demonstrate a ‘convincing mosaic’ of circumstantial evidence 

that warrants an inference of intentional discrimination.”9 Id. at 1221 n.6 (quoting Smith v. LockheedMartin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)). By contrast, in mixed-motive cases—in which the 

employee avers that her sex was one of several factors motivating the adverse action—“[a]n employee 

challenging a decision made by a board can succeed . . . if she demonstrates that discriminatory input, 

such as sex or gender-based bias, factored into the board’s decisional process.” Quigg, 814 F.3d at 1241 

(emphasis added & cleaned up). Although Harrell appears to invoke and apply the standards for both 

single- and mixed-motive claims in her Response, see Harrell’s Response at 11–12 (citing both 

McDonnell Douglas and Quigg), her claims fail under either framework. 

a. McDonnell Douglas 

Harrell’s McDonell Douglas claim falters at every step. “McDonnell Douglas established a threestep process for analyzing discrimination claims[.]” Ehrhardt v. Haddad Rest. Grp., Inc., 443 F. App’x 

452, 455 (11th Cir. 2011). First, “the plaintiff must . . . offer evidence sufficient to establish a prima facie

case of discrimination[.]” Vira v. Crowley Liner Servs., Inc., 723 F. App’x 888, 892 (11th Cir. 2018). Second, 

8 The test takes its name from the Supreme Court’s decision in McDonnell Douglas Corp. v. Green, 411 

U.S. 792, 802–04 (1973). 

9 Harrell never argues that she can “present a convincing mosaic of circumstantial evidence[.]” Dukes, 

762 F. App’x at 1011–12 (cleaned up). She’s thus forfeited any such argument. See Access Now, 385 

F.3d at 1330 (“In the first place, the law is by now well settled in this Circuit that a legal claim or 

argument that has not been briefed before the court is deemed abandoned and its merits will not be 

addressed.”); Versfelt v. Sanza Food Serv., LLC, 2022 WL 479881, at *12 n.10 (S.D. Fla. Feb. 16, 2022) 

(Altman, J.) (concluding that a plaintiff alleging age discrimination under McDonnell Douglas—having 

failed to advance a convincing-mosaic claim—had forfeited “any such [mosaic] claim he might’ve 

had”).

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“[o]nce a prima facie case is made, the burden shifts to the defendant to articulate a legitimate, 

nondiscriminatory reason for the adverse employment action.” Id. Third, “[i]f the employer meets its 

burden, the plaintiff must then show that the employer’s stated reason is pretext for discrimination[.]” 

Id. We consider each step below. 

i. Prima facie Case 

Under the first step of the McDonnell Douglas burden-shifting framework, the employee “bears 

the initial burden of establishing a prima facie case of discrimination by showing (1) that she belongs to 

a protected class, (2) that she was subjected to an adverse employment action, (3) that she was qualified 

to perform the job in question, and (4) that her employer treated ‘similarly situated’ employees outside 

her class more favorably.” Lewis, 918 F.3d at 1220–21.

10

The parties agree that Harrell has satisfied the first and third elements of her prima facie case. 

See MSJ at 4–7. Nor could the City have suggested otherwise: Harrell, after all, is a woman, and she 

10 Harrell quotes this same standard. See Harrell’s Response at 6 (“To establish a claim under 

Title VII and FCRA, a plaintiff must prove that: (1) she is a member of a protected class, (2) she was 

qualified for the position, (3) she suffered an adverse employment action, and (4) she was treated less 

favorably than a similarly situated individual outside of her protected class.”). Admittedly, the Eleventh 

Circuit has stated the test somewhat differently in other cases. Sometimes it says that an employee can 

make out a prima facie case by showing that “(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 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) (emphasis added). The italicized portion of that text is missing from the Eleventh 

Circuit’s en banc ruling in Lewis and from many of the court’s other enunciations of the governing test. 

See Hanford v. Geo Grp., Inc., 345 F. App’x 399, 405 n.7 (11th Cir. 2009) (recognizing that the Eleventh 

Circuit has stated the McDonnell Douglas test both with and without the “replacement” prong). 

But, for two reasons, Harrell’s claim fails even if we assume that a plaintiff can make out a prima 

facie case simply by showing that she was replaced by a person outside her protected class. First, she never 

makes this argument—so, she’s probably forfeited it. See Case, 555 F.3d at 1329 (“A party cannot 

readily complain about the entry of a summary judgment order that did not consider an argument they 

chose not to develop for the district court at the time of the summary judgment motions.” (cleaned 

up)). Second, as we’re about to see, whatever happens with this fourth element, Harrell plainly fails the 

second element of her prima facie test. 

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was fired. The City does, however, contend that Harrell failed to meet the second and fourth 

elements—and we agree.

Let’s start with the second element—qualifications: “An individual is ‘qualified’ for a position, 

for purposes of employment discrimination law, if he meets the criteria that the employer has specified 

for the position.” Wright v. Southland Corp., 187 F.3d 1287, 1300 n.16 (11th Cir. 1999). “[T]o 

demonstrate that he was qualified for the position, a Title VII plaintiff need only show that he or she 

satisfied an employer’s objective qualifications.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 769 

(11th Cir. 2005); see also Anderson v. Embarq/Sprint, 379 F. App’x 924, 928–29 (11th Cir. 2010) (“As to 

the second element—that he was qualified for the job—Anderson must show only that he satisfied 

Embarq’s objective employment qualifications.” (cleaned up)).

Harrell has failed to satisfy this element. Indeed, despite having thirteen months to gather 

discovery and develop the factual record, Harrell hasn’t given us any evidence of what the City’s 

“objective qualifications” were. She provides no testimony; she offers no job posting; and she appends 

no document that would elucidate for us what the City was looking for, what the job entailed, or 

(even) what she herself brought to the table. She seems, rather, to assume that she was qualified by 

virtue only of the fact that the City hired her for the role in the first instance. But, if that were enough, 

then every employee in America would automatically satisfy this second element simply by showing 

that she was initially hired for the position from which she was later terminated. This cannot be the 

law—and, fortunately, it isn’t. See Anderson, 379 F. App’x at 928–29 (“Anderson has not shown he was 

qualified for his job [before he was fired]: he could not lift up to 70 pounds frequently and 

continuously, he suffered from neurological issues that caused bowel problems, he expressed concern 

regarding his ability to operate a forklift, and, above all, he had not been cleared by a physical to return 

to work.”); see also Aponte v. Brown & Brown of Fla., Inc., 2019 WL 12536011, at *9 (M.D. Fla. Mar. 1, 

2019) (finding that a plaintiff who’d been fired hadn’t shown that he was qualified for the position); 

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Lowe v. Fla. Hosp. Med. Grp., Inc., 2016 WL 9503734, at *3 (M.D. Fla. Sept. 6, 2016) (“Plaintiff has not 

shown that she was qualified for the position she held with Defendant at the time she was terminated 

. . . . Plaintiff testified that at no point during her employment was she certified as required . . . or in 

accordance with her acknowledgements . . . . Therefore, because Plaintiff never held a valid 

certification during the time she was employed by Defendant, she was not qualified and her claims 

must fail.” (cleaned up)).

Harrell—as we’ve hinted—also fails the fourth element of her prima facie case. “To meet the 

fourth prong, a comparator must be ‘similarly situated in all material respects,’ meaning that the 

plaintiff and comparators are ‘sufficiently similar, in an objective sense, that they cannot reasonably 

be distinguished.’” Earle v. Birmingham Bd. of Educ., 843 F. App’x 164, 166 (11th Cir. 2021) (quoting 

Lewis, 918 F.3d at 1228). A similarly-situated comparator “will ordinarily (1) have engaged in the same 

basic conduct as the plaintiff; (2) have been subject to the same employment policy, guideline, or rule 

as the plaintiff; (3) have been under the jurisdiction of the same supervisor as the plaintiff; (4) and 

share the plaintiff’s employment history.” Id. These considerations “leave[ ] employers the necessary 

breathing space to make appropriate business judgments.” Lewis, 918 F.3d at 1227–28. 

For three reasons, Harrell fails to satisfy this element. First, although Harrell claims that 

Daughtrey was similarly situated to her, she fails to give us any evidence to substantiate this allegation. 

She tells us nothing, for instance, about Daughtrey’s employment history, see generally Harrell’s

Response—aside from the fact that he, too, was once fired by the City Commission, see id. at 7 (“The 

current male City manager was unable and could not perform the duties that were being asked of him 

at the time of my rehire. His name was Newall Daughtrey and ironically after the termination of the 

Plaintiff, the City voted to rehire him as the City Manager.”). This fact, though, is deeply unhelpful to 

Harrell because it tends to confirm what the record has already shown us—which is that the City 

Commission has fired many managers over the years, women and men. The City may well be 

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discriminating against these managers on the basis of something—but that something doesn’t appear to 

be sex. And, while she does tell us (in a footnote) that Daughtrey (like Harrell) “had complained in a 

memo to the City prior to his termination, that millions of dollars were being loss due to unpaid water 

bills by various local businesses,” id. at 8 n.3 (errors in original), she never gives us any evidence to back 

this up. In fact, the footnote in which this claim appears contains no citation at all. The problem with 

all this, of course, is that, at summary judgment, a plaintiff must produce evidence to support her 

contention that the comparator is, as the Eleventh Circuit requires, similarly situated in all material 

respects. See Earle, 843 F. App’x at 166 (“A plaintiff’s failure to produce evidence showing that a single 

similarly situated employee was treated more favorably will preclude the establishment of a prima facie

case.” (cleaned up)); see also Jones v. Unity Behav. Health, LLC, 2021 WL 5495578, at *6 (11th Cir. Nov. 

23, 2021) (finding no prima facie case where “the evidence fails to show [the comparator] . . . had a similar 

history” (emphasis added & cleaned up).

Second, Harrell fails to show that she and Daughtrey “engaged in the same basic conduct[.]”

Earle, 843 F. App’x at 166; see also, e.g., Holmes v. City of Ft. Pierce, 2022 WL 247976, at *6 (11th Cir. Jan. 

27, 2022) (finding that the plaintiff failed to make out a prima facie case because the “alleged 

comparators did not engage in the same basic misconduct”). At Harrell’s termination meeting, Kelley 

chastised her for (1) failing to “find out from the community what’s really going on,” (2) failing to 

address the City’s “public safety challenges—shootings, murders, and the like, with no 

recommendation to address the increase,” and (3) creating an environment in which “employee morale 

[was at an] all-time low”—in part because “staff [was] fearful to even talk in fear of retribution.” 

Meeting Video at 1:08:00–1:09:15. Harrell has failed to submit any evidence for the proposition that 

Daughtrey engaged in similar misconduct.11

11 Harrell (it’s true) does aver that, during Daughtrey’s first stint as manager, the City “was not 

performing under the terms of the decree issued by the state oversight board and was mired in 

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Third, even if we ignore the lack of evidence, Daughtrey can’t be a viable comparator because 

he didn’t actually replace Harrell. To the contrary, the evidence is undisputed that Daughtrey was 

brought back as an interim manager once Harrell was fired. In this role, he was asked only to perform 

the manager’s duties while the City engaged in a nationwide search for Harrell’s replacement. That 

replacement, of course, was John Pate—who took over for Daughtrey as City Manager after Harrell’s 

termination. See Kelley Decl. ¶ 26; Pigatt Decl. ¶ 14; City’s SOF ¶ 38; see also Harrell’s Response (not 

disputing any of this). Pate, the City says, “had significant local government and public safety 

experience, was a former police lieutenant, and was otherwise qualified for the City Manager position 

given the City’s financial and public safety issues at the time.” City’s SOF ¶ 39 (citing Kelley Decl. ¶ 

26); Harrell’s Response (not disputing this). And Harrell never even mentions Pate in her Response—

much less does she present any evidence that he was similarly situated to her in all material respects. 

Harrell, in short, has failed to meet her prima facie case. 

ii. Legitimate, Non-Discriminatory Reasons 

Even if Harrell had made out a prima facie case, the City would have satisfied its burden of 

proffering legitimate, non-discriminatory reasons for terminating her. At this stage, “the burden then 

shifts to the employer to produce a legitimate, nondiscriminatory reason for the action taken against 

the plaintiff.” Flowers v. Troup Cnty., Ga., Sch. Dist., 803 F.3d 1327, 1336 (11th Cir. 2015) (cleaned up). 

controversy”—and (she adds) “there was an uptick in crime.” Harrell’s Response at 8–9. Three

problems with this. One, again, Harrell offers no evidence to support either of these contentions. Two, 

as Harrell herself acknowledges, the City ultimately fired Daughtrey—a reality that seriously 

undermines her suggestion that he was treated more favorably than she was. And, while it’s true that 

Daughtrey was later rehired, see Harrell’s Response at 7, he was only brought back in an interim 

capacity and was, shortly after, let go, see City’s SOF ¶ 39 (citing Kelley Decl. ¶ 26); Harrell’s Response 

(not disputing this). Three, even here, Harrell never suggests that Daughtrey failed to communicate 

effectively with the community, that (during Daughtrey’s tenure) City employees were wary of airing 

their grievances for fear of reprisals, or that (while Daughtrey was City Manager) morale was at an alltime low—all deficiencies that Kelley (and, to some extent, Burke and Bass) identified in her leadership 

style. 

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“The defendant’s burden is one of production, not persuasion, and is ‘exceedingly light.’” Cotton v. 

Enmarket Inc., 809 F. App’x 723, 725 (11th Cir. 2020) (quoting Smith v. Horner, 839 F.2d 1530, 1537 

(11th Cir. 1988)).

The City says that it fired Harrell because—in the opinions of Commissioners Kelley, Burke, 

and Bass—she “lacked satisfactory communication skills” to keep the City Commission apprised of 

current events, see City’s SOF ¶ 12; she didn’t respond to “an uptick in murders and shootings,” id. ¶ 

13; and she wasn’t functioning like a “professional manager,” id. ¶ 14. Unsurprisingly, poor job 

performance is a legitimate, non-discriminatory reason for firing an employee. See, e.g., Jarvis v. Siemens 

Med. Sols. USA, Inc., 460 F. App’x 851, 856 (11th Cir. 2012) (“In this case, Siemens proffered three 

legitimate, non-discriminatory reasons for terminating Jarvis: (1) poor job performance, (2) 

insubordination, and (3) the knowing falsification of his timecard.”); Tolbert v. Briggs and Stratton, Corp., 

256 F. App’x 340, 342 (11th Cir. 2007) (finding that “poor job performance” was a “nondiscriminatory reason” for firing the employee). But poor performance wasn’t the City’s only reason 

for firing Harrell. At the termination meeting, in fact, Kelley claimed that “employee morale [was at 

an] all-time low” and that “staff [was] fearful to even talk [to Harrell] in fear of retribution.” Meeting 

Video at 1:08:00–1:09:15. Burke likewise alleged that he’d received “comments from employees saying 

that [Harrell] belittles them, [that] they can’t talk to her, and that morale is at an all-time low in our 

City.” Id. at 1:11:25–1:12:34. And, in her declaration, Bass averred that Harrell’s “negativity regarding 

the City and the state oversight board formed the basis for [her] decision to vote to terminate Harrell’s 

employment.” Bass Decl. ¶ 14. These, too, are legitimate reasons for firing someone. See, e.g., Thompson 

v. DeKalb Cnty., 2021 WL 5356283, at *6 (11th Cir. Nov. 17, 2021) (finding that an employer presented 

“legitimate, non-discriminatory reasons for [the plaintiff’s] termination” by pointing to the plaintiff’s 

“hostile and arrogant” interactions with others); Kohser v. Protective Life Corp., 649 F. App’x 774, 778 

(11th Cir. 2016) (holding that an employer met its burden by showing that it fired the plaintiff “after 

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her subordinates submitted numerous complaints about her management style”); Rosenfield v. Wellington 

Leisure Prod., Inc., 827 F.2d 1493, 1496 (11th Cir. 1987) (concluding that an employer “carried its 

burden” by providing evidence that “a client had called . . . to complain about” the plaintiff). 

iii. Pretext

And no reasonable jury could find that the City’s reasons for terminating Harrell were 

pretextual. “To avoid summary judgment the plaintiff must introduce significantly probative evidence 

showing that the asserted reason is merely a pretext for discrimination.” Brooks v. Cnty. Comm’n of 

Jefferson Cnty., 446 F.3d 1160, 1163 (11th Cir. 2006) (cleaned up) (quoting Clark v. Coats & Clark, Inc., 

990 F.2d 1217, 1228 (11th Cir. 1993)). “A reason is not pretext for discrimination ‘unless it is shown 

both that the reason was false, and that discrimination was the real reason.’” Id. (quoting St. Mary’s Honor 

Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). The employee “must address the employer’s proffered 

legitimate reason[s] head on and rebut [them].” Hawkins v. BBVA Compass Bancshares, Inc., 613 F. App’x 

831, 838 (11th Cir. 2015) (cleaned up); see also Crawford v. City of Fairburn, 482 F.3d 1305, 1308 (11th 

Cir. 2007) (“The plaintiff must meet the reason proffered head on and rebut it.” (cleaned up)). An 

employee can show pretext by demonstrating “such weaknesses, implausibilities, inconsistencies, 

incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a 

reasonable factfinder could find all of [the employer’s] reasons unworthy of credence.” Watkins v. 

Sverdrup Tech., Inc., 153 F.3d 1308, 1314 (11th Cir. 1998) (cleaned up). “If the employer proffers more 

than one legitimate, nondiscriminatory reason, the plaintiff must rebut each of the reasons to survive 

a motion for summary judgment.” Crawford, 482 F.3d at 1308 (cleaned up).

None of Harrell’s pretext contentions create a genuine issue of material fact. Here, again, 

evidence is the problem. Harrell starts by challenging the City’s claim that “City staff feared talking to 

Harrell for fear of retribution and that employees did not feel comfortable talking to her.” Harrell’s

Response at 7. To parry this claim, however, her lawyer says—without any citation—that “[t]his is 

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blatant a false statement and creates a genuine issue of fact to be determined by a jury.” Id. (errors in 

original). But her lawyer’s mere say-so cannot stand in for the evidence she was required to produce.

See Bryant, 428 F. App’x at 897 (disregarding an unsupported argument by the plaintiff’s lawyer because

“counsel’s argument is not evidence”). In the next sentence, she adds: “As shown in the letter to the 

City, the Plaintiff named names.” Id. This sentence, too, comes without citation, so we’re left to guess 

about what letter she’s talking about.12 In fairness to Harrell, she did attach a letter to her Response—

the November 14, 2018 Letter she sent to the City Commission—and (we suppose) she might be 

referring to that letter. In that letter, remember, Harrell alleged that Kelley (1) “required Staff to 

perform tasks for private citizens during their City work day”; (2) “used [his] position to directly 

influence and interfere with personnel decisions that are reserved for the Manager, namely the 

reinstatement of terminated personnel”; and (3) “used [his] position and influence to create a working 

environment not conducive to productivity because of their direct ridicule and criticism towards City

Staff.” Harrell’s November 14, 2018 Letter. The problem with this letter, of course, is that it never 

alleges—and certainly includes no evidence of—sex discrimination. Indeed, it never mentions 

Harrell’s sex at all and never so much as speculates that her disagreements with Kelley (however 

vitriolic and unfair) had anything to do with sex.

13

12 That would be reason enough to disregard this sentence. See, e.g., Chavez v. Sec’y, Fla. Dep’t of Corr., 

647 F.3d 1057, 1061 (11th Cir. 2011) (noting that the district court has no independent obligation to 

“mine the record”); Atlanta Gas Light Co. v. UGI Utils., Inc., 463 F.3d 1201, 1209 n.11 (11th Cir. 2006) 

(“Neither the district court nor this court has an obligation to parse a summary judgment record to 

search out facts or evidence not brought to the court’s attention.”); Albrechtsen v. Bd. of Regents of Univ. 

of Wis. Sys., 309 F.3d 433, 436 (7th Cir. 2002) (Easterbrook, J.) (“Courts are entitled to assistance from 

counsel, and an invitation to search without guidance is no more useful than a litigant’s request to a 

district court at the summary judgment stage to paw through the assembled discovery material.”).

13 If the “letter” she’s referring to is the January 12, 2017 Email she sent to City Attorney Brown, 

then—for all the reasons we’ve outlined, see supra at 27–29—that email isn’t probative of anything. To 

recap: (1) none of the statements Harrell attributes to Kelley in that email had anything to do with sex

discrimination; (2) where discrimination was mentioned, it appeared only in the context of Harrell’s 

speculation about what Kelley might have been thinking; and (3) the email focuses on conduct that’s 

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The rest of Harrell’s Response suffers from similar deficiencies. So, for instance, moving 

beyond her own problems with City staff, Harrell says this:

The statement that the Plaintiff failed to effectively communicate regarding City 

events, workshops, and business is an untrue statement. The statements presented in 

the Defendant’s summary judgment regarding the recommendation or develop a plan 

of action to address murders and shootings, that she spoke negatively about the City 

and the State Oversight board are also pretextual and false. The City suffered an uptick 

in murders and shooting during the term of city manager, Daughtrey. A general google 

search by the Court will show that the Miami Herald published an article entitled, 

“Two Miami-area Cities among the most dangerous in the country.” on May 8, 2018, 

5 months prior to the City voting to bring the Plaintiff back as the city manager. 

Plaintiff has no knowledge of the speaking negatively about the City unless, the 

Defendant is referring to the results of her investigation. Harrell Declaration. 

Harrell’s Response at 9 (errors in original). Again, there’s no evidence here. The only citation is to 

Harrell’s Declaration and an unattached Miami Herald article—neither of which, it goes without 

saying, are evidence in the case. But here’s the thing: None of these jumbled and unsupported 

allegations are all that relevant, either. That there were “murders and shootings” in the City before

Harrell took over tells us nothing about whether Harrell did her job and brought those crime figures 

down. And if—as the City alleges, see City’s SOF ¶ 13—Harrell didn’t bring these numbers down, then 

who can blame the City for firing her? Now, we may agree with Harrell and Mayor Pigatt that she, 

two months into the job, deserved a longer tenure—that, given the endemic crime problems the City 

was facing, the Commission could have given her more time to remedy the problem. But we do not 

“sit as a super-personnel department that reexamines an entity’s business decisions.” Denney, 247 F.3d

at 1188 (quoting Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991)). Time and again, 

in fact, the Eleventh Circuit has reminded us that “[a]n employer may fire an employee for a good 

reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is 

not for a discriminatory reason.” Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc) 

far too attenuated from Harrell’s ultimate termination, which occurred nearly two years after the events 

described in the email. 

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(cleaned up).

More fundamentally, nothing in this—or, frankly, any other—passage suggests that the City 

fired Harrell because she’s a woman. Remember, “[a] reason is not pretext for discrimination ‘unless it 

is shown both that the reason was false, and that discrimination was the real reason.’” Brooks, 446 F.3d 

at 1163 (quoting Hicks, 509 U.S. at 515). Whether the crime numbers went up or down, in other words, 

Kelley, Burke, and Bass—as we’ve seen—had other reasons for firing Harrell. 14 By Harrell’s own 

account, in fact, Kelley resented her for blowing the whistle on his heavy-handed management style. 

See November 14, 2018 Letter; November 26, 2018 Email. And, while Harrell’s original lawsuit had

asserted several retaliation claims, see Am. Compl. at 14–17, we dismissed those claims when she 

elected not to respond to the City’s Motion for Judgment on the Pleadings, see Omnibus Order at 3. 

Since she never moved to resuscitate those claims, they’re no longer a part of our case. Without 

evidence that “discrimination was the real reason” for her firing, in short, Harrell cannot sustain her 

pretext contentions. 

Harrell also alleges that she “met with Commissioner Kelley and at no time during this meeting 

did the statements of not being qualified, uptick of crime in the city or complaints from the citizens 

occur.” Harrell’s Response at 9. She says similar things about a meeting with Burke, id. (“Plaintiff also 

met with Commissioner Burke . . . . [who] stated to the Plaintiff that he did not have any concerns or 

problems with her.”), and Bass, id. at 10 (“Plaintiff met with Commissioner Bass . . . . Commissioner 

Bass expressed concerns about her vote to terminate the Plaintiff.”). For these claims, though, she 

14 Again, these other reasons included the Commission’s view that Harrell wasn’t communicating 

effectively with local stakeholders, that she belittled her staff, that City morale was at an all-time low, 

and that City employees were afraid of speaking up—in large part because of Harrell’s tendency 

towards retribution. See, e.g., Meeting Video at 1:08:00–1:09:15 (Kelley’s statements); id. at 1:11:25–

1:12:34 (Burke’s statements); Bass Decl. ¶ 14. It was Harrell’s obligation to rebut each of these 

legitimate reasons for her termination. See Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1312 (11th Cir. 

2018) (explaining that, “where more than one legitimate reason is given, the plaintiff must rebut each 

one”). Because she has failed to do that, the City is entitled to summary judgment. 

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cites only her declaration, which (as we’ve established) isn’t evidence. In any event (again), there’s no 

evidence that the commissioners’ unwillingness to air their grievances to Harrell in these private 

meetings indicates something untoward. The commissioners may well have believed that these public 

matters were best discussed at a regular meeting of the Commission, or they may have already come 

to a decision and didn’t feel like rehashing it with Harrell, or they may have felt uncomfortable about 

telling Harrell—face to face—that they would be voting to oust her. Whatever their motivations, of 

one thing we can be clear: None of these discussions revealed even the slightest hint of sex 

discrimination. Bass, after all, is herself a woman. See generally Meeting Video.

In a strange passage, Harrell also castigates the City because it “cannot and will not produce 

an affidavit from the former City Attorney Vincent Brown, stating that the reasons for the termination 

were for the reasons articulated in their motion for summary judgment.” Harrell’s Response at 10. But 

Harrell had every opportunity to depose Brown if she’d wanted to. That she chose not to is, of course, 

her business. But, at this third step of the McDonnell Douglas test, it was her burden to show that the 

City’s proffered reasons are pretextual. See, e.g., Earley, 907 F.2d at 1081 (“To survive summary 

judgment, the plaintiff must then present concrete evidence in the form of specific facts which show 

that the defendant’s proffered reason is mere pretext. Mere conclusory allegations and assertions will 

not suffice.”). Since Brown’s missing testimony isn’t evidence of anything, it cannot prop up Harrell’s 

claim. 

Next, in a footnote that smacks of the late (great) le Carré, Harrell says this:

Prior to the vote to terminate the Plaintiff, she became aware of a meeting between

Commissioners Kelley, Burke and Bass at Commissioner’s Kelley’s church. Plaintiff 

listed Calvin Russell as a witness who overheard the conversation and plan to vote the 

Plaintiff out during the next meeting. The meeting was a direct violation of Florida’s

Sunshine Law.

Harrell’s Response at 10 n.4 (errors in original). It was at this secret meeting, Harrell later says, that 

the commissioners’ avowed reasons for firing her “were all created[.]” Id. at 11. For this conspiracy 

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theory, again, Harrell cites nothing at all. And, while she claims that a Mr. Russell might’ve been a 

witness to this ecclesiastical cabal, she (for reasons all her own) elected not to depose him. In any event,

Harrell’s claim would fail even if she had some evidence of this conspiracy. That’s because nothing in 

this footnote suggests that the conspiracy centered around Harrell’s sex. See Cooper v. Jefferson Cnty. 

Coroner & Med. Exam’r Off., 861 F. App’x 753, 754 (11th Cir. 2021) (affirming summary judgment on 

the plaintiff’s mixed-motive claims because “Cooper did not introduce any evidence of race- or 

national origin-based conduct”). And, since it’s undisputed that Bass is also a woman, any such claim 

would have been (in a word) implausible. See Shenzhen Kinwong Elec. Co. v. Kukreja, 2021 WL 5834244, 

at *19 n.21 (S.D. Fla. Dec. 9, 2021) (Altman, J.) (“[T]o survive summary judgment, the non-movant 

must do more than simply show that there is some metaphysical doubt as to the material facts. It must 

come forward with some affirmative evidence to support its claim.” (cleaned up)). 

Finally, Harrell concludes by alleging that “City attorney Brown was copied all complaints by 

the Plaintiff regarding the discriminatory behavior of Commissioner Kelly. See Exhibits 1, 2, and 3.” 

Harrell’s Response at 10 (errors in original); see also id. at 9 (“The Plaintiff complained to the City 

Attorney and the current mayor regarding the harassing treatment she was enduring from 

Commissioner Kelley. See Exhibit 1, 2 and 3.”). Here, Harrell does cite some evidence, and she does 

mention discrimination. The problem, of course, is that the three exhibits she cites—Exhibits 1, 2, 

and 3—don’t actually support her claim. As we’ve explained, Exhibit 1—the January 12, 2017 Email—

was written two years before Harrell was fired and doesn’t present any evidence (let alone “concrete 

evidence,” Earley, 907 F.2d at 1081) of sex discrimination. Exhibit 2—the November 14, 2018 

Letter—avers only that some mystery commissioner (1) “required Staff to perform tasks for private 

citizens during their City work day”; (2) “used [his] position to directly influence and interfere with 

personnel decisions that are reserved for the Manager, namely the reinstatement of terminated 

personnel”; and (3) “used [his] position and influence to create a working environment not conducive 

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to productivity because of their direct ridicule and criticism towards City Staff.” Harrell’s November 

14, 2018 Letter. But it doesn’t allege any kind of sex discrimination. And Exhibit 3—the November 

26, 2018 Email—simply identifies Kelley as the mystery commissioner Harrell was complaining about 

in the November 14, 2018 Letter. 

Harrell, in short, has failed to meet her burden under McDonnell Douglas.

b. Mixed-Motive

Harrell’s mixed-motive claim fares no better. In Quigg, the Eleventh Circuit held that “the 

proper framework for examining mixed-motive claims based on circumstantial evidence is the 

approach adopted by the Sixth Circuit in White v. Baxter Healthcare Corp., 533 F.3d 381 (6th Cir. 2008)—

not the McDonnell Douglas framework.” Quigg, 814 F.3d at 1232 (emphasis added). Under this mixedmotive framework, “to survive a defendant’s motion for summary judgment, a plaintiff asserting a 

mixed-motive claim need only produce evidence sufficient to convince a jury that: (1) the defendant 

took an adverse employment action against the plaintiff; and (2) a protected characteristic was a 

motivating factor for the defendant’s adverse employment action.” Id. at 1232–33 (cleaned up). “An 

employee challenging a decision made by a board can succeed on a mixed-motive claim if she 

demonstrates that discriminatory input, such as sex or gender-based bias, factored into the board’s 

decisional process.” Id. at 1241 (cleaned up). “When an employee raising a mixed-motive claim relies 

solely on remarks that indirectly evidence discrimination, the employee must show the circumstances 

surrounding the remarks create a genuine issue of material fact that the employer actually relied on 

her sex or gender in making its decision.” Id. (cleaned up).

Harrell hasn’t come close to meeting this standard. To the contrary, the record is pellucid that 

Kelley, Burke, and Bass voted to terminate her for “a slew of other reasons[.]” Vaughn v. Ret. Sys. of 

Ala., 856 F. App’x 787, 790 (11th Cir. 2021) (rejecting a mixed-motive claim because “[t]he record 

cannot support [a] finding that Vaughn’s gender was at all considered by the powers that be when 

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they terminated her employment”). Kelley, as we’ve seen, provided a detailed account of Harrell’s 

failings as City Manager, and both he and Burke outlined their view that “morale [was at an] all-time 

low”—in part because “staff [was] fearful to even talk in fear of retribution.” City’s SOF ¶¶ 9–15 

(citing the Meeting Video at 1:05:00–1:12:30). In his declaration, Kelley added: “Harrell exhibited 

subpar communications skills. On multiple occasions, I learned about City events, Saturday 

workshops, and City business from residents. I believed it was imperative that a City Manager, such 

as Harrell, effectively communicate with the City commission regarding these matters.” Kelley Decl. 

¶ 11. And Bass (herself a woman) averred that “Harrell’s negativity regarding the City and the state 

oversight board formed the basis for my decision to vote to terminate Harrell’s employment.” Bass 

Decl. ¶ 14. In discussing Harrell’s deficiencies, in short, none of these commissioners ever mentioned

(or even so much as hinted at) Harrell’s sex. 

Trying to establish a discriminatory motive, Harrell advances two arguments—both

unavailing.

First, she claims that “[t]he differences in the provided declarations between the parties create 

a genuine issue of facts and a jury should be allowed to determine who is telling the true about the 

reason for the termination.” Harrell’s Response at 11 (errors in original). Although she doesn’t tell us 

what these “differences” are, she does say—a paragraph or so down—that, according to her 

declaration, “Commissioner Kelley stated in several meetings, ‘he did not want to work with her’; ‘he 

preferred to work with a male city manager’; ‘he wanted city manager Daughtrey back in the position’ 

and other comments.” Harrell’s Response at 11. Two problems with this. One, the only “evidence” 

Harrell gives us for these salacious statements is her own unsigned and undated declaration—which 

isn’t evidence. Two, even if the declaration were evidence, Harrell never tells us when these comments 

were made. She thus fails to tie these discriminatory remarks to her termination—as the law 

unambiguously required her to do. See, e.g., Robertson v. Riverstone Cmtys., LLC, 849 F. App’x 795, 802, 

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807 (11th Cir. 2021) (affirming district court’s order granting summary judgment on plaintiffemployee’s circumstantial-evidence claim because the employer’s “racist and abhorrent” remarks 

“occurred outside the context of and well before the decision to fire” the plaintiff-employee); Williams 

v. Hous. Opportunities for Pers. with Exceptionalities, 777 F. App’x 451, 452, 455 (11th Cir. 2019) (finding 

no actionable circumstantial evidence of discrimination—even though the defendant-employer told

the plaintiff-employee: “I can’t stand your black ass”—because the racist statement’s “content bears 

no relation to the termination decision”).

Second, she complains: “Not one document has been provided by the Defendant prior to the 

Commissioner’s meeting on December 12, 2018 that shows the concerns found in their declarations 

were told or given to the Plaintiff before she was terminated. At no time during the meetings between 

the Plaintiff and Commissioner Kelley, Burke, or Bass were these issues discussed. They were all 

created at the meeting at the church.” Id. (errors in original). Three problems here. One, Harrell cites

nothing—not even her own declaration—for these propositions. Two, even if she had cited something, 

Harrell never explains why any of this matters. Again, we know of no law that would require an 

employer, armed with cause to fire an employee, to warn that employee first—and Harrell never 

suggests that any such law exists. Now, we may be persuaded that an employer would do well, in 

certain circumstances, to warn first and fire later, but “[w]e are not in the business of adjudging 

whether employment decisions are prudent or fair.” Damon, 196 F.3d at 1361; see also Alphin v. Sears, 

Roebuck & Co., 940 F.2d 1497, 1501 (11th Cir. 1991) (“We also stress that we do ‘not sit as a superpersonnel department that reexamines an entity’s business decisions.’” (quoting Dale v. Chi. Tribune 

Co., 797 F.2d 458, 464 (7th Cir. 1986))). Three, nothing in these sentences suggests that the Commission 

fired Harrell because she’s a woman. 

Harrell, in short, cannot sustain a mixed-motive claim of sex discrimination. 

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CONCLUSION

After careful review, we hereby ORDER AND ADJUDGE as follows: 

1. The City’s Motion for Summary Judgment [ECF No. 46] is GRANTED. 

2. Pursuant to FED. R. CIV. P. 58, we’ll enter final judgment separately.

3. The Clerk of Court shall CLOSE this case.

4. All other pending motions are DENIED as moot, all other deadlines are 

TERMINATED, and any remaining hearings are CANCELED.

DONE AND ORDERED in the Southern District of Florida, this 28th day of March 2022.

 _________________________________

 ROY K. ALTMAN

 UNITED STATES DISTRICT JUDGE

cc: counsel of record 

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