IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

CAROLYN ANN MILLER, 

 Plaintiff, 

 

v. Case No.: 4:20cv514-MW/MAF

EBS SECURITY, INC., and

PRINTELLA BANKHEAD, 

Defendants. 

_________________________/

ORDER REJECTING IN PART REPORT AND RECOMMENDATION

This Court has considered, without hearing, the Magistrate Judge's Report and 

Recommendation, ECF No. 40. The Magistrate Judge recommends that this Court 

grant Defendants’ motion for summary judgment, ECF No. 34, because Plaintiff has 

not identified any disputed material fact as to any of her claims. This Court disagrees. 

This is an employment discrimination case. While a close call—and although 

Plaintiff’s claims may be weak—the record evidence, and all reasonable inferences 

drawn therefrom in the light most favorable to Plaintiff, create a disputed issue of 

material fact as to whether Plaintiff’s employer terminated her due to her sex, or in 

retaliation for complaining about discrimination. Although the Magistrate Judge 

reported that Plaintiff’s affidavit is inconsistent with her deposition testimony, this 

Court does not find that Plaintiff attempted to change her deposition testimony such 

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that it would discount her affidavit. See Tippens v. Celotex Corp., 805 F.2d 949, 953 

(11th Cir. 1986) (“A definite distinction must be made between discrepancies which 

create transparent shams and discrepancies which create an issue of credibility or go 

to the weight of the evidence.”). However, the inconsistencies that the Magistrate 

Judge identified in the report and recommendation are fodder for cross-examination 

at trial. Additionally, this Court is mindful that it is not permitted to weigh 

conflicting evidence or draw any reasonable inferences in Defendants’ favor, as 

Defendants are the moving parties here.

With respect to Plaintiff’s claims against EBS Security, Inc., neither party 

disputes that Plaintiff is a member of a protected class because she is a female, nor 

does anyone dispute that she suffered an adverse employment action—termination. 

This Court also agrees with the Magistrate Judge’s determination that Plaintiff was 

qualified to do the job. Contrary to the Magistrate Judge, however, this Court 

concludes that Plaintiff has identified record evidence demonstrating a triable issue 

as to whether she was treated worse and, ultimately, terminated due to her sex—or, 

alternatively, because she complained about discrimination. Based on this record, a 

reasonable jury could find that Plaintiff was the only female security guard employed 

at the Panama City location, Plaintiff’s lieutenant treated her worse than her White 

and Black male coworkers, that Plaintiff’s employer’s CEO travelled to Panama City 

to investigate Plaintiff’s and other’s complaints about the lieutenant there, and that

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Plaintiff was terminated shortly after she complained about discrimination by her 

lieutenant to her employer’s CEO. Plaintiff’s asserted “failure to produce a 

comparator does not necessarily doom [her] case.” Lockheed-Martin Corp., 644 F.3d 

at 1328. 

What is important at the summary-judgment phase is not whether the plaintiff 

can establish a prima facie case, but whether a triable issue exists. See id. “A triable 

issue of fact exists if the record, viewed in a light most favorable to the plaintiff, 

presents ‘a convincing mosaic of circumstantial evidence that would allow a jury to 

infer intentional discrimination by the decisionmaker.’” Id. (quoting Silverman v. 

Bd. of Educ., 637 F.3d 729, 734 (7th Cir. 2011)). Here, Plaintiff has presented that 

convincing mosaic and summary judgment is denied as to EBS Security, Inc., with 

respect to Plaintiff’s theories of gender discrimination and retaliation.

As to Plaintiff’s theories of hostile work environment and race discrimination, 

the record, and all reasonable inferences drawn therefrom in Plaintiff’s favor, do not 

create triable issues of fact. As to her hostile work environment theory, Plaintiff has 

failed to come forward with evidence demonstrating that she was subject to conduct 

that was objectively severe and pervasive such that it would support a claim for 

disparate treatment based on a hostile work environment. While Plaintiff may have 

subjectively perceived her lieutenant’s behavior to be severe and pervasive, this 

record does not create a triable issue as to whether his conduct was objectively severe 

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and pervasive, considering such factors as the frequency of the conduct, the severity

of the conduct, whether his conduct was physically threatening or humiliating rather 

than a mere offensive utterance, and whether his conduct unreasonably interfered 

with Plaintiff’s job performance. See Johnson v. Booker T. Washington 

Broadcasting Serv., Inc., 234 F.3d 501, 509 (11th Cir. 2000) (noting that “Title VII 

‘does not prohibit all verbal or physical harassment in the workplace,’ and ‘does not 

reach genuine but innocuous differences in the ways men and women routinely 

interact with members of the same sex and the opposite sex’ ”). As to Plaintiff’s race 

discrimination claim, the record and all reasonable inferences in Plaintiff’s favor do 

not support her theory that her lieutenant discriminated against her because of her 

race. Instead, the record demonstrates, and a jury could find, that Plaintiff was treated 

worse than both her Black and White male coworkers. She points to no additional 

evidence that would allow a reasonable inference that her alleged mistreatment and 

termination were because of her race as opposed to her gender or some other reason. 

With respect to Plaintiff’s claims against Ms. Bankhead, EBS Security’s CEO, 

this Court agrees with Defendants that Plaintiff may only proceed against Ms. 

Bankhead as an agent of Plaintiff’s former employer. See ECF No. 34 at 30; Busby 

v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991) (“We think the proper method 

for a plaintiff to recover under Title VII is by suing the employer, either by naming 

the supervisory employees as agents of the employer or by naming the employer 

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directly.”). Having named Plaintiff’s former employer directly, her claims against 

Ms. Bankhead are duplicative and due to be dismissed.

IT IS ORDERED: 

The report and recommendation, ECF No. 40, is rejected in part. 

Defendants’ motion for summary judgment, ECF No. 34, is GRANTED in part and 

DENIED in part. Plaintiff’s claims of gender discrimination and retaliation may 

proceed against EBS Security, Inc. Plaintiff’s claims against Ms. Bankhead are 

DISMISSED. Plaintiff’s claims based on hostile work environment and race 

discrimination are DISMISSED. However, this Court does not direct entry of partial 

judgment on the issues decided in this Order under Rule 54(b). The Clerk shall set 

this matter for a telephonic hearing. At the hearing, the parties should be prepared to 

discuss their availabilities for trial. 

SO ORDERED on November 30, 2022. 

 s/Mark E. Walker ____

 Chief United States District Judge

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