IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

CHRISTINE JOHNSON,

Plaintiff,

vs. CASE NO. 4:09-cv-306/RS/WCS

STATE OF FLORIDA, DEPARTMENT

OF ELDER AFFAIRS,

Defendant.

_________________________________________/

ORDER

Before me are Defendant‟s Motion for Summary Judgment (Doc. 33) and 

Plaintiff‟s Response and Memorandum of Law in Opposition (Doc. 41).

Plaintiff has sued Defendant for alleged race discrimination and retaliation 

pursuant to Chapter 760, Florida Statutes, 42 U.S.C. §2000e et seq. (Title VII), and 

42 U.S.C. §1981a. Plaintiff alleges that she was treated differently than her white 

co-workers and “was fired on both the basis of her race and as a form of 

retailiation for reporting discriminatory hiring practices.” (Doc. 15, ¶6).

Defendant has moved for summary judgment.

I. STANDARD OF REVIEW
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The basic issue before the court on a motion for summary judgment is 

“whether the evidence presents a sufficient disagreement to require submission to a 

jury or whether it is so one-sided that one party must prevail as a matter of law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S. Ct. 2505, 2512 (1986). 

The moving party has the burden of showing the absence of a genuine issue as to 

any material fact, and in deciding whether the movant has met this burden, the 

court must view the movant‟s evidence and all factual inferences arising from it in 

the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 

U.S. 144 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). 

Thus, if reasonable minds could differ on the inferences arising from undisputed 

facts, then a court should deny summary judgment. Miranda v. B & B Cash 

Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank 

& Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, 

a mere „scintilla‟ of evidence supporting the nonmoving party's position will not 

suffice; there must be enough of a showing that the jury could reasonably find for 

that party. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing

Anderson, 477 U.S. at 251). 

II. ANALYSIS

A. Race Discrimination
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Without detailed analysis, I find that Plaintiff has provided ample evidence 

from which a jury could find Defendant liable for race discrimination. The 

depositions of supervisor Sam Fante and manager Diane Glover support Plaintiff‟s 

claim of discrimination. (Docs. 43-7, 43-8). While it is possible that both Fante 

and Glover possess ulterior motives in providing their deposition testimony, the 

amount of weight to be given a witness‟ testimony is a matter within the sole 

discretion of the jury. Because Plaintiff has provided sufficient evidence that the 

jury could reasonably rely upon to determine discrimination, I must deny 

Defendant‟s motion for summary judgment as it pertains to the count of racial 

discrimination. 

B. Retaliation

In order to prevail on a claim for retaliation under Title VII, Plaintiff must 

first present a prima facie case by establishing the following: 1) she engaged in 

activity protected by the statute; 2) she suffered an adverse employment action; 

and 3) that there is a causal connection between the protected activity and the 

adverse employment decision. See Little v. United Tech., 103 F.3d 956 (11th

Cir.1997)); Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir.1993). In 

connection with establishing protected activity, Plaintiff must also show that she 

believed in good faith that Defendant‟s employment practices were unlawful and 
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that her belief was objectively reasonable. Little, 103 F.3d at 960. If Plaintiff can 

establish a prima facie case, Defendant must proffer a legitimate, non-retaliatory 

reason for the adverse employment action; however, Plaintiff bears the ultimate 

burden of proving by a preponderance of the evidence that Defendant's articulated 

reason is a pretext for prohibited retaliatory conduct. Olmsted v. Taco Bell Corp.,

141 F.3d 1457, 1460 (11th Cir.1998). There is no dispute that Plaintiff‟s 

termination constitutes an adverse employment action. Plaintiff, however, fails to 

establish either the first or third elements of her prima facie case.

The first element of Plaintiff‟s prima facie case of retaliation requires her to 

establish that she engaged in statutorily protected opposition conduct. To do so, 

Plaintiff must show that she opposed conduct by the employer based upon an 

objectively reasonable belief that the employer was engaged in unlawful 

employment practices. E.g., Harper v. Blockbuster Ent. Corp., 139 F.3d 1385, 

1388 (11th Cir. 1998); Brown v. Sybase, Inc., 287 F. Supp 2d 1330, 1346-47 (S.D. 

Fla. 2003). In addition, a plaintiff must show that the decisionmaker responsible 

for the adverse action was actually aware of the employee‟s protected opposition at 

the time the decisionmaker took the adverse action. Brown, 287 F. Supp 2d at 

1347. See also Brungart v. BellSouth Telecommunications, Inc., 231 F.3d 791, 799 

(11th Cir. 2000); Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997). A court
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will not presume that a decisionmaker was motivated to retaliate by something 

unknown to him or her. Brungart, 231 F.3d at 799. Thus, in order to constitute 

protected opposition activity, a plaintiff must, at the very least, communicate her 

belief that illegal discrimination is occurring. Webb v. R & B Holding Co., 992 F.

Supp. 1382, 1389 (S.D. Fla. 1998) (“It is not enough for the employee merely to 

complain about a certain policy or certain behavior . . . and rely on the employer to 

infer that discrimination has occurred.”).

In the instant case, the record shows that Plaintiff did not complain expressly 

about racial discrimination. Plaintiff claims that her July 7, 2007, memo to 

Secretary Beach (Doc. 43-10) sufficiently points out differential treatment. While 

it is true that the memo to Mr. Beach addresses differential treatment in that it 

describes how Plaintiff was excluded from discussions about the program 

reorganization, the memo does not discuss racial discrimination, nor indicate that 

she felt she was being discriminated against on account of her race. Such 

complaints of differential treatment within the workforce are not protected by Title 

VII. Plaintiff also suggests that her July 5, 2007, memo to Marcy Hajdukiewicz 

discusses the Department‟s discriminatory hiring practices. The July 5 memo is a 

laundry list of Plaintiff‟s accomplishments, provided to Hajdukiewicz in an attempt 

to save her job. Buried within that list is a notation that on April 11, 2006, Plaintiff 
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participated in the “[d]evelopment of the CARES Personnel guide to review the 

hiring process and ensure discriminatory practices discontinue.” (Doc. 43-9 at 3). 

Courts have consistently required that an employee‟s complaints must clearly put 

an employer on notice of a violation of the law. See Higgins v. New Balance 

Athletic Shoe, Inc., 194 F.3d 252, 262 (1st Cir. 1999) (no protected activity where 

plaintiff complained of supervisor's treatment but never stated a belief that it 

violated Title VII or any other law); Gleason v. Mesirow Fin., 118 F.3d 1134 (7th

Cir. 1997) (granting summary judgment and finding that general complaints absent 

specific allegations of sexual harassment do not constitute protected activity); 

Barber v. CSX Distrib. Servs., 68 F.3d 694 (3d Cir. 1995) (letter to HR 

complaining about unfair treatment but not specifically complaining about 

discrimination is not protected activity). See also Conrad v. Bd. of Johnson County 

Com'rs, 237 F.Supp.2d 1204, 1243-44 (D. Kan. 2002) (granting summary 

judgment and finding that where employee complained regarding employer‟s 

accusations of erratic behavior and fitness for duty evaluation but never 

complained of ADA violation or disability discrimination, she did not engage in 

protected opposition and cannot have held a reasonable belief that her complaints 

were protected by the ADA). In no way could the July 5 memo put Defendant on 

notice that she was opposing discrimination with the Department or that she was 
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making a formal complaint. Therefore, as a matter of law, Plaintiff‟s conduct does 

not rise to the level of statutorily protected opposition.

Furthermore, Plaintiff did not make even the minimum showing to establish 

the causation element of a prima facie claim of retaliation, i.e., that “the employer 

was actually aware of the protected expression at the time it took adverse 

employment action.” Brown, 287 F. Supp. 2d at 1347. See also Clover v. Total 

Sys. Servs., Inc., 176 F.3d 1346, 1354 (11th Cir. 1999); Raney v. Vinson Guard 

Serv., 120 F.3d 1192, 1197 (11th Cir. 1997); Goldsmith v. City of Atmore, 996 F.2d 

1155, 1163 (11th Cir. 1993). A court will not presume that a decisionmaker was 

motivated to retaliate by something unknown to him or her. Brungart, 231 F.3d at 

799. As noted above, Plaintiff‟s conduct cannot as a matter of law be deemed to 

have put her employer on notice that he was engaging in protected opposition 

conduct, and Defendant cannot be deemed to have been aware of any other type of 

protected activity by Plaintiff at the time they took the complained-of employment 

actions. Consequently, there is no evidence of any causal link between the 

complained-of actions and Plaintiff‟s allegedly protected conduct, and, under the 

instant facts and circumstances, no inference of a causal link could ever arise. E.g., 

Raney, 120 F.3d at 1198-99 (plaintiff‟s failure to set forth significant probative 

evidence regarding knowledge of employee‟s opposition or participation conduct 
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constitutes failure to carry burden of proof and entitles employer to summary 

judgment).

C. Hostile Work Environment

In Plaintiff‟s deposition, she alleges for the first time that she was subjected 

to hostile work environment due to her race. In her response to Defendant‟s

Motion for Summary Judgment, Plaintiff includes one sentence stating that there is 

evidence of a hostile work environment. (Doc. 41, p. 10). 

“[I]t is well-settled that the plaintiff cannot amend h[er] complaint with a 

later filed brief in opposition to a summary judgment motion.” Coleman v. Keebler 

Co., 997 F. Supp. 1094, 1101 (N.D. Ind. 1998) (citing Auston v. Schubnell, 116 

F.3d 251, 255 (7th Cir. 1997); Hang On. Inc. v. City of Arlington. 65 F.3d 1248, 

1255-56 (5th Cir. 1995) (recognizing that it is inappropriate for a party to assert a 

claim for the first time in response to a summary judgment motion).

At this late stage in the litigation, Plaintiff is attempting to create an issue of 

material fact in opposition to Defendant‟s Motion for Summary Judgment by 

improperly asserting an entirely new theory of discrimination not asserted in the 

Amended Complaint (Doc. 15). Pursuant to the well- pleaded complaint rule, 

Plaintiff is required to plead each theory of discrimination in a separate count. 

Fed. R. Civ. P. 10(b); see also Hadley v. RadioShack Corp., 2002 WL 1159871 
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(S.D. Fla. April 17, 2002). Because Plaintiff did not properly plead the theory of 

hostile work environment in the Amended Complaint, any hostile work 

environment claim is stricken. Even if it were permissible for Plaintiff to amend 

her complaint at this stage of the proceedings, Plaintiff has provided no proof that 

the issue of hostile work environment was ever raised, thereby suggesting that the 

claim is barred by Plaintiff‟s failure to exhaust her administrative remedies. See 

Crawford v. Babbitt, 186 F.3d 1322, 1326 (11th Cir. 1999).

III. CONCLUSION

IT IS ORDERED:

1. Defendant‟s Motion for Summary Judgment (Doc. 33) is DENIED as 

to Count I (Race Discrimination);

2. Defendant‟s Motion for Summary Judgment (Doc. 33) is GRANTED 

as to Count II (Retaliation);

3. Plaintiff may not proceed on a theory of hostile work environment.

ORDERED on March 30, 2010.

/S/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE