1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JAMES W. DAVIS,

Case No. 4:11-cv-00107-RH-WCS

Plaintiff,

vs.

DEPARTMENT OF JUVENILE JUSTICE, 

STATE OF FLORIDA,

Defendant.

_______________________________________/

DEFENDANT’S REPLY TO PLAINTIFF’S RESPONSE IN OPPOSITION TO 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Defendant, DEPARTMENT OF JUVENILE JUSTICE, STATE OF FLORIDA 

(“Department” or “Defendant”), by and through its undersigned counsel and pursuant to Fed. R. 

Civ. P. 56 and this Court’s February 15, 2012 Minute Entry (Doc. 48), files this reply to 

Plaintiff’s Response in Opposition to Defendant’s Motion for Summary Judgment and Response 

in Opposition to Defendant’s Supplemental Memorandum in Support of Motion for Summary 

Judgment and in support thereof states:

I. SUMMARY OF ARGUMENT

This Court should grant Defendant’s Motion for Summary Judgment because Plaintiff is 

unable to proffer evidence creating a disputed issue of material fact. To avoid summary 

judgment in favor of the employer in a Title VII action, a plaintiff “must introduce significantly 

probative evidence showing that the asserted reason is merely a pretext for discrimination.” 

Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1228 (11th Cir. 1993); Brooks v. County Com’n of 

Jefferson County, Alabama, 446 F.3d 1160, 1163 (11th Cir. 2006). To show that the legitimate, 

Case 4:11-cv-00107-RH-CAS Document 57 Filed 03/19/12 Page 1 of 10
2

non-discriminatory reason offered by the defendant is a pretext for discrimination, the plaintiff 

must meet the proffered reason head on and rebut it. Harrison v. IBM Corp., 378 Fed. Appx. 

950, 954 (11th Cir. 2010) (citation omitted). A reason is not a pretext for discrimination unless 

“it is shown both that the reason was false, and that discrimination was the real reason.” 

Johnson v. City of Mobile, Alabama, 321 Fed. Appx. 826, 830 (11th Cir. 2009) (emphasis in 

original) (St. Mary’s Honor Ctr. V. hicks, 509 U.S. 502, 515 (1993).

Plaintiff, in his responses, fashions a series of six different legal theories in hopes that 

one might prove sufficient to deny Defendant’s Motion for Summary Judgment, including: 

“False Reason,” “Shifting Articulation,” “Deviation from Policies and Procedures,” 

“Bootstrapping,” “Subjective Criteria,” and a “Cat’s Paw” theory. Each theory is an attempt to 

divert the Court’s attention from the legitimate, nondiscriminatory and only reason for Plaintiff’s 

termination: his work performance. In addition, each theory lacks sufficient supporting evidence

to prove that unlawful discrimination was ever an element of any employment decision (as they 

must), and altogether fail to give reason for this Court to deny Defendant’s Motion. This Court 

should hold that Plaintiff has not created a genuine issue of material fact despite his attempts to 

do so through speculation, conjecture, and merely colorable and not significantly probative

evidence, and grant Defendant’s Motion in full. See Vega v. Invsco Group, Ltd., 432 Fed. Appx. 

867, 869 (11th Cir. 2011). Defendant briefly responds to each theory in turn.

1. False Reason

Plaintiff asserts in his response, “once the employer’s justification has been eliminated, 

discrimination may well by [sic] the most likely alternative explanation, especially since the 

employer is in the best position to put forth the actual reason got its decision.” (Emphasis 

supplied, internal quotations omitted). However, Plaintiff proffers no evidence worthy of 

Case 4:11-cv-00107-RH-CAS Document 57 Filed 03/19/12 Page 2 of 10
3

impeaching or eliminating the Defendant’s legitimate and nondiscriminatory reason for 

terminating Plaintiff’s employment. Plaintiff introduces testimony from Department employees 

(most of whom were either hired by Davis and were under his supervision or were not supervised 

by Mr. Davis1) to suggest that Plaintiff was conscientious, dedicated, and a good supervisor. 

This testimony is irrelevant to the decision to be made by this Court and is otherwise not 

significantly probative of pretext for race discrimination. The evidence shows that these basic, 

overbroad character traits were not criteria used by the Department in evaluating the 

performance of its employees.

2

 Further, there is no evidence in the record that any of these 

witnesses have personal knowledge as to the contents of Plaintiff’s 2007-08 or 2008-09 

performance evaluations or that they had any direct involvement in ensuring that the Plaintiff 

was meeting the Department’s standards for performance.

Thus, Plaintiff’s attempt to skirt around the specifically enumerated performance 

concerns set forth in Plaintiff’s 2007-08 and 2008-09 performance evaluations fails to meet 

“head on” the legitimate, nondiscriminatory reason for Plaintiff’s termination set forth by the 

Defendant. 

 With respect to Mr. Tallon, this Court should disregard any of his testimony related to 

Plaintiff’s job performance. This is because Mary Mills became Plaintiff’s two years after the 

Plaintiff had stopped reporting to Mr. Tallon.3 There is no record of Carolyn Floyd ever doing a 

performance evaluation on the Plaintiff for the years 2005-06 and 2006-07. Additionally, while 

Plaintiff has submitted an affidavit from Ms. Floyd, he has not presented any evidence that she 

had any knowledge of Plaintiff’s work performance under Mary Mills. It would be pure 

 

1 Deposition of Suzanne Chambers: p. 7, lines 3 – 6; Deposition of Debra Sasser p. 25: lines 4 – 5; Deposition of 

Wanda Horgan: p. 18, lines 8 – 17; Deposition of Greg Brown: p. 10, lines 6 – 7.

2

Plaintiff’s 2007-08 and 2008-09 performance evaluations.

3

Deposition of James W. Davis: p. 23, line 23 to p. 25, line 8; Deposition of Mary Mills: p. 6, lines 13 – 16.

Case 4:11-cv-00107-RH-CAS Document 57 Filed 03/19/12 Page 3 of 10
4

conjecture, at best, to simply assume that Davis would continue to perform his duties exactly the 

same way under Tallon or Floyd as he would under Mills. Plaintiff offers no evidence to 

suggest that his performance was maintained at the same level from the time Mr. Tallon was his 

supervisor through the time he was supervised by Ms. Mills. Instead, he asks the Court to take 

his word that he performed at a perfectly consistent level from 2005 through 2009 under three 

different supervisors. 

Shelley McKinney, who was not an employee under Davis’s supervision, explained that

she was involved in two complaints concerning Davis’s work performance.4 McKinney, the 

Chief Probation Officer for Circuit 2 at the time, received the two complaints from her 

supervisor, Paula Polhill.5 This corroborates Mary Mills’s testimony that she received 

complaints from stakeholders outside of the Residential Services Division concerning the 

Plaintiff.6 Thus, The legitimate, nondiscriminatory, reason for the termination of Plaintiff’s 

employment is not baseless, as the Plaintiff claims, and the Defendant’s reason has not been 

eliminated nor even called into question. See Reeves v. Sanderson Plumbing Prods., Inc. at 147. 

Other testimony suggesting that Ms. Mills “set Davis up to fail,” such as what Plaintiff 

intimates from Debra Sasser’s deposition excerpt, is pure conjecture and irrelevant with respect

to the documentation of Plaintiff’s problems with his work performance over the span of almost 

two years under Mary Mills. The Plaintiff’s attempt in this case to manufacture a conclusory and 

self-serving assertion in his response should be disregarded by this Court. 

Plaintiff makes a bare assertion in his Response to Defendant’s Supplemental 

Memorandum (Doc. 55) that Defendant “speaks only in generalities with regard to issues with 

Plaintiff’s work performance.” However, the evidence shows that Mary Mills set forth very 

 

4 Deposition of Shelley McKinney: p. 9, lines 13 – 24. 

5

Deposition of Shelley McKinney: p. 6, lines 20 – 24; p. 6, lines 13 – 24; p. 11, lines 5 – 6.

6 Deposition of Mary Mills: p. 52, lines 5 – 24.

Case 4:11-cv-00107-RH-CAS Document 57 Filed 03/19/12 Page 4 of 10
5

explicit concerns about Plaintiff’s performance in multiple documents.7 Plaintiff ironically 

points out a specific reason in page 7 of his Response to the Supplemental Memorandum that 

“Mills claimed there were issues with Plaintiff’s subordinates, primarily, Deb Sasser, and that 

Plaintiff did not correct these deficiencies.” 

Instead of proffering any evidence that he did not have performance issues, Plaintiff 

provides self-serving hearsay in his affidavit, alleging that Mary Mills admitted her complaints 

were baseless. There is no credible evidence suggesting that Mary Mills made any such 

admissions or that she ever found that complaints made against the Plaintiff were without merit. 

Therefore, this Court should grant Defendant’s Motion for Summary Judgment because Plaintiff 

cannot demonstrate that the Defendant’s proffered reasons for Plaintiff’s termination are 

unworthy of credence.

2. Shifting Articulation

If an employer offers different reasons for terminating an employee, those reasons must 

be inconsistent in order to constitute evidence of pretext. Zaben v. Air Products & Chemicals, 

Inc., 129 F.3d 1453 (11th Cir. 1997). In Zaben v. Air Products & Chemicals, Inc., a disparate 

treatment case, the court held that the differing reasons articulated by the employer were not 

inconsistent. In Zaben, although the defendant company gave differing explanations for the 

selection of employees to be discharged by saying, on the one hand, that seniority played no role 

in the process and that only an employee's performance was considered while, on the other hand, 

asserting that the plaintiff was discharged because he had the least seniority, the district court 

 

7

For example, the March 24, 2008 Written Reprimand provides, “Over the last seven weeks you and I have 

discussed several areas of concerns [sic] relating to your job performance. We have discussed several incidents 

where the commitment/transfer paperwork did not arrive at the program. I have spoken with you about complaints I 

have received about your staff not working with stakeholders. There have been incidents of your staff not following 

through with the transfer and placement of youth.” Also, the Commitment Management Administrative Review for 

the 14th circuit lists 13 specific issues and areas for improvement requiring attention. Other documents listing 

specific deficiencies include Plaintiff’s 2007-08 and 2008-09 evaluations, two 2008 performance reviews, and the 

Commitment Management Administrative Review for the 1st Judicial Circuit.

Case 4:11-cv-00107-RH-CAS Document 57 Filed 03/19/12 Page 5 of 10
6

found that these differing reasons were not necessarily inconsistent.

Plaintiff attempts to depict the Defendant as having provided differing reasons for its 

decision to terminate the Plaintiff. However, there is documentation throughout the 16 months 

prior to Plaintiff’s termination that consistently sets forth problems with Plaintiff’s work 

performance.

8

 The affidavits and deposition testimony of Mary Mills and Darryl Olson both 

explain that the reason for Plaintiff’s termination was his work performance.9 Even assuming 

that the Defendant propounded differing explanations for Plaintiff’s termination, it is not 

inconsistent to state that an employee’s services are no longer needed the employee has a 

documented history of deficiency over the span of nearly a year and a half. Further, the 

Defendant has no control over the fact that a different agency, the Agency for Workforce 

Innovation, described the purpose for separation as “lack of work.” Accordingly, this Court 

should hold that Plaintiff fails to create pretext because he cannot present evidence that the 

Defendant articulated different, inconsistent reasons for his termination.

3. Deviation from Policies and Procedures

In his response, Plaintiff fails in attempting to show that Defendant deviated from the 

Department’s procedures for termination of an employee. Plaintiff purports to demonstrate some 

insidious conspiracy against him by noting that Wanda Horgan, personnel liaison for the North 

Region of Residential Services, was not the employee to process Plaintiff’s termination 

documentation. What he fails to mention is that Ms. Horgan and Mr. Davis had been working in 

the exact same office building since 1992, interacting with each other on a daily basis.

10

 He also 

incorrectly asserts that the employee who did handle the termination documents, Jeanine Rhodes, 

 

8

See March 24, 2008 Written Reprimand; Commitment Management Administrative Reviews for 1st and 14th

Circuits; 2008 Performance Reviews; 2007-08 and 2008-09 performance evaluations.

9

Affidavit of Mary Mills; Affidavit of Darryl Olson; Deposition of Mary Mills: p. 17, line 24 – p. 18, line 4; 

Deposition of Darryl Olson: p. 13, lines 6 – 10.

10 Deposition of Wanda Horgan: p. 18, line 6 to p. 19, line 7.

Case 4:11-cv-00107-RH-CAS Document 57 Filed 03/19/12 Page 6 of 10
7

was not involved in personnel issues. This is false, as Ms. Rhodes is the business manager

located in Tallahassee, not Pensacola, who supervised Ms. Horgan.11 

Plaintiff cites no Department policy or procedure that proscribes Ms. Horgan’s supervisor 

from handling the termination documentation for the Plaintiff. It is a far stretch to suggest that 

utilizing the personnel liaison’s supervisor means that the actual procedures of the decisionmaking process had been altered. There is no evidence in the record that any personnel process 

in this matter was ever adulterated. 

Finally, Plaintiff asserts in his response to the Supplemental Memorandum that the 

Commitment Reviews12 are not relevant to the issues of Plaintiff’s termination and makes the 

simple assertion, without argument or evidence in support, that they are pretextual. There is no 

evidence that Mary Mills did not consider the Commitment Reviews in recommending 

termination. Assuming arguendo that she did not consider the content of the Commitment 

Reviews, the record shows that her supervisor, Darryl Olson, did in fact consider the 

Commitment Reviews in approving Plaintiff’s termination.13 Plaintiff has not presented any 

evidence, let alone significantly probative evidence, demonstrating that reliance on the 

Commitment Reviews in making the decision to terminate Plaintiff was pretext for race 

discrimination. Therefore, this court should hold that the Plaintiff has failed to create a genuine 

issue of material fact.

4. Bootstrapping

Plaintiff has offered no significantly probative evidence that Ms. Mills deliberately or 

otherwise handicapped the Plaintiff from sufficiently meeting the Department’s standards for 

work performance. Moreover, Plaintiff does not present any records that demonstrate the 

 

11 Deposition of Wanda Horgan: p. 20, lines 22 – 24; Deposition of Mary Mills: p. 33, lines 18 – 25.

12 Commitment Management Administrative Reviews for 14th and 1st Circuits.

13 Deposition of Darryl Olson: p. 13, lines 6 – 19.

Case 4:11-cv-00107-RH-CAS Document 57 Filed 03/19/12 Page 7 of 10
8

workload borne by the commitment management staff under Plaintiff’s supervision. Subjective 

opinion testimony from Carolyn Floyd’s affidavit aside, Plaintiff has presented no evidence of 

any deliberate understaffing of the commitment management program under his supervision. 

The affidavit of Carolyn Floyd merely serves to laundry list a bill of particulars that “Mr. 

Davis was faced with several challenges,” “was short staffed,” “had to not only perform his 

supervisory duties but had to perform the overflow work that his staff could not due [sic] to their 

work load.” What her affidavit is unable to do is establish that: (1) she had personal knowledge 

of Plaintiff’s performance under Mary Mills; (2) the other commitment management staffs in the 

state had demonstrably lesser workloads or that other OMC Chiefs did not have to handle 

“overflow work”; and (3) Mary Mills purposefully arranged her resources (and had the requisite 

authority to do so) to under-staff Davis and affect his performance or that Mary Mills caused the 

challenges she alleges he faced. As it otherwise stands, the content of Ms. Floyd’s affidavit fails 

to directly respond to or rebut the Defendant’s proferred reason for Plaintiff’s termination.

Instead, the record reflects that Ms. Mills consistently documented her efforts to bring to 

Davis’s attention the problems reported to her from neutral, third parties concerning the 

organization and communication of his staff. Ms. Mills repeatedly communicated with the 

Plaintiff to help outline a path for the Plaintiff’s improved performance.14 Therefore, this Court 

should hold that Plaintiff has failed under this theory to create a genuine issue of material fact.

5. Subjective Criteria

Plaintiff presents no evidence that he was subjected to different policies and procedures 

for evaluations and disciplinary actions from other Department employees. Instead, he asks this 

Court to hold in suspicion the Department’s standard evaluation criteria and forms. Plaintiff 

 

14 See March 24, 2008 Written Reprimand; Commitment Management Administrative Reviews for 1st and 14th

Circuits; 2008 Performance Reviews; 2007-08 and 2008-09 performance evaluations.

Case 4:11-cv-00107-RH-CAS Document 57 Filed 03/19/12 Page 8 of 10
9

further asserts that Ms. Mills “punished” him multiple times within the same time period for the 

same offenses. This is a gross mischaracterization of the record. Plaintiff received a written 

reprimand on March 24, 2008.15 The reprimand specifically cites Plaintiff’s violations of Rules 

60L-36.005(3)(a), and (c), F.A.C. and explains the deficiencies in Plaintiff’s work performance 

and the need for improvement in certain enumerated areas. There is no other evidence in the 

record of any “punishment.” Thus, this Court should hold that Plaintiff has failed to create a 

genuine dispute of material fact under this theory.

6. Cat’s Paw

Plaintiff’s final theory alleges that Assistant Secretary Darryl Olson and Deputy 

Secretary Rod Love blindly and without question approved the recommendation that he be 

terminated. However, the record shows that Darryl Olson had repeatedly conferred with Mary 

Mills about Plaintiff’s performance issues and had independently taken into consideration the 

problems identified in two Commitment Management Administrative Reviews conducted in 

Davis’s region.16 Gene McMahon, not Mary Mills, conducted these reviews.17 

Plaintiff also asserts that Mr. Olson and Mr. Love “immediately approved her request to 

fire Davis.” This assertion has no basis in the record. The memorandum signed by Mr. Olson 

was sent to his office on July 6, 2009, but his signature is dated July 21, 2009.18 

As for Rod Love, the Defendant explained in its Supplemental Memorandum (Doc. 51) 

that Mr. Love was directly involved in the review process before initiation of terminations, 

looked into the reasons for termination behind every recommendation that came to his desk, and 

 

15 March 24, 2008 Written Reprimand

16 Deposition of Darryl Olson: p. 13, line 2 – p. 17, line 8; p. 20, lines 15 – 23.

17 Deposition of Darryl Olson: p. 14, lines 7 – 17.

18 July 6, 2009 Memorandum to Darryl Olson.

Case 4:11-cv-00107-RH-CAS Document 57 Filed 03/19/12 Page 9 of 10
10

had denied or modified requests for termination while acting as Deputy Secretary.19 Further, Mr. 

Love testified that he had no reason to believe he had not given a thorough review of the request 

to terminate the Plaintiff.20 Thus, Rod Love was not a “rubber stamp.”

Because the Plaintiff is unable to bring forth any disputed issue of material fact in relying 

solely on conjecture, speculation and merely colorable evidence, Plaintiff has failed to provide 

significantly probative evidence showing the Defendant’s asserted reason is merely a pretext for 

discrimination or that the underlying reason for Plaintiff’s termination was his race. 

Accordingly, this Court should grant Defendant’s Motion for Summary Judgment in full.

DATED this 19th day of March 2012.

Respectfully submitted,

/s/Jeffrey S. Howell

Jeffrey S. Howell

Phipps & Howell

Florida Bar No.: 0793840

201 South Monroe Street

4

th Floor

Tallahassee, Florida 32301

Attorney for Defendant

State of Florida

Department of Juvenile Justice 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 19th day of March, 2012, I electronically filed 

Defendant’s Reply to Plaintiff’s Response in Opposition to Defendant’s Motion for Summary 

Judgment with the Clerk of Court, in the United States District Court for the Northern District of 

Florida, Tallahassee Division, by using the CM/ECF system which will send a notice of 

electronic filing to Plaintiff’s attorneys Erika E. Goodman, Erika E. Goodman, P.A., 2931 Kerry 

Forest Parkway, Suite 202, Tallahassee, Florida 32309 and Marie A. Mattox, Marie A. Mattox, 

P.A., 310 East Bradford Road, Tallahassee, Florida 32303.

/s/Jeffrey S. Howell

Jeffrey S. Howell

 

19 Deposition of Rod Love: p. 8, line 25 to p. 9, line 18; p. 20, lines 20 – 23; p. 10, line 10 to p. 11, line 9.

20 Deposition of Rod Love: p. 18, lines 14 – 22.

Case 4:11-cv-00107-RH-CAS Document 57 Filed 03/19/12 Page 10 of 10