ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

MARK E. WALKER, District Judge.

Pending before the Court is Defendant's Motion for Summary Judgment, ECF No. 55.

This is an employment discrimination case. Toriano Peterson, a male, sues his former employer, the Corrections Corporation of America ("CCA"), for gender discrimination and retaliation. Peterson alleges that after he reported that he was sexually harassed by a female coworker, CCA discriminated and retaliated against him by moving him to the night shift.

After careful review, this Court finds that Peterson's discrimination claim fails as a matter of law, but there are disputed issues of material fact on the retaliation claim. Summary judgment is therefore due to be granted in part and denied in part.

I. BACKGROUND

Plaintiff Toriano Peterson, a male, began working as a Correctional Officer at the Bay Correctional Facility in 1998. ECF No. 57-1 at p. 153. In January 2013, another officer, Christopher Jones, invited Peterson join a conversation with him and a third officer, Miranda Uphoff. Id. at 212-213. Uphoff made several comments to Peterson that he found offensive—she told Peterson that he was on her "fuck buddy list," shared the intimate details of her sex life with boyfriend, told her that boyfriend "doesn't fuck [her] right," and said that she is forced to finish masturbating in the bathtub. Id. at 200-07. She later had another discussion with Peterson, where she repeatedly told him that he was "sexy." Id.

Peterson reported Uphoff's sexual harassment in a verbal complaint on January 21, 2013, and filed a formal incident report on January 27, 2013. Id. at 167-168, 191; ECF No. 57-2. Uphoff then filed an incident report against Peterson, accusing him of sexual harassment as well. ECF No. 57-6. Two supervisors had a meeting with Uphoff and Peterson on January 29, 2015, and immediately afterward transferred Uphoff to a different building. ECF No. 57-1 at 165, 170-72.

Following the meeting, Peterson and Jones continued to complain about one another. Id. at 162, 216; ECF No. 57-8 at p. 39-40. A supervisor met with both Peterson and Jones on February 1, 2015, and after the meeting separated the two and moved them both to the night shift. ECF No. 57-1 at 174-178; 216.

Peterson worked the night shift for approximately six weeks before he was transferred back to his old schedule. Id. at 166; ECF No. 64-10.

Peterson's Second Amend Complaint alleges two claims against CCA.1 Count I alleges disparate treatment gender discrimination.2 Count II alleges retaliation.

II. DISCUSSION

CCA argues that both of Peterson's claims—gender discrimination and retaliation—fail as a matter of law. It argues that the undisputed facts show that Peterson has not established a prima facie case of discrimination or retaliation and that even if he did, CCA's legitimate actions were not a pretext for discrimination or retaliation.

It is unlawful for an employer to discriminate against employees in hiring or firing on the basis of gender. See 42 U.S.C. § 2000e-2; § 760.10, Fla. Stat.3 Additionally, it is illegal for an employer to retaliate against employees who have formally complained of discrimination based on their gender. 42 U.S.C. § 2000e-3; § 760.10, Fla. Stat.

Peterson has not presented any direct evidence of gender discrimination or retaliation; he relies only on circumstantial evidence. Therefore, his claims may be analyzed under the circumstantial evidence framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Under this framework, the plaintiff first has the burden of establishing a prima facie case of discrimination, which creates a rebuttable presumption that the employer acted illegally. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004). When the plaintiff establishes a prima facie case, which creates the presumption of discrimination, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. Id. If the employer satisfies its burden by articulating one or more reasons, then the presumption of discrimination is rebutted, and the burden of production shifts to the plaintiff to offer evidence that the alleged reason of the employer is a pretext for illegal discrimination. Id.

However, establishing 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. Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). Rather, the plaintiff will always survive summary judgment if she presents circumstantial evidence that creates a triable issue concerning the employer's discriminatory intent. 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.

A. Count I—Disparate Treatment Gender Discrimination

CCA first argues that Peterson did not establish a prima facie case for discrimination, and even if he did, CCA's legitimate reasons for their actions were not a pretext to discriminate against him.

Here, assuming without deciding that Peterson could make out a prima facie case of discrimination,4 he has not proffered any evidence from which a jury could reasonably infer that CCA's decision to move him to the night shift was a mere pretext to discriminate against him based on his gender.

To show pretext, a plaintiff must demonstrate that the proffered reason was not the true reason for the adverse action, either by directly showing that the discriminatory reason more likely motivated the decision or by indirectly showing that the proffered explanation is unworthy of credence. Jackson v. State of Alabama State Tenure Comm'n, 405 F.3d 1276, 1289 (11th Cir. 2005). A plaintiff must produce enough evidence to allow a reasonable finder of fact to conclude that the defendant's articulated reasons for its decision are not believable. Id.

The crux of Peterson's argument is that when they accused each other of sexual harassment, Uphoff—a female—was moved to a different building to which she had previously asked to be transferred anyway, while Peterson—a male—was moved to the undesirable night shift. Other than the ostensibly disparate treatment of Peterson and Uphoff with respect to their shift reassignments, Peterson has produced no evidence whatsoever to imply that the decisionmakers were motivated by anti-male animus in making the decision and that the decision was merely a pretext to invidiously discriminate against Peterson because of his gender.5

Moreover, CCA proffered a legitimate reason for the apparent disparate treatment. It is undisputed that CCA moved Peterson to the night shift a few days after it moved Uphoff to a different building, ECF No. 57-1 at 165, 174-76, and CCA claims it did so in order separate Peterson and Chris Johnson, who continued to bicker with one another after Uphoff was transferred. See ECF No. 64-1, at p. 40; ECF No. 57-15 at 16.6 Peterson offered no meaningful evidence to undermine or contradict this contention (at least in the context of gender discrimination), other than his own rank speculation. See ECF No. 57-1 at p. 165-166 ("Q: Right. But you stayed where you were and she was transferred out. A: (Indicating affirmatively.) Q: If Chief Holland said the reason he moved you and Mr. Jones to midnight is because the two of you were bickering . . . would you disagree with that? . . . A: I would disagree.").7 The mere fact that Uphoff received a more desirable alternative shift than Peterson is not enough, standing alone, for a reasonable jury to conclude that CCA's decision was a mere pretext for its officers to discriminate against Peterson because he is a man.

In sum, Peterson has put forward no evidence to suggest that CCA's stated explanation for his move to night shift was "not believable" and that the move was merely a pretext to discriminate against him based on his gender. Summary judgment on Count I is therefore appropriate.

B. Count II—Retaliation

CCA next argues that Peterson did not establish a prima facie case for retaliation, and even if he did, CCA's legitimate reasons for their actions were not a pretext to discriminate against him.

1. The Prima Facie Case

To establish a prima facie case of retaliation under Title VII, a plaintiff must show that (1) he engaged in protected expression; (2) he suffered an adverse employment action; and (3) there is a causal connection between the expression and the adverse action. Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000).

Here, Peterson has presented enough evidence of retaliation to make out a prima facie case.

First, Peterson engaged in protected expression. Peterson complained to his supervisors that he was being sexually harassed by a co-worker and thus subjected to a hostile work environment. Title VII protects individuals who have filed informal complaints internally to their supervisors. Saffold v. Special Counsel, Inc., 147 F. App'x 949, 951 (11th Cir. 2005).

CCA argues that Peterson's belief that he was subjected to a hostile work environment was not reasonable. An employee who seeks protection under the opposition clause must have a "good faith, reasonable belief" that her employer has engaged in unlawful discrimination. Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th Cir. 1999). The objective reasonableness of an employee's belief that her employer has engaged in an unlawful employment practice must be measured against existing substantive law. Id.

In order to prevail on a hostile work environment claim, a plaintiff must, among other things, show that the harassment was sufficiently "severe or pervasive" to alter the conditions of her employment and create an abusive working environment. Watkins v. Bowden, 105 F.3d 1344, 1355 (11th Cir. 1997). In assessing the objective component, courts consider the totality of the circumstances, including (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002).

Here, taking the disputed facts in the light most favorable to him, Peterson engaged in protected activity because he had good faith, reasonable belief that he was subjected to a hostile work environment when Uphoff made vulgar and unwelcome statements to Peterson, including vivid descriptions of her sex life and masturbation habits. ECF No. 57-1 at 200-207; 212-213. She also called him "sexy" multiple times on another occasion, and continued to attempt to communicate with him by phone. Id. There is no need to decide whether Uphoff's conduct actually constituted actionable sexual harassment; the conduct, taken in light of existing law, was "close enough" to support an objectively reasonable belief that it did. Clover, 176 F.3d at 1351. After all, Peterson is "not a lawyer, and thus cannot be expected to know what the law requires or does not require."8 Nelson v. Chattahoochee Valley Hosp. Soc., 731 F.Supp.2d 1217, 1234 (M.D. Ala. 2010). A reasonable person could believe that Uphoff's conduct at least came "[some]where near" actionable sexual harassment, and such a claim would not be "completely groundless." Taylor v. Cardiovascular Specialists, P.C., 4 F.Supp.3d 1374, 1380 (N.D. Ga. 2014) (citations and quotations omitted).

Second, Peterson suffered an adverse employment action. In the context of a Title VII retaliation claim, a materially adverse action is one that might well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Crawford v. Carroll, 529 F.3d 961, 974 (11th Cir. 2008). This standard is "more liberal" than the standard for an adverse employment action in the substantive discrimination context. Id.

Here, CCA's action of transferring Peterson to the undesirable night shift, standing alone, could dissuade a reasonable employee from engaging in protected activity and thus constitute and adverse employment action.9 See Booth v. Pasco Cnty., Fla., 829 F.Supp.2d 1180, 1191 (M.D. Fla. 2011) ("Several cases have found that an involuntary transfer to a significantly less desirable location, and/or shift can alone be sufficient to constitute an `adverse employment action' under the new relaxed standard announced in Burlington.").

Third, Peterson has shown a causal connection between the protected activity and the adverse employment action. The temporal proximity between Peterson's complaint of sexual harassment and the transfer to the night shift is sufficient to establish a causal connection. See Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) (noting that one-month gap between protected activity and adverse event has been held sufficient to establish causal connection).

2. Pretext

CCA has, again, put forth a legitimate, non-discriminatory reason for its actions against Peterson: it claims that it did so to separate Peterson and Chris Johnson, who continued to bicker in the wake of Peterson's sexual harassment allegation.

Here, however, Peterson has put forth enough evidence of retaliatory animus that a reasonable jury could infer that CCA's decision to transfer him to the night shift could have been a pretext to retaliate against him for complaining about Uphoff's sexual harassment.

The record, taken in the light most favorable to Peterson, shows that Peterson's supervisors were frustrated and angry that Peterson was pursuing his sexual harassment claim. For example, Correctional Counselor Brenda Johnson testified that shortly after Peterson made the complaint, Holland made the unusual move of personally asking her to write Peterson up for an unrelated disciplinary infraction. ECF No. 64-4 at p. 17-18. Chief of Security Ronnie Holland's statement to Peterson and Chris Johnson that "Y'all and this sexual harassment incident got this facility turned upside down," ECF No. 57-1 at p. 175, as well as his insinuations that he would retaliate if Peterson attempted to go over his head to complain about the hardships caused by being on the night shift, id. at p. 188, could also be construed to show his motivation in moving Peterson to an undesirable shift as punishment for complaining about sexual harassment. Similarly, Chief of Unit Management Luis Rosa's decision to try to talk Peterson out of pursuing the complaint, ECF No. 64-1 at p. 33; ECF No. 57-1 at p. 178, could be evidence of his distaste for Peterson's claim.

A reasonable jury could infer from the statements and actions of CCA's officers regarding its treatment of Peterson—as well as the timing of these actions with respect to his complaint—that CCA decided to move Johnson to the night shift in response to Peterson's protected activity of complaining about sexual harassment. Restated, the record could plausibly be interpreted to show that CCA's supervisors were unhappy and frustrated with Peterson's decision to report Uphoff's sexual harassment, so they swiftly moved him to the undesirable night shift in response.

Peterson has thus produced enough evidence of retaliatory animus that reasonable jury could find that CCA's proffered reasons were "not believable" and "not the true reason" for moving him to the night shift, Jackson, 405 F.3d at 1289, and that CCA's decision was in fact a pretext to retaliate against him for filing the complaint. Summary judgment as to Count II is therefore denied, and the claim will proceed to trial.

IV. CONCLUSION

CCA's motion for summary judgment is due to be granted in part and denied in part. Peterson has failed to present any evidence from which a reasonable jury could infer that he was discriminated against because of his gender, and that claim fails as a matter of law. However, a reasonable jury could infer that CCA retaliated against him for complaining that he suffered sexual harassment.

For the reasons stated,

IT IS ORDERED:

SO ORDERED.