ACTIVE 53512988v1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

HENRY CONNER,

Plaintiff,

v. CASE NO. 3:20-cv-5263-TKW-EMT

CENTURION OF FLORIDA, 

LLC and MHM HEALTH 

PROFESSIONALS, LLC f/k/a 

MHM HEALTH PROFESSIONALS,

INC.,

Defendants.

 /

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Defendants Centurion of Florida, LLC (“Centurion”) and MHM Health 

Professionals, LLC (“MHMHP”) (collectively, “Defendants”), by and through their 

undersigned counsel and pursuant to Fed.R.Civ.P. 56, hereby move for summary 

judgment. The grounds upon which the instant motion is based are set forth in the 

following Supporting Memorandum of Law. 

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SUPPORTING MEMORANDUM OF LAW

I.

STATEMENT OF FACTS

A. Background

1. Centurion maintains a contract with the Florida Department of 

Corrections (“FDOC”) for the provision of comprehensive inmate health services.

Centurion subcontracts with MHMHP, which provides staffing of healthcare 

providers. [Doc. 29-30, ¶ 3].

2. Security Officers are employees of the FDOC. [Doc. 29-1, 57:24-58:2]. 

FDOC Security Officers are not employees of MHMHP or Centurion. [Doc. 29-

1,58:2-5].

3. On April 4, 2016, Plaintiff Henry Conner (“Conner”) was offered 

employment with MHMHP as a Mental Health Professional (“MHP”). [Doc. 29-1, 

41:17-19; Doc. 29-3]. Conner does not know who made the decision to hire him. 

[Doc. 29-1, 51:1-6].

4. As a part of Conner’s duties as an MHP, Conner completed 

behavioral/mental health assessments, provided regular follow-up to assigned 

patients to monitor their current mental status and functioning, provided crisis 

interventions with daily follow-up as needed, conducted individual and group 

counseling and observed patients to detect psychiatric symptoms, mental 

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deficiencies, abnormal behavior or maladjustment. [Doc. 29-1, 52:24-53:20; Doc. 

29-5].

5. Conner was assigned to work at Santa Rosa Correctional Institution 

(“SRCI”). [Doc. 29-1, 42:2-5].

6. While assigned at SRCI, Conner reported to Dr. Ginger Spaulding (“Dr. 

Spaulding”). [Doc. 29-1, 53:21-23]. Conner also reported to Katy Hall (“Hall”) 

administratively. [Doc. 29-1, 55:13-16].

7. Conner was assigned to the J-Dorm in the Annex of SRCI as of October 

2018. [Doc. 29-1, 56:4-8]. Conner remained in the J-Dorm for the duration of his 

employment at SRCI. [Doc. 29-1, 55:17-56:8].

8. Conner was a salaried employee making $47,500 annually, which 

remained the same throughout his time at SRCI. [Doc. 29-1, 51:7-12].

B. October 9, 2018 Incident 

9. On October 15, 2018, Lauren Gaylord (“Gaylord”), an Activities 

Counselor, submitted an FDOC Incident Report, in which she reported that, on 

October 9, 2018, she “noticed through an unobstructed view a noose made of toilet 

paper hanging from the roll on the railing.” [Doc. 29-1, Doc. 29-6].

10. Gaylord reported this to her supervisor, Dr. Spaulding, on October 11, 

2018. [Doc. 29-1, Doc. 29-6].

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11. Conner did not see the noose. [Doc. 29-1, 66:6-9].

12. The Officer who allegedly made the noose, Office Hollis, was removed 

from the dorm. [Doc. 29-1, 79:12-15, 84:15-20, 87:2-5; Doc. 29-7]. Officer Hollis 

was removed by no later than October 12, 2018. [Doc. 29-1, 79:12-15, 84:15-20, 

87:2-5; Doc. 29-7].

13. Conner cannot identify any acts of racism or retaliation that Officer 

Hollis committed after he was removed from the dorm. [Doc. 29-1, 74:19-75:11].

14. While Officer Hollis was removed from the dorm in which Conner

worked, J-Dorm, following this incident, Conner thought that the Officer should 

have been terminated. [Doc. 29-1, 90:2-12].

15. Conner participated in numerous meetings with MHMHP Management 

and FDOC Management in which they discussed this incident. [Doc. 29-1, 79:16-

80:25, 82:5-83:5].

C. April 2019 Incident And Meeting

16. In or around April 2019, Conner learned that Officer Hollis had not 

been terminated. [Doc. 29-1, 119:16-120:1]. Conner saw the Officer doing a training 

event and subsequently “voiced his concerns” that the Officer should have been fired 

for a “hate crime.” [Doc. 29-1, 90:2-16]. 

17. At some point in April 2019, Conner had a conversation with Sarah 

Brus (“Brus”), MHMHP’s Human Resources Business Partner for the Region in 

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which SRCI located, in which he informed her about “the noose incident and the fact 

that there was nothing being done about it and that we still felt that our safety was 

in danger.” [Doc. 29-1, 117:13-21]. Conner also “verbalized the unfairness of 

having to work in a hostile work environment” to his supervisors and the warden. 

[Doc. 29-1, 118:18-22]. 

18. Also in April 2019, Conner claims that his co-worker Betty Young 

(“Young”) was retaliated against. [Doc. 29-1, 81:1-22]. Conner believed Young 

had witnessed an inmate being beat, filed a report, and was suspended and terminated 

as a result. [Doc. 29-1, 92:21-93:4]. However, Conner did not see this incident. 

[Doc. 29-1, 93:17-19]. Moreover, in her written statement, Young did not state that 

she had witnessed the inmate being assaulted. [Doc. 29-1, 102:24-103:9; Doc. 29-

10]. 

19. The inmate who was allegedly assaulted and the nurse who was present 

both submitted statements saying that the inmate fell off the table and was not 

assaulted. [Doc. 29-11, Doc. 29-12]. 

20. Conner admits that, at the time he testified that he believed Young had 

been retaliated against, he did not have all the information about the situation. [Doc. 

29-1, 106:5-11]. 

21. On April 22, 2019, a meeting was held with the Annex Mental Health 

Department. [Doc. 29-1, 90:2-91:25; Doc. 29-15]. The meeting included the FDOC 

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Warden, Hall, Spaulding, Kristal Ake (“Ake”), Regional Director for MHMHP, as 

well as other members of the FDOC Staff and the MHPs. [Doc. 29-1; Doc. 29-15]. 

The meeting was held to discuss the MHPs’ concerns. [Doc. 29-1, 90:2-91:25].

22. During this meeting, Ake informed the staff that some individuals felt 

uncomfortable in the breakroom due to “heated conversations taking place in the

lunch room, condescending remarks made with loud tone of voices, with some staff 

no longer feeling comfortable to eat lunch in that area.” [Doc. 29-1, 122:15-19, Doc. 

29-15].

23. Conner believes the meeting was retaliatory because they discussed 

“how reports and stuff are being filed inappropriately and everything like that and 

[he] was led to believe that this is what the meeting was about.” [Doc. 29-1, 90:2-

91:25]. Conner considered the meeting “disciplinary.” [Doc. 29-1, 90:2-91:25].

24. Nevertheless, Conner repeatedly admits he was never disciplined 

during his employment at MHMHP. [Doc. 29-1, 57:13-15, 111:15-18]. 

25. Following the meeting, Conner received a letter from the Warden

detailing the procedure for reporting incidents and explaining how they would be 

investigated. [Doc. 29-1, 128:23-129:13; Doc. 29-17]. 

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26. On April 23, 2019, Conner submitted a written complaint to MHMHP’s 

Human Resources alleging “hostile work environment” and “retaliation” as a result 

of the April 22, 2019 meeting. [Doc. 29-14]. The complaint alleged, in part: 

I felt that I was ambushed, threaten, and marginalized even more as 

an African American and a professional following this meeting. I 

believe that this “meeting” was a form of retaliation due to my 

verbalizing the unfairness of having to work in an hostile 

environment. By appearance and definition, I believe that this was a 

form of intimidation/bullying...

[Doc. 29-14]. 

D. July 4th Incident 

27. In July 2019, Conner learned of an incident involving another coworker, Darsell Harris (“Harris”), that he believed was retaliatory and/or racist. 

[Doc. 29-1, 87:14-24]. 

28. Conner was on vacation the day the incident allegedly occurred. [Doc. 

29-1, 131:2-4]. 

29. When Conner returned from vacation, Harris informed him that she had 

had a disagreement with FDOC Officers about the time her group ended, and the

FDOC officers “had threatened to lock her up in the room and beat the crap out of 

her.” [Doc. 29-1, 132:22-133:19]. 

30. The alleged incident was first reported to management on July 9, 2019. 

[Doc. 29-1, 135:7-14]. 

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31. On or before July 10, 2019, FDOC removed the Officers from the JDorm as a result of this incident. [Doc. 29-1,149:14-25; Doc. 29-21]. 

E. Walkout, Suspension and Transfer

32. On July 11, 2019, some of the SRCI MHPs requested a meeting with 

their supervisors to address what they asserted was a hostile work environment. 

[Doc. 29-1, 141:8-10]. 

33. Dr. Spaulding left the meeting early because she felt like she was being 

verbally attacked by the MHPs. [Doc. 29-1, 144:11-14]. 

34. Shortly after the meeting, Conner told Ms. Hall “we will be leaving for 

the day.” [Doc. 29-1, 145:19-146:1]. Conner’s reason for leaving was, at least in 

part, “to protest the environment.” [Doc. 29-1, 146:21-25]. 

35. Six other MHPS (Harlan Wallner, Tanya McIntyre, Tracy Bowen, 

Jillian Bradsell, Henry Conner and Clifton Richard) also walked out of the facility 

after this meeting. [Doc. 29-1, 163:2-12].

36. Conner does not know whether his scheduled patients were seen after 

he left the facility. [Doc. 29-1, 156:18-25]. 

37. All MHPs assigned to the J Dorm on July 11, 2019 left the facility 

following the meeting. [Doc. 29-1, 163:8-12]. 

38. On July 12, 2019, Conner returned to SRCI and was informed he had 

been suspended without pay pending an investigation. [Doc. 29-1, 153:2-20]. 

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39. On or after July 16, 2019, Conner received a suspension letter stating 

that he had been placed on suspension without pay effective July 12, 2019 pending 

the completion of an internal investigation as a result of walking off the job and 

abandoning his patients on July 11, 2019. [Doc. 29-1, 157:1-9; Doc. 29-22]. 

40. All of the other MHMHP employees who walked off the job on July 

11, 2019, Wallner, McIntyre, Bowen, Bradsell, Conner, and Richard were also 

suspended. [Doc. 29-1, 163:2-19]. McIntyre, Bowen, Bradsell, Conner and Richard 

are black but Wallner is not. 

41. All of the individuals who walked out on July 11, 2019 were suspended 

and offered transfers to other facilities. [Doc. 29-1, ¶ 7].

42. Conner is not aware of any other individual who walked out on their 

shift and left their patients uncared for, but was not suspended. [Doc. 29-1, 161:24-

162:2].

43. On July 25, 2019, Conner had a telephone conversation with Brus and 

MHMHP’s H.R. Manager, Lisa Lynch (“Lynch”), in which he informed them he did 

not feel safe at SRCI. [Doc. 29-1, 160:8-161:9; Doc. 29-23].

44. Thereafter, Conner had a conversation with Lynch and Victoria Love 

(“Love”), MHMHP’s Vice President of Operations, in which he was offered a 

transfer to Century Correctional Institution (“Century”). [Doc. 29-1, 164:4-11]. 

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45. Transferring Conner to Century was necessary because Conner told 

Lynch and Brus that he did not feel safe working at SRCI. [Doc. 29-1, 148:9-13; 

160:8-18]. 

46. Conner did not accept the transfer. Rather, on August 1, 2019, Conner 

submitted his resignation. [Doc. 29-1, 165:7-15, Doc. 29-24]. 

47. Love was the ultimate decisionmaker with regard to Conner’s

suspension and transfer. [Doc. 29-30, ¶ 8].

48. Love’s decision to suspend Conner was not based on any retaliatory 

animus. [Doc. 29-30, ¶ 9]

49. Love’s decision to suspend Conner was not based on any racial animus. 

[Doc. 29-30, ¶ 10]

50. Instead, Love made the decision to suspend Conner because he walked 

out of the institution and abandoned his post and patients. [Doc. 29-30, ¶ 6]

51. Love made the decision to offer Conner the transfer to Century because 

Conner indicated that he did not feel safe returning to SRCI. [Doc. 29-30, ¶ 11]

52. Love’s decision to offer Conner the transfer was not based on any 

retaliatory animus. [Doc. 29-30, ¶ 12]

53. Love’s decision to offer Conner the transfer was not based on any racial 

animus. [Doc. 29-30, ¶ 13].

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F. Conner’s Claims

54. Conner claims the April 22, 2019 meeting and July 2019 suspension 

without pay were acts of retaliation and racism. [Doc. 29-1, 76:7-77:19].

55. Conner admits that no one ever made any racist comments to him 

during his employment at MHMHP. [Doc. 29-1, 58:15-18]. Conner also admits that 

he does not recall overhearing any racist comments during his employment at 

MHMHP. [Doc. 29-1, 58:19-21]. 

56. Conner admits that none of his supervisors made any statements 

indicating a retaliatory animus towards him. [Doc. 29-1, 61:5-12]. 

57. Conner also admits that Lynch, Brus, and Love did not make any 

statements showing any retaliatory motive. [Doc. 29-1, 61:22-62:1; 62:8-11; 64:14-

17]. However, Conner claims that Lynch, Brus, and Love demonstrated a “lack of 

a statements to basically show support for their employees.” [Doc. 29-1, 58:19-21, 

61:22-62:1, 62:8-11, 64:14-17]. 

58. Conner admits that he did not ever have any concerns with how his 

supervisors “treated [him] specifically.” [Doc. 29-1, 59:16-22]. However, Conner 

claims he had “a little bit of concern” with “the way the situation was treated.” [Doc. 

29-1, 59:16-22]. 

59. Conner admits that no one at MHMHP subjected to him to acts of 

racism following the alleged noose incident. [Doc. 29-1, 75:12-17]. Instead, Conner 

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“consider[s] retaliation from [his] complaints as an act of racism itself.” [Doc. 29-1, 

75:12-21]. 

II. 

ARGUMENT

A. Summary Judgment Standard 

One of the primary purposes of summary judgment is to isolate and dispose 

of factually unsupported claims. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 

(1986). To that end, the United States Supreme Court has held that the plain 

language of Rule 56(c) of the Federal Rules of Civil Procedure: 

mandates the entry of summary judgment, after adequate time for 

discovery and upon motion, against a party who fails to make a 

showing sufficient to establish the existence of an element essential 

to that party’s case, and on which that party will bear the burden of 

proof at trial. In such a situation, there can be no “genuine issue as to 

any material fact,” since a complete failure of proof concerning an 

essential element of the nonmoving party’s case necessarily renders 

all other facts immaterial. 

Id. at 322-23. 

The party opposing summary judgment may not simply rest upon mere 

allegations or denials, but must make a sufficient showing to establish the existence 

of an essential element to the party’s case, and on which the party will bear the 

burden of proof at trial. Celotex Corp., 477 U.S. at 323-24; Barfield v. Brierton, 883 

F.2d 923, 933 (11th Cir. 1989). If the nonmovant “fails to adduce evidence which 

would be sufficient, when viewed in a light most favorable to the nonmovant, to 

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support a jury finding for the nonmovant, summary judgment may be granted.” 

Lurvey v. Metropolitan Dade County, 870 F. Supp. 1570, 1575 (S.D. Fla. 1994) 

(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-55 (1986)). The burden 

on the nonmoving party is substantial; a mere scintilla of evidence is insufficient to 

defeat a motion for summary judgment. Canty v. Bottacchi, S.A. de Navegacion, 

849 F. Supp. 1552, 1553 (S.D. Fla. 1994) (citing Anderson, 477 U.S. at 251-52).

A. Count I – Race Discrimination

1. Conner cannot show that he was subjected to disparate treatment 

based on his race.

When a plaintiff relies on circumstantial evidence to prove a race 

discrimination claim under Title VII1

, under McDonnell-Douglas, a plaintiff must 

establish a prima facie case of discrimination. A prima facie case of discrimination 

consists of proof that (1) the plaintiff is a member of a protected class; (2) he was 

qualified for his position; (3) he suffered an adverse employment action; and (4) he 

was treated less favorably than a similarly-situated individual outside of his

protected class. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 

36 L. Ed. 2d 668 (1973); Maynard v. Bd. of Regents of Div. of Fla. Dept. of Educ., 

342 F.3d 1281, 1289 (11th Cir. 2003).

 1 Section 1981 and FCRA claims are also evaluated under the McDonnell 

Douglas burden-shifting framework. Bryant v. Jones, 575 F.3d 1281, 1307 (11th 

Cir. 2009); Gossard v. JP Morgan Chase & Co., 612 F. Supp. 2d 1242, 1252 (S.D. 

Fla. 2009).

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Once a plaintiff establishes a prima facie case, the burden shifts to the 

employer to articulate a legitimate business reason for its employment decision, and 

the plaintiff must show that reason is mere pretext for unlawful discrimination. “[A] 

reason cannot be proved to be ‘a pretext for discrimination’ unless it is shown both 

that the reason was false, and that discrimination was the real reason.” Hudson v. 

Blue Cross Blue Shield of Alabama, 431 Fed. Appx. 868, 869 (11th Cir. 2011)

(quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 125 L. 

Ed. 2d 407 (1993)). 

“Provided that the proffered reason is one that might motivate a reasonable 

employer, an employee must meet that reason head on and rebut it, and the employee 

cannot succeed by simply quarreling with the wisdom of that reason.” Chapman v. 

AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000). The Court “must evaluate 

whether the plaintiff has demonstrated such weaknesses, implausibilities, 

inconsistencies, incoherencies, or contradictions in the proffered reason so that a 

reasonable factfinder could conclude that it is unworthy of credit.” Jefferson v. 

Burger King Corp., 505 Fed. Appx. 830, 834 (11th Cir. 2013).

2. The only potential adverse action is Conner’s suspension.

Not all conduct of an employer that negatively affects an employee constitutes 

an adverse employment action. Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 

1238 (11th Cir. 2001). Instead, there must have been a serious change to the terms 

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and conditions of plaintiff’s employment. Id. Corrective action must result in a 

change of the terms and conditions of employment such as reduction in pay, benefits, 

or responsibilities. See Manley v. DeKalb County Georgia, 587 Fed. Appx. 507, 513 

(11th Cir. 2014).

Here, the only potential adverse action is Conner’s suspension.2 Conner’s 

proposed transfer to Century cannot be an adverse employment action because it was 

never accepted and never actually occurred.3 See Baldwin v. Blue Cross/Blue Shield 

of Alabama, 480 F.3d 1287, 1300 (11th Cir. 2007) (holding that an “offer to transfer 

an employee . . . is not an employment action; it is merely an offer”); Alexander v. 

Westbury Union Free Sch. Dist., 829 F. Supp. 2d 89, 108 (E.D.N.Y. 2011) (a 

suggestion that the plaintiff transfer to a different position or even a plan to transfer 

the plaintiff did not constitute a tangible employment action because the transfer 

never actually occurred); Duhe v. U.S. Postal Service, No. 03-cv-746, 2004 U.S. 

Dist. LEXIS 3737, 2004 WL 439890, *11 (E.D. La. Mar. 9, 2004) (because the 

 2 The April 22, 2019 cannot constitute an adverse employment action because it did 

not result in any change to the terms and conditions of Conner’s employment. 

Conner admits he was never disciplined, and his characterization of the meeting as 

a “disciplinary” meeting does not demonstrate any change to the terms and 

conditions of his employment. Davis, 245 F.3d at 1238.

3 Even if the transfer offer was an adverse action, Conner’s claims of discrimination 

and retaliation still fail because MHMHP had a legitimate business reason to transfer 

him because he did not feel safe at SRCI, and Conner cannot show that this reason 

is pretextual. To the contrary, he repeatedly admits he said he did not feel safe at 

SRCI, and Ms. Love made the decision to transfer him on that basis. 

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plaintiff “was simply offered a lateral transfer in an attempt to remedy the 

harassment, and she was subject to no adverse consequences for rejecting that offer, 

[she] cannot raise any genuine issue of material fact with respect to whether a 

'tangible employment action' or 'constructive discharge' occurred”).

3. Conner cannot identify anyone similarly situated who was treated 

more favorably.

Conner’s suspension claim fails on the fourth prong of his prima facie case 

because he cannot identify any comparators who engaged in similarly conduct and 

were not disciplined in the same manner.

In order to establish a “similarly situated” comparator, a plaintiff must show 

that he and the comparator “similarly situated in all material respects.” Lewis v. City 

of Union, GA, 918 F.3d 1213 (11th Cir. 2019) (en banc). This means that a 

comparator must have “engaged in the same basic conduct (or misconduct) as the

plaintiff, . . . will have been subject to the same employment policy, guideline, or

rule as the plaintiff, . . . will ordinarily (although not invariably) have been under the

jurisdiction of the same supervisor as the plaintiff, and . . . will share the plaintiff's 

employment or disciplinary history[.]” Id.

Here, Conner walked out on mentally ill inmate patients. Conner cannot 

identify anyone else who walked out on their shift and left their patients uncared for, 

but who was not suspended. Moreover, Conner was treated in the same manner as 

every other individual who walked out on July 11 and admits that all who walked 

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out on July 11 were suspended, including an employee outside his protected class. 

Conner simply has not identified any individual, who was similarly situated, and 

outside of his race, that walked out on his or her patients without notice and was not 

suspended.

Conner cannot establish a prima facie case because he cannot identify any 

similarly situated comparator as defined in Lewis v. City of Union, supra. Therefore, 

because Conner cannot establish a prima facie case, “summary judgment is 

appropriate.” McQueen v. Ala. DOT., 2019 U.S. App. LEXIS 11778 (11th Cir. 

2019) (citing Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)). 

4. MHMHP had a legitimate business reason for Conner’s suspension.

Assuming arguendo that Conner could establish a prima facie case, which 

Defendants deny, the burden shifts to Defendants to provide a legitimate, nondiscriminatory reason for any alleged adverse action. 

Conner was suspended following walking out on his patients and leaving the 

facility without making arrangements for the care of his patients. Such behavior was 

unprofessional and endangered his patients. See Hatfield v. Bio-Medical 

Applications of Ala., Inc., 2012 U.S. Dist. LEXIS 138361 (M.D. Ala Sept. 4, 2012) 

(plaintiff’s violations of policies and procedures and endangering patient safety a 

legitimate business reason for termination); see also Dougherty v. Mem’l SloanKettering Cancer Ctr., 2002 U.S. Dist. LEXIS 13216 (S.D. N.Y. July 16, 2002) 

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(Plaintiff’s errors that could have endangered patients’ health and safety were a 

legitimate basis for termination).

5. Conner cannot demonstrate pretext.

Conner cannot demonstrate that MHMHP’s legitimate and nondiscriminatory 

reasons for his suspension were mere pretext. See Chapman v. A-1 Transport, 229 

F.3d 1012 (11th Cir. 2000) (en banc); Alvarez v. Royal Atl. Developers, Inc., 610 

F.3d 1253, 1265 (11th Cir. 2010) (“[i]t matters not whether [a plaintiff] has made 

out a prima facie case if [ ] he cannot create a genuine issue of material fact as to 

whether [the defendant]’s proffered reasons for firing h[im] are pretext masking 

discrimination”).

To show pretext, Conner must offer evidence showing “such weaknesses, 

implausibilities, inconsistencies, incoherencies, or contradictions in [Defendant's] 

proffered legitimate reasons for its action that a reasonable fact finder could find

them unworthy of credence.” Combs v. Plantation Patterns, 106 F.3d 1519, 1538 

(11th Cir. 1997) (internal marks omitted). Mere assertions of speculation regarding 

a “discriminatory motive is insufficient.” Turner v. Inzer, 2012 U.S. Dist. LEXIS 

137847, at *5 (N.D. Fla. Sept. 26, 2012) (citing Edwards v. Acadia Realty Trust,

Inc., 141 F. Supp. 2d 1340, 1346-47 (M.D. Fla. Mar. 9, 2001)); see also Brown v. 

Progress Energy, 364 Fed. Appx. 556, 558 (11th Cir. 2010).

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Conner cannot establish pretext unless he shows both that the reasons were

false and that discrimination was the real reason for his adverse employment actions. 

St. Mary’s Honor Ctr., 509 U.S.C. at 515; Flowers v. Troup Cnty. Sch. Dist., 803 

F.3d 1327, 1339 (11th Cir. 2015) (“[c]ontradicting the [employer]’s asserted reason 

alone...no longer supports an inference of unlawful discrimination”); Brooks v. 

County Comm’n, 446 F.3d 1160, 1163 (11th Cir. 2006) (“A plaintiff must show not 

merely that the defendant’s employment decisions were mistaken but that they were 

in fact motivated by race...[A] plaintiff may not establish that an employer’s 

proffered reasons are pretextual merely by questioning the wisdom of the employer’s 

reasons, at least not where...the reason is one that might motivate a reasonable 

employer.” (citation omitted)). Thus, to show that a defendant’s proffered reason 

is pretext, the plaintiff must “present concrete evidence in the form of specific 

facts...” Earley v. Champion Int’l Corp., 907 F.3d 1077, 1081 (11th Cir. 1990) 

(emphases added).

Here, Conner was suspended for walking out on his patients along with six 

other MHPs. He was thereafter offered a transfer because he stated he did not feel 

safe returning to SRCI. Conner admits that he was insistent in his belief that he did 

not feel safe working at SRCI. When questioned in deposition about the basis for 

his race discrimination claim, Conner claimed that he considered alleged retaliation 

to be the same as race discrimination, and that it was really a “lack of” statements in 

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action. However, this testimony falls well short of meeting Conner’s burden of 

proving that the legitimate reasons for his suspension were both false and pretextual. 

See Phuong Nguyen v. Ga. Power Co., 2013 U.S. Dist. LEXIS 10773 (S.D. Ga. 

2013) (granting summary judgment in favor of defendant because it provided a 

legitimate and nondiscriminatory reason that plaintiff could not prove was both false 

and pretextual). 

In addition, Conner cannot show that he prearranged for the care of his 

patients before he left the facility on July 11th. He also cannot prove that MHMHP 

took different actions against white employees. Accordingly, Conner cannot 

establish that both MHMHP’s reasons were false and that race discrimination was 

the real reason for his suspension. Therefore, summary judgment should be granted 

in MHMHP’s favor on Conner’s race discrimination claims.

B. Count II – Retaliation 

To state a claim for retaliation under Title VII, the plaintiff must show “(1) 

[h]e engaged in statutorily protected expression; (2) that [h]e suffered an adverse 

employment action; and (3) that there is some causal relation between the two 

events.” McCann v. Tillman, 526 F.3d 1370, 1375 (11th Cir. 2008) (quotation 

omitted).

Following the Supreme Court’s decision in University of Texas Southwestern 

Medical Center v. Nassar, 570 U.S. 338, 133 S.Ct. 2517, 186 L. Ed. 2d 583 (2013), 

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a plaintiff must show more than temporal proximity between the protected activity 

and his or her adverse action to satisfy the causation element of a prima facie case 

of retaliation. Instead, a plaintiff must establish that his or her protected activity was 

a “but-for” cause of the adverse action by the employer. Nassar, 133 S.Ct. at 2534.

The “but-for” cause element “requires a closer link than mere proximate 

causation, it requires that the proscribed animus have a determinative influence in 

the employer’s adverse decision.” Sims v. MVM, Inc., 704 F.3d 1327, 1335-36 (11th 

Cir. 2013). See also Smith v. City of Fort Pierce, 565 Fed. Appx. 774 (11th Cir. 

2014) (to establish a prima facie case of retaliation, a plaintiff must offer evidence 

from which a reasonable jury might conclude that an employer’s retaliatory animus 

was the “but-for” cause of the adverse action).

If Conner establishes a prima facie case, the burden shifts to Defendants to 

provide a legitimate, non-retaliatory reason for the adverse action. E.E.O.C. v. 

Reichhold Chemicals, Inc., 988 F.2d 1564, 1571-72 (11th Cir. 1993). Once 

Defendants provided such a reason, the burden then shifts back to Conner to prove, 

by a preponderance of the evidence, that the reason was not a true reason, but merely 

pretext for retaliation. Meeks v. Computer Associates Int’l., 15 F.3d 1013, 1019 

(11th Cir. 1994).

Pretext means more than inconsistency; pretext is “a lie, specifically a phony 

reason for some action.” Brown v. Sybase, Inc., 287 F.Supp.2d 1330, 1340 (S.D. 

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Fla. Sept. 23, 2003) (quoting Silvera v. Orange County School Bd., 244 F.3d 1253, 

1261 (11th Cir. 2001)). Whether the reason provided by MHMHP for suspending 

and transferring Conner was pretext for retaliation must be established by Conner

through “significantly probative evidence.” Johnson v. Atlanta Indep. Sch. Sys., 137 

Fed. Appx. 311, 315 (11th Cir. 2005); Clark v. Coats & Clark, Inc., 990 F.2d 1217,

1228 (11th Cir. 1993) (citations omitted).

Conner cannot meet his burden “by simply quarreling with the wisdom of that 

reason.” Wood v. Calhoun Cty. Fl., 626 Fed. Appx. 954, 956 (11th Cir. 2015), 

quoting Chapman v. Al Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc). 

Instead, “the inquiry into whether an employer’s proffered reasons were merely 

pretextual centers on the employer’s beliefs, not the beliefs of the employee or even 

objective reality.” Lopez v. AT&T Corp., 457 Fed. Appx. 872, 874 (11th Cir. 2012); 

Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1266-67 (11th Cir. 2010).

1. Conner cannot establish that the April 22, 2019 meeting was a

materially adverse action

For purposes of a retaliation claim, an “adverse employment action” is any 

action that “well might have dissuaded a reasonable worker from making or 

supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 

548 U.S. 53, 68, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006). The Eleventh Circuit 

has described actionable adverse employment actions as “decisions such as 

termination, failure to hire, or demotion,” Stavropoulos v. Firestone, 361 F.3d 610, 

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617 (11th Cir. 2004); “a serious and material change in the terms, conditions, or 

privileges of employment,” Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 

(11th Cir. 2001) (emphasis omitted); and conduct that “deprives [the employee] of 

employment opportunities, or adversely affects his or her status as an employee,” 

Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000).

Here, Conner claims the April 22, 2019 meeting was retaliatory. Specifically, 

Conner claims that management at the meeting discussed the proper way for making 

reports and complaints and that he considered the meeting disciplinary. However, 

Conner simultaneously and repeatedly admits he was never disciplined during his 

employment. 

Even if Conner’s perception of the meeting was correct, the meeting does not 

rise to the level of a materially adverse employment action. See Verdi v. City of N.Y., 

306 F. Supp. 3d 532, 2018 U.S. Dist. LEXIS 10594, at *5 (S.D.N.Y. Jan. 22, 2018) 

(meeting and subsequent counseling memorandum did not support a Title VII 

retaliation claim); See Bhatti v. Trs. of Boston Univ., 659 F.3d 64, 73 (1st Cir. 2011) 

(holding that allegedly undeserved post-complaint reprimands unaccompanied by 

“tangible consequences” were not materially adverse); Cole v. Illinois, 562 F.3d 812, 

817 (7th Cir. 2009) (holding that a post-complaint improvement plan indicating that 

the plaintiff should “become more aware of her tone” was not retaliatory). Sebastian 

v. City of Chicago, 2008 US Dist. LEXIS 60570 (N.D. Ill. July 24, 2008) (verbal 

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counseling and informal meeting did not rise to the level of materially adverse 

action); Mickelson v. New York Life Ins. Co., 460 F.3d 1304, 1309, 1318 (10th Cir. 

2006) (no materially adverse action based on meeting with three members of 

management in which supervisor became “extremely angry”); see also Breneisen v. 

Motorola, Inc., 512 F.3d 972, 981-82 (7th Cir. 2008) (no materially adverse action 

based [**40] on meetings with supervisor in which supervisor questioned reasons 

for excessive FMLA leave and criticized plaintiff for taking leave); Devin v. 

Schwan's Home Serv., Inc., 491 F.3d 778, 787 (8th Cir. 2007) (no materially adverse 

action based on meeting with supervisor even though meeting was “undoubtedly 

uncomfortable” for plaintiff); Ahern v. Shinseki, 2009 U.S. Dist. LEXIS 50214, 2009 

WL 1615402, at *6 (D.R.I. June 9, 2009) (no materially adverse action based on 

required, regular meetings with supervisor in which plaintiff was “berated” did not 

constitute materially adverse action); Nolan v. Swartz Campbell, LLC, 2008 U.S. 

Dist. LEXIS 15501, 2008 WL 598291, at *20 (W.D. Pa. Feb. 29, 2008) (no 

materially adverse action based on meeting with supervisor in which plaintiff felt 

apprehension and intimidated); Nagle v. RMA, The Risk Mgmt. Ass'n., 513 F. Supp. 

2d 383, 391 (E.D. Pa. 2007) (no materially adverse action based on “heated” meeting 

with supervisor which left plaintiff suffering from emotional distress).

Accordingly, because Conner cannot show the meeting was a materially 

adverse action, his retaliation claim fails. 

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2. Conner cannot establish the necessary casual connection.

Conner’s claims with respect to his suspension also fail because he cannot 

establish his prima facie case. Specifically, Conner cannot establish a causal 

connection between his alleged protected activity and his suspension. As addressed 

above, Conner must show more than mere temporal proximity. Conner must offer 

evidence from which a reasonable jury might conclude that an employer’s retaliatory 

animus was the “but-for” cause of the adverse action. Conner must show that the 

desire to retaliate was the but-for cause of the challenged employment action, i.e., 

Conner must show that the unlawful retaliation would not have occurred without the 

alleged wrongful action or actions of the employer. Nassar, 570 U.S. 338, at 358-

359.

Conner cannot make the requisite showing that MHMHP would not have 

taken the same decision, but-for his complaints. Conner submitted complaints to 

MHMHP verbally in April 2019 and in writing on April 23, 2019. However, Conner 

has no evidence that these complaints were in any way causally related to his

suspension. Furthermore, Love, the ultimate decisionmaker in the suspension, did 

not retaliate against Conner by suspending. Instead, Love suspended Conner 

because he walked out of the institution and abandoned his post and patients.

Moreover, there is no evidence that the suspension following the walk-out was 

based on a retaliatory animus. Instead, the record is clear that Conner did not 

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prearrange his leaving early, nor does Conner even know who cared for his patients 

on the day that he walked out. Furthermore, Love, the ultimate decisionmaker on 

the suspension, did not consider any complaints made by Conner, or the fact that the 

MHPs held a meeting to discuss their concerns, in her decision to suspend the MHPs, 

including Conner. Instead, the decision was a result of Conner endangering his 

mentally ill patients by walking out on them and making no arrangements for their 

daily care. Accordingly, Conner cannot make the required but-for showing and, 

therefore, his prima facie case fails.

3. MHMHP had legitimate and nonretaliatory reasons for the meeting

and suspension.

Here, even assuming that Conner could offer evidence demonstrating that 

Defendants’ retaliatory animus was the “but for” cause of the meeting and his

suspension and were sufficient to set forth a prima facie case, which he cannot, as 

addressed above, Defendants have legitimate and non-retaliatory reasons. Conner 

was asked to attend the meeting to discuss the MHPs concerns, including proper 

reporting of incidents and complaints. In addition, Conner was suspended for 

abandoning his mentally ill patients and was offered a transfer because he did not 

feel safe at SRCI. 

4. Conner cannot prove pretext.

To establish pretext, Conner must show that the “proffered reason is not the 

true reason for the employment decision.” Jackson v. State of Ala. State Tenure 

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Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005). Moreover, Conner must prove that 

each and every proffered reason for his suspension and his transfer is a pretext. If 

he does not proffer sufficient evidence of pretext regarding each of the defendant 

employer’s articulated reasons, the employer is entitled to summary judgment. 

Combs v. Plantation Patterns, Meadowcraft, Inc., 106 F.3d 1519 (11th Cir. 1997) 

(there must be “sufficient evidence to demonstrate the existence of a genuine issue 

of fact as to the truth of each of the employer's proffered reasons for its challenged 

action”).

Conner cannot point to any other individual that walked out on their patients, 

but who was not suspended. Conner cannot show that the reason for his suspension 

was false – Conner admits that he left early and admits that he does not whether his 

patients were cared for after he left. Accordingly, Conner cannot carry his burden 

of demonstrating pretext and summary judgment should be granted in favor of 

Defendants on Conner’s Title VII, Chapter 760, and Section 1981 retaliation claim.

C. Count III - Hostile Work Environment.

To establish his claim for a racial or retaliatory hostile work environment, 

Conner must show that his “workplace [was] permeated with discriminatory 

intimidation, ridicule, and insult that [was] sufficiently severe or pervasive to alter 

the conditions of [her] employment and create an abusive working environment.” 

Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002)

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(quoting Harris v. Forklift Sys. Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 

295 (1993)) (internal marks omitted); Gowski v. Peake, 682 F.3d 1299, 1312 (11th 

Cir. 2012) (recognizing claim for retaliatory hostile work environment). 

To avoid summary judgment, Conner must present evidence from which a 

jury could find that he is a member of a protected class; he was subject to unwelcome 

harassment; the harassment was based on his race or his complaints of 

discrimination; the harassment was severe or pervasive enough to alter the terms and 

conditions of his employment and create a discriminatorily abusive working 

environment; and Defendants are responsible for the harassment under a theory of 

either direct or vicarious liability. Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 

1248-49 (11th Cir. 2014); Edwards v. Prime, Inc., 602 F.3d 1276, 1300 (11th Cir. 

2010).

Here, Conner alleges that he worked in a racially and retaliatory hostile work 

environment; however, he admits no one ever made any racist or retaliatory

comments to him and that he never even overheard any such comments. Conner 

also admits that he was not concerned with how his supervisors treated him 

“specifically,” but rather a concern with other actions with respect to other 

employees. Conner alleges that the October 2018 noose incident was an incident 

that had subjected him to a racially hostile work environment. However, Conner 

admits that he did not see the noose. Moreover, Conner admits that the Officer who 

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allegedly hung the noose was removed from J-Dorm and that he did not see him 

again for over 6 months, until April 2019. 

Such “through the grapevine or second-hand conduct is not sufficiently severe 

or pervasive so as to create a hostile work environment.” Mason v. S. Ill. Univ. at 

Carbondale, 233 F.3d 1036, 1046 n.9 (7th Cir. 2000); Williams v. Ruskin Co., 

Reliable Div., 2012 U.S. Dist. LEXIS 26840, at *14 (M.D. Ala. Mar. 1, 2012)

(“[T]he fact that many of the allegations used to bolster [plaintiff's] claims are based 

on comments and incidents he heard second-hand though his co-workers, and were 

neither experienced nor witnessed directly by him, weakens the severity of his 

allegations”).

Conner’s allegations of a retaliatory hostile work environment are also 

insufficient as a matter of law. The same actions that form the basis for Conner’s 

retaliation claim appear to form the basis for his retaliatory hostile work environment 

claim. Specifically, Conner claims he was subjected to a retaliatory environment 

because of the April 22, 2019 meeting, his July 2019 suspension, and the fact that 

he was offered a transfer which he believed was unreasonable. These discrete acts, 

standing alone, cannot form the basis of a hostile work environment claim. Gowski, 

682 F.3d at 1312 (citing Davis v. Coca–Cola Bottling Co. Consol., 516 F.3d 955, 

970 (11th Cir. 2008) (“Discrete acts cannot alone form the basis of a hostile work 

environment claim.”) (emphasis in original). 

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Conner’s allegations are simply insufficient to establish a prima facie case of 

a racially or retaliatory hostile work environment. See Washington v. Kroger Co., 

218 Fed. Appx. 822, 825 (11th Cir. 2007) (no hostile environment when co-worker 

allegedly hung a plastic figurine representing the employee with a rope and called 

him names such as “boy”); Ray v. Lee Brass Foundry, LLC, 2017 U.S. Dist. LEXIS 

212715 (N.D. Fla. Sept. 19, 2017) (the plaintiff’s relationship to the rope was too 

tenuous where “a rope fashioned as a noose was seen hanging in the maintenance 

area at Lee Brass. Many of the employees were ‘distraught’ about it. Plaintiff never 

saw the noose while it was hanging, but she did ‘glance[] at it’ after it had been taken 

down and was about to be thrown in the trash”). Accordingly, Conner simply cannot 

establish that under the totality of the circumstances, the conduct was sufficiently 

severe and pervasive. See Cunningham v. Austal, US.A., L.L.C, 2011 U.S. Dist. 

LEXIS 100567, at *6 (S.D. Ala. Sept. 7, 2011) (“[t]he Eleventh Circuit has not held 

that the temporary display of a noose by a rogue employee creates a per se hostile 

work environment”). 

D. Conner Was Not Constructively Discharged

To the extent that Conner is attempting to assert a claim for constructive 

discharge,4 a constructive discharge occurs when an employer “deliberately makes 

 4 Conner does not specifically assert a constructive discharge in his Complaint, 

although he alleges he resigned “due to the discrimination, harassment, and 

retaliation to which he had been subjected and Defendants’ failure to provide a safe 

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an employee’s working conditions intolerable and thereby forces him to quit his

job.” See Bryant v. Jones, 575 F.3d 1281, 1298 (11th Cir. 2009) (quoting Munday 

v. Waste Mgmt. of N. Am., 126 F.3d 239, 244 (11th Cir. 1996)). Courts ask if the 

work environment is “so unbearable that a reasonable person . . . would be compelled 

to resign.” Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350,1363 (11th Cir. 1994). 

A plaintiff’s subjective feelings are irrelevant. See Hipp v. Liberty Nat'l Life Ins. 

Co., 252 F.3d 1208, 1231 (11th Cir. 2001) (“[i]n evaluating constructive discharge

claims, we do not consider the plaintiff's subjective feelings”).

The standard for constructive discharge is “quite high.” Id. It is even higher 

than the hostile-work-environment standard. See Penn. State Police v. Suders, 542 

U.S. 129, 134, 124 S. Ct. 2342, 159 L. Ed. 2d 204 (2004). Along with showing 

harassment altered the terms and conditions of his employment, a plaintiff must 

show “a causal link between the allegedly intolerable conditions and [his]

resignation.” Green v. Brennan, 136 S. Ct. 1769, 1781, 195 L. Ed. 2d 44 (2016). 

Furthermore, a plaintiff must give his employer enough time to remedy the situation 

before resigning. Kilgore v. Thompson & Brock Mgmt., Inc., 93 F.3d 752, 754 (11th 

Cir. 1996) (“[a] constructive discharge claim will generally not be found if the 

employer is not given sufficient time to remedy the situation”).

 

and hostile work environment-free work environment.” Further, at his deposition, 

Conner testified the proposed transfer was “an unreasonable accommodation.” [Doc. 

29-1, 164: 24-165:3]. 

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Here, Conner resigned on August 1, 2019, alleging that he had been subjected 

to “consistent harassment, discrimination, and retaliation from Centurion’s 

administrators and DOC leadership” and was “given the option to resign, be fired or 

take a position at another facility that is more than an hour from [his] home.” [Doc. 

29-24]. 

Despite Conner’s statements, Conner has failed to show that he was subjected 

to any harassment, discrimination or retaliation during his employment as discussed 

above. To the contrary, Conner effectively forced his own transfer from SRCI by 

repeatedly stating that he did not feel safe working there, ostensibly because of the 

presence of FDOC Officers over whom neither Centurion nor MHMHP had any 

control whatsoever with respect to placement. But, when MHMHP offered him the 

opportunity to transfer to another facility, he declined and resigned. Conner cannot 

show “a causal link between the allegedly intolerable conditions and [his] 

resignation.” Green, 136 S. Ct. at 1781. Conner’s resignation was precipitated by 

his own actions and statements that he did not feel safe. 

Accordingly, for these reasons as well as the same reasons his hostile work 

environment claim fails, his constructive discharge claim likewise fails. 

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III.

CONCLUSION

For the foregoing reasons, Defendants respectfully request that the Court enter 

an Order granting summary judgment in their favor.

CERTIFICATE OF WORD LIMIT

I hereby certify that there are 7,137 words in this document and that it has 

been typed in 14-point font.

Respectfully submitted,

/s/Catherine H. Molloy

Richard C. McCrea, Jr.

Florida Bar No. 351539

Email: mccrear@gtlaw.com

Catherine H. Molloy

Florida Bar No. 003500

Email: molloyk@gtlaw.com

Cayla M. Page

Florida Bar No. 1003487

Email: pagec@gtlaw.com

GREENBERG TRAURIG, P.A.

101 E. Kennedy Boulevard

Suite 1900

Tampa, FL 33602

Telephone: (813) 318-5700

Fax: (813) 318-5900

Attorneys for Defendants

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ACTIVE 53512988v1

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been 

electronically transmitted using the CM/ECF System for filing and transmittal to the 

following ECF registrant(s) on this November 5, 2020 to:

Gaye L. Huxoll

TEIN MALONE PLLC

3059 Grand Avenue 

Coconut Grove, FL 33133

ghuxoll@teinmalone.com

fchiong@teinmalone.com

/s/Catherine H. Molloy

Attorney

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