1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-CV-22995-WILLIAMS/LOUIS

SILVA HARAPETI,

Plaintiff,

v. 

CBS TELEVISION STATIONS, INC., 

a Foreign Profit Corporation, et al.,

Defendants. 

__________________________________/

REPORT AND RECOMMENDATION

This matter is before the Court on Defendants’ Motion for Summary Judgment (ECF No.

95). This matter was referred to the undersigned United States Magistrate Judge for a Report and

Recommendation by the Honorable Kathleen M. Williams, United States District Judge (ECF No.

136). Plaintiff filed a response in opposition (ECF No. 115), and Defendants filed a Reply (ECF 

No. 119). Upon consideration of the briefings, the pertinent parts of the record, and being otherwise

fully advised in the premises, the undersigned recommends GRANTING Defendants’ Motion for

Summary Judgment.

I. BACKGROUND

This action was filed by Plaintiff Silva Harapeti against Defendants CBS Television Stations 

Inc. (“CBS Television”), CBS Broadcasting, Inc. (“CBS Broadcasting”) and CBS Corporation 

(“CBS Corporation”) for unlawful discrimination predicated on Plaintiff’s sex (gender) and age in 

violation of Title VII of the Civil Rights Act of 1964 as amended (“Title VII”), the Age 

Discrimination in Employment Act (“ADEA”), the Florida Civil Rights Act of 1992, Florida 

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Statutes, Chapter 760, et seq. (“FCRA”), for Defendants’ retaliation against Plaintiff, and for 

Defendants’ negligent infliction of emotional distress (“NIED”) against Plaintiff (ECF No. 91 

(Fourth Amended Complaint)).

Plaintiff was born in 1975. After graduating from the University of Southern California 

with a bachelor’s degree in communications, Plaintiff began working in 2002 as a producer, and 

began reporting in 2003 or 2004 (ECF No. 94, Def. SOF, at ¶¶ 2–3). She worked throughout the 

United States as a television reporter and/or producer for several television stations before being 

hired as a freelance (or “per diem”) reporter at WFOR-TV (“WFOR”) in Miami, Florida, where 

she worked from approximately 2011 until 2013 (id. at ¶¶ 4–5). CBS Television operates WFOR

(id. at ¶ 1). CBS Broadcasting Inc. does not own or operate WFOR (id. at ¶ 81). CBS Corporation

no longer exists as it merged in 2019 with ViacomCBS, which operates stations, including 

WFOR, at some level (id. at ¶¶ 81, 83). 

WFOR re-hired Plaintiff as a freelance producer on or about July 20, 2015, and she began 

taking on the responsibility of a reporter in or around 2016 (id. at ¶ 6, 8). Looking for an 

opportunity to get on air, Plaintiff requested to take on reporter responsibilities from her 

supervisor, Elizabeth Roldan (id. at ¶ 9). 

A reporter or a producer’s pay is based on a variety of factors, including experience, 

seniority, budgetary concerns at the time of hire, and which show they are assigned to (id. at ¶ 

10). Whether an employee is classified as full-time or per diem is a factor that impacts that 

employee’s pay (id. at ¶ 11). There were no differences in the job descriptions for full-time and 

freelance reporters (ECF No. 114, Pl. SOF at ¶ 84). Yet Plaintiff claims that the pay disparity 

between those classified as “full-time” and those classified as “per diem” “created two classes of 

employees” –one group that enjoyed benefits such as vacation and sick leave, and another group 

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who did not have such benefits (id. at ¶ 90). The per diem employees in Miami consisted mostly 

of women or persons of color (id. at ¶ 95). For example, Plaintiff identifies three male reporters—

David Sutta, Ted Schouten, and Carey Codd—who were full-time employees paid more than she 

was. All three were employed with WFOR before Plaintiff was hired, since 2007 (Sutta), 1998 

(Schouten), and 2005 (Codd) (Def. SOF at ¶¶ 22, 28, 32).

As a “freelance” employee, Plaintiff was paid $210 for each day worked, based on an 

annualized salary of $54,600 (id. at ¶ 7). Plaintiff testified that even among other per diem 

reporters, she was paid less because of her age. For example, Amber Diaz is allegedly a younger1

woman who Plaintiff identified as earning $325/350 per day as a freelance reporter (id. at ¶ 60). 

Plaintiff also contends that her male counterpart, Hank Tester, was paid more as a per diem 

reporter than she was, though there is no record evidence of what he was in fact paid. Tester, it 

is not meaningfully disputed, promotes himself as having experience as a reporter in Miami since 

1992 (id. at ¶ 16).

2 Similarly, Plaintiff identifies Tiani Jones as a younger woman who was paid 

“significantly more” than Plaintiff when she was hired in 2016; Ms. Jones however testified that 

she was paid $200 per day—less than Plaintiff (id. at ¶ 54). Finally, Plaintiff alleged that Rielle 

Creighton was hired as a freelance reporter in 2017 and paid significantly more than Plaintiff; 

however, Plaintiff testified that she does not know how much Creighton was paid or even whether 

it was more than Plaintiff’s rate of pay. There is no record evidence of what Creighton was paid

(id. at ¶ 57).

1 Diaz’s age is not part of the record. 

2

Plaintiff’s Response to Defendants’ Material Statement of Facts lists “denied” for this fact. Under Rule 

56.1(b)(2)(C) of the Local Rules, to the extent Plaintiff disputed any of Defendants’ material facts, Plaintiff was 

required to provide evidentiary citations limited to evidence supporting that particular factual dispute. Plaintiff failed 

to do so, merely stating “denied” without elaboration or citation to evidence that might have controverted the asserted 

fact. This was insufficient to dispute those facts for which Defendants provided supporting evidence. See Dockery v. 

N. Shore Med. Ctr., 909 F. Supp. 1550, 1553 (S.D. Fla. 1995).

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Plaintiff alleges that in 2011, she inquired about a full-time position when one became 

available, and that the position was filled with a younger, less experienced woman. Plaintiff 

alleges that twice more, in 2011 and 2012, she inquired about full-time positions when available 

but each spot was filled by a younger woman. Again, when she was rehired as a freelance 

producer in 2015, Plaintiff contends she was told no full-time positions were available, yet 

Defendants hired a younger woman as a full-time reporter. Plaintiff contends two of the women 

who were hired as full-time reporters—Lauren Pastrana and Oralia Ortega—are younger than she 

is. It is Plaintiff’s opinion that they are both paid more than Plaintiff because they are younger 

than her, see (Def. SOF ¶ at 62–63); neither of their salaries are part of the record.

In 2016, Plaintiff alleges that she was warned that her pursuit of a business unrelated to 

her work with WFOR was interfering with and may cause her to be terminated from her freelance 

position. She contends a similarly situated male colleague, David Sutta, was permitted to conduct 

a photography company without recourse from WFOR. Plaintiff did not advance evidence either 

of the alleged warning from her supervisors or of Mr. Sutta’s activities in support of her 

opposition.

On January 4, 2018, Plaintiff met with Roldan, regarding two instances in which Plaintiff 

claims to have been assaulted by members of the public: once while covering Hurricane Irma in 

September 2017 and the other while covering a University of Miami football game in November

2017 (id. at ¶¶ 66–67). Roldan told Plaintiff that their meeting was “not a whining session,” a 

comment Plaintiff claims was discriminatory because if any males were to express a safety 

concern, Roldan would never have told them to stop whining (id. at ¶¶ 68–69). Plaintiff maintains 

that she was retaliated against after this meeting by being “withheld from covering stories” (id.

at ¶ 70). Plaintiff specifically claims that she was not assigned to cover the school shooting at 

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Parkland High School (“Parkland Shooting”) on February 14, 2018 (id. at ¶ 71). Defendants 

advance evidence that Plaintiff was assigned to cover the Parkland Shooting, although not until 

much later in the day, and also reported on multiple days that followed (id. at ¶ 72). Plaintiff 

admitted in her declaration that she was assigned to cover the story later in the day at around 5:00 

PM (id. at ¶ 74). Plaintiff has not identified any other instances of retaliation or discrimination 

(id. at ¶ 75). 

Plaintiff’s last day with WFOR was March 17, 2018 (id. at ¶ 77). On January 9, 2019,

Plaintiff filed a charge of employment discrimination with the Equal Employment Opportunity 

Commission (“EEOC”), which was dually filed with the Florida Commission on Human 

Relations.3 On or about February 25, 2020, the EEOC issued a Notice of Right to Sue. Plaintiff 

timely instituted suit by filing her first Complaint with the Court. 

Defendants moved to dismiss the Complaint, which I recommended denying (ECF No. 

73). In the Order adopting that Report and Recommendation, this Court observed that Plaintiff’s 

claims are limited to those predicated on acts that occurred no more than 300 days prior to filing 

the EEOC complaint, to the extent those claims are predicated on Title VII; and 365 days prior 

to filing the EEOC complaint, to the extent those claims are predicated on Florida law (see ECF 

No. 78). As a practical matter, the only events alleged within that time frame relate to 

Defendants’ alleged discriminatory pay practices based on her gender; Defendants’ disparate pay 

based on her age; and Defendants’ alleged retaliatory decision to hold Plaintiff back from 

covering the breaking story of the Parkland shooting.

Before the Court now is Defendants’ Motion for Summary Judgment on Plaintiff’s 

3 A person seeking to file a lawsuit under Title VII, the FCRA, or the ADEA must first file a charge with the EEOC 

alleging a violation and then obtain authorization from the EEOC. Lewis v. Asplundh Tree Expert Co., 402 F. App’x 

454, 456 (11th Cir. 2010); Bost v. Fed. Express Corp., 372 F.3d 1233, 1238 (11th Cir. 2004).

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Corrected Fourth Amended Complaint. Because the evidence advanced by Plaintiff in opposition 

to the motion falls short of establishing a prima facie case on any of her claims challenged on the 

Motion, the undersigned recommends that Defendants’ Motion for Summary Judgment is due to be 

granted.

II. LEGAL STANDARD

A. Summary Judgment

Under Rule 56, “[t]he court shall grant summary judgment if the movant shows that 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). The movant “bears the initial responsibility of informing the district 

court of the basis for its motion, and identifying those portions of [the record] which it believes 

demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 

317, 323 (1986). To discharge this burden, the movant must identify an absence of evidence to 

support the nonmoving party’s case. Id. at 325.

After the movant has met its burden under Rule 56(c), the burden of production shifts, and 

the nonmoving party “must do more than simply show that there is some metaphysical doubt as to 

the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 

The nonmoving party must support her assertion that a genuine material fact remains in dispute by 

citing to specific parts of the record. Sutton v. Royal Caribbean Cruises Ltd., 285 F. Supp. 3d 

1349, 1351 (S.D. Fla. 2018) (“In opposing a motion for summary judgment, the non-moving party 

may not rely solely on the pleadings, but must show by affidavits, answers to interrogatories, and 

admissions that a specific fact exist demonstrating a genuine issue for trial.”), aff’d, 774 F. App’x 

508 (11th Cir. 2019). A fact or issue is material for purposes of summary judgment only if it might 

affect the outcome of the suit under the governing law. Webb v. Carnival Corp., 360 F. Supp. 3d 

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1339, 1343 (S.D. Fla. 2017). Summary judgment is proper “against a party who fails to make a 

showing sufficient to establish the existence of an element essential to the party’s case and on 

which that party will bear the burden of proof at trial.” Id. at 1344 (citing Celotex Corp., 477 U.S. 

at 322). 

In considering a motion for summary judgment, the Court must evaluate the evidence and 

make all inferences in the light most favorable to the nonmoving party. Sutton, 285 F. Supp. at 

1351 (citing Matsushita Elec. Indus. Co., 475 U.S. at 586-87). However, the nonmoving party 

may not merely point to a scintilla of evidence that creates a metaphysical doubt about an issue; 

instead, the evidence must be sufficient to allow a rational trier of fact to find for the nonmoving 

party. Matsushita Elec. Indus. Co., 475 U.S. at 586-87. Axiomatically, evidence is required; 

conclusory and unsubstantiated averments will not do, Leigh v. Warner Bros., Inc., 212 F.3d 1210, 

1217 (11th Cir. 2000), and citations to specific record evidence are necessary, Fitzpatrick v. City 

of Atlanta, 2 F.3d 1112, 1116-17 (11th Cir. 1993).

B. Title VII and the Florida Civil Rights Act

Title VII prohibits discrimination in employment decisions on the basis of “race, color, 

religion, sex or national origin.” See 42 U.S.C. § 2000e-2(a)(1).4 A plaintiff may prevail on her 

Title VII claim by proving that discrimination was a “motivating factor” in the employment 

decision, Holland v. Gee, 677 F.3d 1047, 1055 (11th Cir. 2012), which the plaintiff may 

accomplish by offering either direct or circumstantial evidence. See Gray v. Deloitte LLP, 849 F. 

App’x 843, 844 (11th Cir. 2021) (citing Dixon v. The Hallmark Cos., 627 F.3d 849, 854 (11th Cir. 

2010)). Circumstantial evidence suggests rather than proves discrimination, often requiring one 

4 The FCRA is patterned after Title VII, and thus the same legal framework applies to FCRA and Title VII claims. 

See Hicks-Washington v. Hous. Auth. of City of Fort Lauderdale, 803 F. App’x 295, 300 (11th Cir.), cert. denied, 141 

S. Ct. 366 (2020). 

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or more inferences to reach the conclusion that the employer was motivated by discriminatory 

animus. Gray, 849 F. App’x at 845. Therefore, remarks unrelated to the decision-making process 

are considered circumstantial, rather than direct evidence. Id. at 844.

Absent direct evidence, the court applies the burden-shifting framework set forth in 

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see Gray, 849 F. App’x at 844. 

McDonnell Douglas requires a plaintiff to make out a prima facie case. Id. at 845 (citation 

omitted); see also Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003) 

(additionally listing the requirement that the plaintiff demonstrates that she is qualified for the job 

he held). Upon establishing a prima facie case, the burden of production shifts to the employer to 

articulate a legitimate reason for the adverse action. Gray, 849 F. App’x at 845. If the employer 

can rebut the presumption, the plaintiff must then prove that the reason offered by the employer is 

pretextual. Id.; see also Lee v. GTE Fla., Inc., 226 F.3d 1249, 1253 (11th Cir. 2000).

C. Age Discrimination in Employment Act5

The ADEA prohibits employers from discharging an employee, who is 40 years of age or 

older, on the basis of her age. See 29 U.S.C. §§ 623(a)(1), 631(a). To establish an ADEA claim, 

plaintiff bears the burden of persuasion to prove that age was the “but-for” cause of the employer’s 

adverse action. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009). In this way, the ADEA 

differs from Title VII, which requires only that a plaintiff demonstrate that the employer’s bias 

was “a motivating factor” in the adverse decision. Sims v. MVM, Inc., 704 F.3d 1327, 1335 (11th 

Cir. 2013). While the motivating factor test, analogous to proximate causation in tort law, requires 

simply “some direct relation” between the proscribed animus and the adverse decision, under the 

5 Age discrimination claims brought under the FCRA are analyzed under the same framework as the ADEA. Rainey 

v. UPS, 816 F. App’x 397, 400 (11th Cir. 2020).

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“but-for” requirement of the ADEA the animus must have determinatively influenced the 

employer’s adverse decision. Id. (citations omitted).

The ADEA, therefore, imposes a higher bar for plaintiffs. Sims, 704 F.3d at 1336. 

Relatedly, the burden-shifting framework does not apply here, and the plaintiff retains the burden 

even where she introduces evidence that age was “one motivating factor” in the employer’s 

decision. See Gross, 557 U.S. at 180 (adding that this is true even in the context of alleged “mixed 

motivation” claims where plaintiff may also allege that the adverse actions were motivated by, for 

example, sex or national origin in violation of Title VII).

III. DISCUSSION

Defendants move for summary judgment on Plaintiff’s claims of unlawful 

discrimination predicated on Plaintiff’s gender and age in violation of Title VII, the ADEA, and 

the FCRA; Defendants’ retaliation against Plaintiff; and Defendants’ NIED against Plaintiff. 

Each claim is addressed below.

A. Age and Gender Discrimination Claims under Title VII, the ADEA, and the 

FCRA

Defendants’ Motion for Summary Judgment applies the same arguments and 

analytical framework on Plaintiff’s gender and age discrimination claims under Title VII, the 

ADEA, and the FCRA. Accordingly, the Court considers Defendants’ Motion on these claims 

collectively. 

1. Comparator Analysis

To prevail on her discrimination claims, Plaintiff must first prove that Defendants’ 

employment decisions were motivated by her age or gender. Plaintiff relies on circumstantial 

evidence, so the Court will use the familiar framework established in McDonnell Douglas. Wilson 

v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004) (“In evaluating [Title VII] disparate 

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treatment claims supported by circumstantial evidence, we use the framework established by the 

Supreme Court in [McDonnell Douglas.]”). Defendants contend that Plaintiff has failed to make 

out a prima facie case; other than her ability to demonstrate that she belongs to a protected class, 

Defendants challenge her ability to adduce competent evidence that she received lower wages than 

similarly situated comparators outside her protected class, or that she was qualified to receive the 

higher wage. 

Defendants challenge Plaintiff’s comparators on the basis that they were not similarly 

situated to her. Defendants contend that Plaintiff has not produced evidence that, during the 

relevant period, a single similarly situated male or younger female freelance reporter or 

producer received higher wages than Plaintiff. Defendants contend that reporters who held a fulltime position are inadequate comparators because they contend it is a different position, not 

comparable to Plaintiff’s rate of pay. Defendants’ argument reveals a basic misunderstanding of 

Plaintiff’s claims. 

Plaintiff claims that throughout her employment, she remained classified as “freelance” and 

was passed over for full-time positions even after being assured by Defendants that she would be 

considered for a full-time position when an opening became available. Various opportunities arose 

during Plaintiff’s period of employment and Defendants did not offer Plaintiff a full-time position. 

Thus, Plaintiff insists that Defendants failed to promote her to the full-time position she sought and 

the evidence demonstrates a systematic practice by Defendants of giving full-time employment 

contracts, top news story assignments, and increased salaries to males and younger females.6 

To establish a prima facie case of discrimination in a promotional decision, a plaintiff must 

prove: (1) she belonged to a protected class, (2) she was qualified for and applied for the position, 

6 Plaintiff also references employees who complained of racial disparities and discrimination in her argument (ECF 

No. 115 at 2), however, Plaintiff’s claims are limited to gender-based and age discrimination. 

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(3) despite her qualifications, she was rejected, and (4) the position was filled with an individual 

outside the protected class. Lee, 226 F.3d at 1253. There is no dispute that Plaintiff, a female over 

the age of 40, belongs to a protected class; Plaintiff’s description of the types of duties she 

performed as a freelance employee, as well as Roldan’s deposition testimony (ECF No. 110-1 at 

49:7-50:24), establish her qualifications for full-time employment; Plaintiff adduced evidence that 

she inquired about full-time positions on multiple occasions, starting in 2011 and again in 2012, 

2015, and 2017; Plaintiff remained freelance throughout her time with CBS; and Plaintiff produced 

deposition testimony that other individuals outside of her protected class were hired as full-time 

reporters during the course of her employment. However, Plaintiff has not identified an event 

within the actionable time period, in 2018, of an opportunity to ascend to the full-time position that 

Defendants filled with a male or younger female.

Plaintiff acknowledges that “some” of her examples occurred outside the applicable statute 

of limitations but urges that they should be considered as relevant to show a pattern of 

discrimination throughout the entirety of her employment. Without disputing the possible relevance 

of prior incidents, the problem here is that Plaintiff has not identified a single incident within the 

applicable statute of limitations of her being passed over for a full-time position. To the extent her 

discrimination claims are premised on a failure to promote theory, her failure to adduce any such 

evidence forecloses her success on that theory. 

To the extent Plaintiff’s claims are more generally predicated on Defendants’ discriminatory 

practice of paying her less than her male and younger female colleagues, Plaintiff urges the Court 

to focus on how her comparators may be similar and not dissimilar to Plaintiff. Plaintiff quotes 

Coleman v. Donahoe, a case from the Seventh Circuit, asserting that comparators are “‘usually a 

question for the factfinder,’ and summary judgment is appropriate only when ‘no reasonable factCase 1:20-cv-22995-KMW Document 150 Entered on FLSD Docket 07/29/2022 Page 11 of 23
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finder could find that plaintiffs have met their burden on the issue.’” 667 F.3d 835, 846-47 (7th 

Cir. 2012) (quoting Srail v. Village of Lisle, 588 F.3d 940, 945 (7th Cir. 2009)). As such, Plaintiff 

maintains that summary judgment for Defendants is inappropriate and that the jury must be 

permitted to render a decision on the issue. However, the Eleventh Circuit has found that the 

appropriate test is actually the one that sufficiently enables courts to decide the sufficiency of 

plaintiff’s evidence at summary judgment. See Lewis v. City of Union City, Georgia, 918 F.3d 

1213, 1226 (11th Cir. 2019).

In Lewis, the Eleventh Circuit answered “[t]he obvious question: Just how ‘similarly

situated’ must a plaintiff and her comparator(s) be?” Id. at 1217. In cases like this one, “a plaintiff 

must show that she and her comparators are ‘similarly situated in all material respects.’” Id. at 

1224. “[A] plaintiff and her comparators must be sufficiently similar, in an objective sense, that 

they ‘cannot reasonably be distinguished.’” Id. at 1228 (quoting Young v. United Parcel Serv., Inc., 

575 U.S. 206, 231 (2015)). Specifically, the Eleventh Circuit stated the following principles:

(1) a plaintiff does not have to prove that she and her comparators are identical save 

for their race or gender; and (2) it is not necessary that a plaintiff and her comparators 

have precisely the same [job] title[s] or functions. However, ordinarily, a valid 

comparator: (a) will have engaged in the same basic conduct (or misconduct) as the 

plaintiff; (b) will have been subject to the same employment policy, guideline, or 

rule as the plaintiff; (c) will have been under the jurisdiction of the same supervisor 

as the plaintiff, but not invariably so; and (d) will share the plaintiff’s employment 

or disciplinary history.

Johnson v. Miami-Dade Cty, 948 F.3d 1318, 1327 n.7 (11th Cir. 2020) (citing Lewis, 918 F.3d at 

1227–28) (citations and quotations omitted). “[I]f a plaintiff fails to show the existence of a 

similarly situated employee, summary judgment is appropriate where no other evidence of 

discrimination is present.” Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1277 (11th Cir. 2008) 

(emphasis and citations omitted). 

Plaintiff identifies eight potential younger female comparators who she alleges are similarly 

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situated: Kara Kostanich, Maggie Newland, Summer Knowles, Lauren Pastrana, Oralia Ortega, 

Rielle Creighton, Amber Diaz, and Tiani Jones. Fatal to Plaintiff’s position on summary judgment, 

she advances no record evidence either that these women were younger than her nor that they were 

promoted over her, nor what they were paid. The unsupported factual proffer in her Response (ECF 

No. 115 at 11) will not carry her burden on summary judgment. The mere allegation of factual 

disputes found in Plaintiff’s Response may not be taken into account by a Court in determining 

issues of fact to be resolved in a motion for summary judgment. See Helmich v. Kennedy, 796 F.2d 

1441, 1443 (11th Cir. 1986) (“Statements of fact in a party’s brief, not in proper affidavit form, 

cannot be considered in determining if a genuine issue of material fact exists.”). 

Defendants aver that Plaintiff does not point to any record evidence that her male 

comparators had higher compensation rates than Plaintiff. Plaintiff contends in her Response that 

she was paid a lower rate than her male team members, who she claims were similarly situated. 

Plaintiff’s responsive statement of facts, however, lacks any substantiation for her argument and 

cites to no record evidence. Plaintiff does not support her theory with evidence that any of these 

comparators were in fact paid more than she was,

7

relying vaguely on the fact that these individuals 

were paid as full-time employees. Giving Plaintiff the benefit of every permissible inference—and 

without expressly finding that such an inference here would be permissible—she still fails to adduce 

any evidence at all from which the Court could assess whether any of the comparators a similarly 

situated to her in all material respects. 

Defendants advance evidence that Sutta, Schouten, and Codd have greater experience with 

WFOR (and generally) than does Plaintiff. Sutta began working at WFOR in 2007, Schouten in 

7 Plaintiff alleges that Sutta, “who had a full-time position with Defendants, was allowed to run his own personal 

photography company, while simultaneously working for Defendants” (ECF No. 115 at 12). In contrast, Plaintiff 

alleges that she was told by her supervisors that she could not have her own business and work for Defendants as a 

freelancer simultaneously. These facts are not alleged in or supported by Plaintiff’s Statement of Facts. 

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1998, and Codd in 2005. See Crawford v. Carroll, 529 F.3d 961, 975 (11th Cir. 2008) (finding an 

employee not a proper comparator where they worked for the employer “several years longer” than 

plaintiff); Davis v. Dunn Constr. Co., Inc., 872 F. Supp. 2d 1291, 1310 (N.D. Ala. 2012) (noting 

that “courts look to the amount of years an individual has worked for the employer,” and finding 

individual was not a proper comparator where they had more experience and seniority). Mends, a 

videographer, is neither a reporter nor a producer and instead works in a separate and distinct role 

from Plaintiff. See Earle v. Birmingham Bd. of Educ., 843 F. App’x 164, 166 (11th Cir. 2021)

(noting that similarly situated employees will have the same responsibilities as the plaintiff). As 

such, these comparators are not similarly situated in all material aspects as the Eleventh Circuit 

contemplated in Lewis. 

Tester, a male freelance reporter, is likewise not similarly situated to Plaintiff. Tester has 

worked in television since 1969 (ECF No. 94-5). Tester also owned and operated television stations 

in Nevada and Arizona, while serving various roles at those television stations including news 

director, assignment editor, editorial writer, and on-air reporter. See id. Tester has worked as a 

reporter in Miami since 1992. Plaintiff admitted in her testimony that Tester “has more experience 

than [her]” and that his experience was “possibly” a reason his pay was higher (ECF No. 94-3 at 

166:24–167:15). Thus, Tester is not similarly situated to Plaintiff in all material aspects and is not 

a proper comparator either. See Dyett v. N. Broward Hosp. Dist., No. 03-60804 CIV, 2004 WL 

5320812, at *7 (S.D. Fla. Mar. 17, 2004) (finding that seniority and work experience are factors 

that distinguish employees). Accordingly, the undersigned recommends that summary judgment is 

warranted on Plaintiff’s discrimination claims as she has failed to make a prima facie case.

2. Convincing Mosaic

Plaintiff alternatively travels on proving Defendants’ discrimination by establishing a 

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convincing mosaic of circumstantial evidence. “[E]stablishing the elements of the McDonnell 

Douglas framework is not, and never was intended to be, the sine qua non for a plaintiff to survive 

a summary judgment motion in an employment discrimination case. Accordingly, the plaintiff’s 

failure to produce a comparator does not necessarily doom the plaintiff’s case.” Smith v. LockheedMartin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). “A plaintiff can still survive summary 

judgment if she ‘presents a convincing mosaic of circumstantial evidence that would allow a jury 

to infer intentional discrimination by the decisionmaker.’” Moultrie v. Ga. Dep’t of Corr., 703 F. 

App’x 900, 907 (11th Cir. 2017) (citing Smith, 644 F.3d at 1328). 

“A ‘convincing mosaic’ may be shown by evidence that demonstrates, among other things, 

(1) ‘suspicious timing, ambiguous statements . . . , and other bits and pieces from which an inference 

of discriminatory intent might be drawn,’ (2) systematically better treatment of similarly situated 

employees, and (3) that the employer’s justification is pretextual.” Lewis v. City of Union City, 

Georgia, 934 F.3d 1169, 1185 (11th Cir. 2019) (internal citations omitted). Plaintiff offers to prove 

only the second factor, that is, evidence to show systematically better treatment of similarly situated 

employees. 

Defendants characterize Plaintiff’s attempt to construct a convincing mosaic as essentially 

“me too” evidence, where Plaintiff is utilizing evidence of discrimination and retaliation suffered 

by others in support of her claims. The Court scrutinizes the relevance of “me too” evidence to 

determine “how closely related the evidence is to the plaintiff’s circumstances.” Sprint v. 

Mendelsohn, 552 U.S. 379, 388 (2008). 

Plaintiff advances the deposition of Joel Goldberg, and a news article, both of which 

describe discriminatory practices of and allegations against two CBS executives: Peter Dunn and 

David Friend (ECF No. 109 at 9:20-13:18, 51:9-53:4; 113-1). Plaintiff also provides the deposition 

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of Tiani Jones, who testified about instances of discrimination and retaliation at WFOR in Miami 

(ECF No. 108 at 54:6-56:3, 60:5-14, 63:16-64:17, 73:15-76:1, 76:9-15). Viewing this evidence in 

the light most favorable to Plaintiff, it still falls short of demonstrating a convincing mosaic of 

circumstantial evidence of Defendants’ discrimination. Neither of the CBS executives, Dunn nor 

Friend, were involved in the day-to-day management of WFOR’s employees. Plaintiff’s news 

article references allegations of “sexism, racism, and homophobia,” at a news station in 

Philadelphia, not Miami. The executives were also not involved in any decision concerning 

Plaintiff’s employment. It is further unclear whether the allegations against them involved age or 

gender-based discrimination or retaliation. 

Jones testified regarding her own allegations of racial discrimination. Plaintiff’s claims 

involve alleged gender-based and age discrimination, thus any evidence of Jones’ allegations 

involving race does not support Plaintiff’s position. Plaintiff cannot avoid summary judgment by 

relying on the convincing mosaic standard either. Accordingly, the undersigned respectfully 

recommends the Court grant summary judgment on Plaintiff’s discrimination claims under Title 

VII, the ADEA, and the FCRA.

B. Retaliation under Title VII and the FCRA

Plaintiff’s retaliation claim under Title VII is limited to those events occurring after March 

15, 2018 (ECF No. 78). Notably, Plaintiff’s final day of employment with WFOR was just two 

days later on March 17, 2018 (ECF No. 94-2 at 2). Plaintiff has not identified any retaliatory 

conduct occurring after March 15, 2018. As such, the undersigned recommends the Court grant 

Plaintiff’s retaliation claim under Title VII.

For the FCRA, Plaintiff’s retaliation claim is limited to events occurring after January 9, 

2018 (ECF No. 78). Defendants maintain that the single allegedly retaliatory act occurring within 

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the FCRA limitations period–Plaintiff not being immediately assigned to the Parkland Shooting–is 

insufficient to sustain Plaintiff’s FCRA retaliation claim. Under the McDonnell Douglas burdenshifting framework, Plaintiff must show that: (1) she engaged in statutorily protected conduct; (2) 

she suffered an adverse employment action; and (3) the adverse action is causally related to the 

protected expression. Williams v. Motorola, Inc., 303 F.3d 1284, 1291 (11th Cir. 2002).

For the first element, Plaintiff engaged in statutorily protected conduct by complaining to 

management regarding incidents from September and November of 2017 where members of the 

public allegedly groped her. Plaintiff lodged her complaint because Defendants sent her, a woman, 

to an unsafe environment. 

Nevertheless, Plaintiff fails to meet the second and third prong. Plaintiff has not advanced 

evidence to demonstrate that she suffered a materially adverse action. A “materially adverse action” 

in the context of a retaliation claim means that the action “might have dissuaded a reasonable worker 

from making or supporting a charge of discrimination.” Jarvis v. Siemens Med. Sols. USA, Inc., 

460 F. App’x 851, 858 (11th Cir. 2012) (internal citations and quotations omitted). Plaintiff insists

that Defendants retaliated against her by initially assigning her to an entirely different story than 

the Parkland Shooting while every other reporter, videographer, and producer was mobilized to 

Parkland High School on February 14, 2018 (ECF No 94-16 at ¶ 8) (“Finally around 5:00 pm, 

Executive Producer Jorge Gonzales, in charge for the 11pm newscast told me and my videographer 

to ‘drive toward Parkland High School.’ This meant that being sent out to the story that late in the 

day would mean that I would sit in traffic for hours and go nowhere.”). The Eleventh Circuit has 

“determined that an adverse employment action includes termination, failure to hire, or demotion”; 

however, “[a]n employer’s conduct falling short of those actions must, in some substantial way, 

alter the employee’s compensation, terms, conditions, or privileges of employment, deprive him or 

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her of employment opportunities, or adversely affect his or her status as an employee.” Blue v. 

Dunn Constr. Co., 453 F. App’x 881, 884 (11th Cir. 2011) (internal citations omitted).

This alleged adverse employment action here does not constitute an adverse employment 

decision sufficient to support an FCRA retaliation claim. Although Plaintiff contends she was 

“humiliated, ridiculed and made an example out of before my peers in the newsroom for several 

hours” (ECF No. 94-16 at ¶ 8), she fails to explain, much less prove, that this event substantially 

altered her employment. See Davis v. Town of Lake Park, 245 F.3d 1232, 1238 (11th Cir. 2001) 

(“[N]ot all conduct by an employer negatively affecting an employee constitutes adverse 

employment action.”). Plaintiff has offered no evidence that not being immediately assigned to the 

Parkland Shooting altered her compensation, terms, conditions, or privileges of employment, 

deprived her of opportunities, or adversely affected her status as an employee. See also Harapeti 

v. CBS Television Stations, Inc., No. 20-CV-20961, 2022 WL 1274049, at *8 (S.D. Fla. Mar. 1, 

2022), report and recommendation adopted, No. 20-20961-CIV, 2022 WL 1024775 (S.D. Fla. Apr. 

6, 2022) (finding Plaintiff “offered no evidence that her allocation to the weekend shift or not being 

immediately assigned to the Parkland Shooting altered her compensation, terms, conditions, or 

privileges of employment or affected her status as an employee.”) 

Finally, Plaintiff has not advanced evidence from which to establish a causal connection 

between her complaints of discrimination and not being immediately assigned to cover the Parkland 

Shooting. See Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001) (requiring 

the showing of a causal relation between the protected activity and the adverse action in order to 

establish a prima facie case of retaliation). Noting Roldan’s apparent commentary during their 

meeting about it not being a “whining session,” and construing all other evidence in the light most 

favorable to Plaintiff, there is still a lack of connection between Plaintiff’s complaint regarding 

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dangerous situations in the field to the alleged gender-based or age discrimination against her. 

Because Plaintiff has not presented sufficient evidence for a reasonable jury to conclude that she 

has satisfied the elements of her prima facie case of retaliation, the undersigned recommends the 

Court grant summary judgment in favor of Defendants with respect to Plaintiff’s retaliation claim 

under the FCRA.

C. Negligent Infliction of Emotional Distress

Plaintiff also claims that she suffered emotional distress as a result of the physical and verbal 

abuse she endured by members of the public during the two incidents in 2017, due to Defendants’ 

negligence. Plaintiff alleges that Defendants negligently sent her to cover Hurricane Irma in Miami 

Beach and to cover a University of Miami football game, despite the danger of being a female 

reporter in large public gatherings. 

Defendants move for summary judgment on Plaintiff’s NIED claim because there is no 

evidence that Plaintiff alerted her supervisors to the potential danger of these reporting situations, 

nor did Plaintiff request security. Furthermore, Defendants contend that Plaintiff cannot meet the 

elements of an NIED claim, specifically that she did not sustain any physical injuries in accordance 

with Florida law.

Plaintiff responds that she voiced complaints regarding her safety as a female in large public 

gatherings and that her NIED claims should go to the jury. On reply, Defendants contend that 

Plaintiff has failed to meaningfully respond to the two arguments raised in their Motion, having 

relegated her response to their challenge in a single footnote that simply prays that the Court allow 

the claim to be decided by the jury. Moreover, Defendants highlight how Plaintiff does not dispute 

that Florida law requires that Plaintiff suffer physical injuries and how Plaintiff did not suffer 

physical injuries as a result of these incidents. 

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Under Florida law, in order to recover on an NIED claim, Plaintiff must show that she 

suffered emotional distress caused by a physical impact, which manifested itself into some physical 

injury resulting from another’s negligence. See Reynolds v. State Farm Mut. Auto. Ins. Co., 611 

So. 2d 1294, 1296 (Fla. 4th DCA 1992), rev. denied, 623 So. 2d 494 (Fla. 1993). Because a claim 

for emotional distress is intrinsically speculative and difficult to determine, the requirements of 

physical impact and physical injury are essential to succeed on a cause of action for NIED. See 

Landry v. Fla. Power & Light Corp., 799 F. Supp. 94, 96 (S.D. Fla. 1992) (stating that physical 

injury is a predicate to recovery for NIED and psychological trauma alone is not sufficient). 

Plaintiff has not offered evidence any demonstrating a physical injury resulting from the 

two incidents. Even in the single footnote dedicated to responding to Defendants’ Motion for 

Summary Judgment on this claim, Plaintiff fails to cite to any evidence that could be presented to 

the jury on this claim. Rather, her citation refers generally to her own declaration filed in support 

of her opposition, which provides no description of the events alleged to give rise to the claim or

any injury resulting therefrom. Plaintiff has not adduced competent evidence sufficient to create a 

material dispute of fact on this claim. Therefore, the undersigned respectfully recommends 

summary judgment be granted in favor of Defendants on Plaintiff’s NIED claim.

D. Constructive Discharge

Plaintiff asserts in her Fourth Amended Complaint that she was constructively discharged 

by virtue of her hostile work environment.

8

 Defendants moved for summary judgment on this claim

as well, on the basis that any claim for constructive discharge was foreclosed by the Court’s Order 

on their Motion to Dismiss. Plaintiff did not address their argument in her Response. While her 

8

“[A]fter years of continuously being subjected to a hostile work environment . . . on or about March 16, 2018, 

Defendant constructively discharged Plaintiff.” (Fourth Amended Complaint at ¶ 82).

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failure to respond affords the Court sufficient basis to grant Defendants’ Motion on this claim, it is 

warranted on the merits. 

In the Court’s Order adopting the undersigned’s Report and Recommendation on 

Defendants’ Motion to Dismiss, the Court noted that Plaintiff did not allege a hostile work 

environment claim “either independently or as part of another claim” and denied Plaintiff “leave to 

assert such a claim” (ECF No. 78 at 2 n.2). Without a hostile work environment claim, there can 

be no constructive discharge claim. See Pennsylvania State Police v. Suders, 542 U.S. 129, 149

(2004) (finding that the “[c]reation of a hostile work environment is a necessary predicate to a 

hostile-environment constructive discharge case.”). Plaintiff’s claim for constructive discharge has 

been foreclosed and I recommend that, to the extent the operative complaint purports to assert such 

a claim, Defendants’ Motion for Summary Judgment be granted.

E. Joint Employer Relationship 

Plaintiff worked for WFOR in Miami, a station owned-and-operated by Defendant CBS 

Television. Defendants CBS Broadcasting and CBS Corporation do not own nor operate WFOR. 

Plaintiff nevertheless alleges that she worked for “Defendants,” consisting of CBS Television, CBS 

Broadcasting, and CBS Corporation, and that Defendants jointly employed her through their 

respective corporate officers and agents.

Defendants contend that Plaintiff did not work for CBS Broadcasting and CBS Corporation 

and that she has failed to elicit facts sufficient to find a joint employer relationship. Plaintiff does 

not respond to Defendants’ argument and the Court treats this as a concession. See Melendez v. 

Town of Bay Harbor Islands, No. 14-22383-CIV, 2014 WL 6682535, at *7 (S.D. Fla. Nov. 25, 

2014) (quoting Glass v. Lahood, 786 F. Supp. 2d 189, 210 (D.D.C. 2011) (“[W]hen a plaintiff files

an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, 

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a court may treat those arguments that the plaintiff failed to address as conceded.”). 

“Courts consider several factors in determining whether a joint employment relationship 

exists: ‘(1) the nature and degree of the putative employer's control of the workers; (2) the degree 

of supervision, direct or indirect, of the work; (3) the right, directly or indirectly, to hire, fire or 

modify the worker's employment conditions; (4) the power to determine the worker's pay rates or 

methods of payment; (5) the preparation of payroll and payment of worker's wages; (6) the 

ownership of the facilities where the work occurs; (7) whether the worker performed a line job 

integral to the end product; and (8) the relative investment in equipment and facilities.’” Harapeti 

v. CBS Television Stations Inc., No. 20-22995-CIV, 2021 WL 3888126, at *7 (S.D. Fla. July 2, 

2021), report and recommendation adopted, No. 20-22995-CIV, 2021 WL 3887542 (S.D. Fla. Aug. 

31, 2021) (quoting Aguilar v. United Floor Crew, Inc., No. 14-CIV-61605, 2014 WL 6751663, at 

*4 (S.D. Fla. Dec. 1, 2014)). 

Plaintiff worked for Defendant CBS Television in Miami and there is no evidence that any 

entity other than Defendant CBS Television was involved in the conduct forming the basis of her 

claims. Accordingly, Defendant CBS Corporation and Defendant CBS Broadcasting did not 

“jointly employ” Plaintiff and the undersigned respectfully recommends the Court grant summary 

judgment on Plaintiff’s claims brought against Defendant CBS Corporation and Defendant CBS 

Broadcasting.

IV. RECOMMENDATION

Based on the foregoing, it is the Recommendation of the undersigned that Defendants’

Motion be GRANTED. 

A party shall serve and file written objections, if any, to this Report and Recommendation 

with the Honorable Kathleen M. Williams, United States District Court Judge for the Southern 

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District of Florida, within FOURTEEN (14) DAYS of being served with a copy of this Report and 

Recommendation. Failure to timely file objections will bar a de novo determination by the District 

Judge of anything in this recommendation and shall constitute a waiver of a party’s “right to 

challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions.” 

11th Cir. R. 3-1 (2016); 28 U.S.C. § 636(b)(1)(C); see also Harrigan v. Metro-Dade Police Dep’t 

Station #4, 977 F.3d 1185, 1191-92 (11th Cir. 2020).

RESPECTFULLY SUBMITTED in Chambers in Miami, Florida this on this 29th day of 

July, 2022.

______________________________

LAUREN FLEISCHER LOUIS

UNITED STATES MAGISTRATE JUDGE

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