Filed: Aug. 11, 2005
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT AUGUST 11, 2005 No. 05-10372 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 03-01699-CV-T-26-EAJ BRIAN A. JERONIMUS, Plaintiff-Appellant, versus POLK COUNTY OPPORTUNITY COUNCIL, INC., LOTTIE S. TUCKER, Defendants-Appellees. _ Appeal from the United States District Court for the Middle District of Florida _ (August 11, 2005) Before CARNES, HULL and MARCUS,
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT AUGUST 11, 2005 No. 05-10372 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 03-01699-CV-T-26-EAJ BRIAN A. JERONIMUS, Plaintiff-Appellant, versus POLK COUNTY OPPORTUNITY COUNCIL, INC., LOTTIE S. TUCKER, Defendants-Appellees. _ Appeal from the United States District Court for the Middle District of Florida _ (August 11, 2005) Before CARNES, HULL and MARCUS, C..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 11, 2005
No. 05-10372 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-01699-CV-T-26-EAJ
BRIAN A. JERONIMUS,
Plaintiff-Appellant,
versus
POLK COUNTY OPPORTUNITY COUNCIL, INC.,
LOTTIE S. TUCKER,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 11, 2005)
Before CARNES, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Brian A. Jeronimus, a white male, appeals the district court's order granting
summary judgment in favor of defendants Polk County Opportunity Council
(“PCOC”) and Lottie Tucker (“Tucker”) on his claims of race and sex
discrimination and retaliation in violation of Title VII, the Florida Civil Rights Act
(“FCRA”), and 42 U.S.C. § 1981. After review, we affirm.
I. BACKGROUND
PCOC is a non-profit agency that provides social and economic services to
assist low-income families, children, seniors, and persons with disabilities. On
February 7, 2000, PCOC hired Jeronimus as its Director of Finance. In this
position, Jeronimus was responsible for overseeing all of PCOC's financial matters,
including PCOC’s administration of the federal Head Start and Community Service
Block Grant (“CSBG”) programs. Lottie Tucker, PCOC’s Executive Director,
interviewed and recommended Jeronimus for employment because of his
experience in non-profit agency financial management, specifically Head Start
funding.1
A. Jeronimus’s Performance Deficiencies
1. Memos Addressing Performance Concerns
On April 5, 2000, shortly after Jeronimus began his employment, Tucker
1
Head Start is an early childhood education program for three and four year-old children,
after which, the children are prepared to begin kindergarten.
2
expressed concerns about the way in which he interacted with another PCOC
employee. In a memo to his personnel file, Tucker recounted her efforts to resolve
a conflict between Jeronimus and Elaine Dustin, a woman who was then
Jeronimus’s accounting supervisor. In her August, 2000 evaluation of Jeronimus,
Tucker indicated that Jeronimus met or exceeded expectations in all categories, but
noted that he should work on his communication skills.
On March 21, 2001, Tucker sent Jeronimus a memo expressing her concerns
over several financial matters. Specifically, Tucker noted a transfer of agency
funds between unrelated accounts, the failure to report to her the existence of a
cash flow problem, the failure to complete correctly a line of credit application,
and the delegation of research work to PCOC’s outside accounting firm. Tucker
ended the letter emphasizing that “[t]hese are serious concerns, which need to be
handled expeditiously.”
In a May 16, 2001 memo to Jeronimus, Tucker expressed her concerns over
his management of staff members. Specifically, she addressed an instance of
intimidation by Jeronimus toward his staff members after they complained about
him and the delegation of tasks that he should be handling. Tucker also noted that
Jeronimus failed to complete properly a PCOC report. In her December, 2001
performance evaluation of Jeronimus, though, Tucker again indicated that
3
Jeronimus met or exceeded expectations in all categories; however, she also noted
“[n]ot enough staff supervision. . . . [d]oes not get reports completed in a timely
manner . . . [a]ttend required meetings on time [or] . . . [k]eep his staff informed.”
On December 7, 2001, Tucker sent Jeronimus a memo, outlining five
concerns which needed to be discussed. Specifically, Tucker noted: (1) that
financial reports were consistently prepared late; (2) that Jeronimus was
consistently late for meetings; (3) that monthly departmental meetings were not
being held despite Tucker’s request; (4) that Jeronimus’s staff felt that important
decisions were being improperly delegated from him to them; and (5) that
Jeronimus reportedly had been borrowing money from staff members.
2. Written Warnings
On January 2, 2002, Tucker sent Jeronimus a warning letter. In that letter,
Tucker noted that Jeronimus turned in a report to a PCOC auditor with incorrect
figures, blamed the error on a subordinate, and left the auditor alone in the building
without informing the auditor that he was leaving for the day. In addition, Tucker
noted a specific instance in which Jeronimus was not following the Head Start
administrative accounting guidelines properly. Tucker concluded by adding that
“incorrect figures and bad audits could cost this agency grant funds and I do not
plan to let that happen. If this should occur again, you leave me no alternative but
4
to place you on suspension without compensation.”
On May 13, 2002, Tucker sent a Jeronimus written warning expressing her
concerns about his general preparedness. Tucker noted that Jeronimus had failed
to come prepared to a meeting with a PCOC auditor. In addition, Tucker indicated
that he had been untimely in submitting reports to the PCOC Finance Committee,
Policy Council, and Board of Directors. Tucker concluded by adding, “I will not
allow you to put this agency at risk by your lack of preparation. This is your
second warning. If you do not have a satisfactory explanation, you will be placed
on three (3) day suspension.”
3. Financial Mismanagement
To ameliorate a cash flow problems in the CSBG program, Jeronimus
improperly let the CSBG account borrow from the Head Start account.2 In
addition, he floated checks from the Head Start account while there were
insufficient funds to make payment. On July 24, 2002, Tucker received notice
from the bank that a PCOC check in the amount of $16,489.00 had been returned
for insufficient funds. The following day, Tucker sent a written warning to
Jeronimus indicating that deliberately issuing bad checks is not acceptable and
2
The CSBG program uses a different budget than the Head Start program. CSBG funds
are provided by the federal government but dispersed through the Florida Department of
Community Affairs (“FDCA”).
5
noting that Jeronimus had “neglected to inform [Tucker] that [he was] mailing out
checks with insufficient funds.” In addition, Tucker noted that Jeronimus was not
keeping in touch with staff and ordered him to have weekly staff meetings. Tucker
concluded by adding that “this is the second warning that I have had to issue to
you. The next step is a five-day suspension without pay.”
The following day, July 26, Jeronimus sent an email to Tucker and Donna
Etzel, PCOC’s human resources director, complaining that he was being “unjustly
singled out for circumstances beyond [his] control,” that Tucker “was conducting a
campaign of harassment,” and adding that “[t]his is a truly hostile environment. . .”
After sending it, Jeronimus reconsidered because the email contained harsh
language. He then went downstairs to Etzel’s office, and asked that she delete it,
which she did.
Tucker promptly launched an investigation into the practices within the
finance department. Tucker discovered that in the months of May through July
2002, Jeronimus had, without notifying Tucker, issued 47 checks – totaling more
than $50,000 – with insufficient funds, creating overdrafts in PCOC’s account.3
On July 31, 2002, Jeronimus met with Tucker and informed her that, in addition to
floating checks, he had been using Head Start funds to address PCOC’s cash flow
3
Reviewing the August, 2002 bank statement, Tucker discovered that Jeronimus had
issued an additional 24 checks without sufficient funds.
6
problems. Tucker then sent Jeronimus a letter informing him that Head Start funds
may not be used to fund other programs,4 that PCOC’s auditor would be on site to
see whether there were problems with how Head Start had been administered, and
that he would be suspended without pay during the pendency of the investigation.
The auditors produced a written report on August 6, 2002. In it, they found
that for the period of May through July 2002, there were three instances in which
Head Start funds had been improperly used for purposes not related to Head Start.
Over that same period, the auditors found 72 instances (in an amount of
$88,953.85 plus $1,334.00 in overdraft fees) of checks being drawn without
sufficient funds to cover them.
B. Jeronimus’s Termination
By letter dated August 13, 2002, Tucker informed Jeronimus that the
auditors had reviewed the agency records, and that he was being terminated based
on the information they had discovered. After his termination, Jeronimus wrote an
email, which he sent to the white members of the PCOC Board, complaining of his
termination. His email explained how he was not responsible for the underlying
cash flow crisis which precipitated his termination. Following Jeronimus’s
termination, the vacant Director of Finance position was advertised in a local
4
Borrowing from Head Start funds to meet other financial obligations is forbidden by
regulation.
7
newspaper and filled by Craig Fetherman, a white male.
C. Allegations of Differential Treatment
As discussed later, Jeronimus contends that Tucker supervised and treated
Gail Wiggs (“Wiggs”), the PCOC Head Start Director, and Lela Wooten
(“Wooten”), a Senior Program Resource Coordinator, more favorably because they
are black and female.5 Thus, we review the facts regarding Wiggs and Wooten.
As Head Start Director, Wiggs was responsible for having additional
children enrolled in the Head Start program. Head Start sent a letter to PCOC
indicating that funding was available to expand enrollment by an additional 68
children. Wiggs was responsible for getting additional children enrolled and
Jeronimus was responsible for implementing the financial aspects of the expansion.
Although Jeronimus completed his duties with respect to the expansion, Wiggs did
not. Jeronimus reported Wiggs’s failure to the PCOC Board of Directors every
month for eight months. In addition, Tucker visited some of the sites and had
5
Jeronimus also suggests that there was an environment of racial discriminatory animus
at PCOC. Jeronimus notes two statements by Tucker (his superior), and two statements by
Wooten (a colleague). During a meeting with an insurance carrier, Tucker asked the rhetorical
question, “why is it that the good guys wear white and the bad guys wear black?”
A second incident coincided with a training that Jeronimus was giving, in which Tucker
told Jeronimus that he “better be training the black people in this room too or it’s not – it’s going
to look like you’re only taking care of the nonblacks.” After two presentations given by white
males who worked for outside vendors, Jeronimus heard Wooten say “white boy” with a smirk
on her face, which Jeronimus took to mean “What does he know? He’s a white boy.” After the
second presentation, Jeronimus mentioned the “white boy” comment in passing to Etzel because
he thought it was “odd.”
8
concerns that some of the children might not be prepared for kindergarten. For
these reasons, in the fall of 2002, Tucker urged Wiggs to step down as Head Start
Director. Wiggs stepped down and took the position of Assistant Head Start
Director.
Gail Wooten (“Wooten”) was responsible for, among other things, preparing
grant applications to secure funding for the CSBG program. On February 23,
2001, Hilda Frazier, FDCA Planning Manager, wrote to PCOC and stated that
FDCA could pay 100% of the contract allocation and incorporate any carryover
from the previous fiscal year into the next contract. The funding, however, would
not be released until appropriate modification documentation was submitted by
PCOC and approved by the FDCA. The following year, on March 27, 2002,
PCOC received a letter from FDCA indicating that the modification documentation
had not been received and that the documentation must be submitted “as soon as
possible to avoid delays in processing [PCOC’s] request for payment.” The
modification documentation was submitted on May 6, 2002, and the FDCA funds
did not become available until the end of June, 2002. According to Jeronimus, the
delays in receiving FDCA funds caused a cash shortage in the CSBG program.
Jeronimus also notes that by failing to satisfy several conditions of a Teen
Outreach grant award, Wooten caused PCOC to incur a ten percent monthly
9
holdback penalty, resulting in a total loss of $5,000 to PCOC.
D. Proceedings Before the District Court
On August 12, 2003, Jeronimus filed the instant complaint alleging race and
sex discrimination and retaliation by PCOC and Tucker in violation of Title VII,
the FCRA, and 42 U.S.C. § 1981. The defendants moved for summary judgment,
which the district court granted on January 11, 2005.6
The district court concluded that Jeronimus did not establish a prima facie
case of race or sex discrimination because he failed to show that any similarly-
situated employees outside his protected class were treated more favorably than he
was. Even if Jeronimus had established a prima facie case, the district court
concluded that his claim nonetheless failed because the undisputed facts
demonstrated that he had been terminated for legitimate, nondiscriminatory,
nonpretextual reasons. The district court also concluded that Jeronimus’s
retaliation claim failed because he had not engaged in protected activity, and that in
any event, he did not show a causal connection between the ostensibly protected
activity and his termination. Jeronimus timely appeals.
6
This Court reviews a district court’s grant of summary judgment de novo, applying the
same standards as the district court. Harris v. H & W Contracting Co., 102 F.3d 516, 518 (11th
Cir. 1996). “Summary judgment is appropriate if the record shows no genuine issue of material
fact and that the moving party is entitled to judgment as a matter of law. When deciding whether
summary judgment is appropriate, all evidence and reasonable factual inferences drawn
therefrom are reviewed in a light most favorable to the non-moving party.” Witter v. Delta Air
Lines, Inc.,
138 F.3d 1366, 1369 (11th Cir. 1998) (quotation marks and citation omitted).
10
II. DISCUSSION
A. The Discrimination Claims
Title VII provides that:
It shall be an unlawful employment practice for an employer. . . to
discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color,
religion, sex, or national origin. . . .
42 U.S.C. § 2000e-2(a)(1). To establish a prima facie case of race or sex
discrimination by circumstantial evidence,7 a plaintiff must show that: (1) he is a
member of a protected class; (2) he was qualified for the position; (3) he suffered
an adverse employment action; and (4) he was replaced by a person outside the
protected class, or was treated less favorably than a similarly situated person
outside the protected class. Maynard v. Bd. of Regents of the Univs. of Fla. Dep’t
of Educ., 342 F.3d 1281, 1289 (11th Cir. 2003). A similarly situated person is one
that has engaged in similar misconduct. Anderson v. WBMG-42,
253 F.3d 561,
564 (11th Cir. 2001).
If the plaintiff establishes a prima facie case of retaliation, the burden shifts
to the defendant to articulate a legitimate, nondiscriminatory business reason for
the employment action at issue. Silvera v. Orange County Sch. Bd., 244 F.3d
7
Jeronimus concedes that he is not making a claim of discrimination or retaliation on the
basis of direct evidence.
11
1253, 1258 (11th Cir. 2001). If the defendant offers a legitimate,
nondiscriminatory reason for the adverse employment action, the burden shifts
back to the plaintiff to demonstrate why the proffered reason is a pretext for race or
sex discrimination. Id. To prove that a legitimate, nondiscriminatory reason for
the adverse employment action is a pretext for race or sex discrimination, a
plaintiff must show either “that a discriminatory reason more likely motivated the
employer or. . . that the employer's proffered explanation is unworthy of credence.”
Tex. Dep’t of Community Affairs v. Burdine,
450 U.S. 248, 256,
101 S. Ct. 1089,
1095 (1981); see also Mayfield v. Patterson Pump Co.,
101 F.3d 1371, 1376 (11th
Cir. 1996). Courts “are not in the business of adjudging whether employment
decisions are prudent or fair. Instead, our sole concern is whether unlawful
discriminatory animus motivates a challenged employment decision.” Damon v.
Fleming Supermarkets,
196 F.3d 1354, 1361 (11th Cir. 1999).
We first agree with the district court that Wiggs and Wooten were not
similarly situated to Jeronimus because their performance issues were not as
serious as Jeronimus’s performance issues. Wiggs and Wooten, like Jeronimus,
reported to Tucker. Wiggs’s conduct involved (1) a delay in expanding the Head
Start program to enroll an additional sixty-eight children and (2) operation of some
sites in a manner that, in the eyes of Tucker, may have been insufficient to prepare
12
the children-beneficiaries for kindergarten. Wooten’s conduct involved (1) a
delay in submitting modification documentation to the FDCA in a manner that
would enable the CSBG program to have sufficient funds timely and (2) incurring
a cost of $5,000 to PCOC in the Teen Outreach Grant.
Jeronimus’s conduct was substantially different and more serious than the
conduct of either Wiggs or Wooten. From early in his employment, Tucker
expressed concerns that Jeronimus was unable or unwilling to get along with
coworkers, that his management was too hands-off, that his reports were
consistently not being prepared in a timely manner, and that he was not
competently managing PCOC’s finances. These concerns were memorialized in
numerous letters and memoranda from Tucker to Jeronimus and in strong and
unequivocal language. Ultimately, what led to his termination was the discovery
that Jeronimus was violating agency regulations by inappropriately using Head
Start funds for other underfunded programs and diminishing PCOC’s standing with
creditors by floating checks without sufficient funds. Because Jeronimus’s
conduct was substantially different and more serious than the conduct of Wiggs or
Wooten, they cannot be said to have engaged in similar conduct.8 Accordingly, the
8
Jeronimus also compares the treatment he received to that of Charlotta Saab, a black
female, former assistant director at PCOC whom Tucker terminated. Jeronimus contends that
he was treated differently because Saab was terminated only after face-to-face counseling and
because she was permitted to appeal to the PCOC Board of Directors while he was permitted to
13
district court did not err in concluding that Jeronimus failed to establish a prima
facie case of race or sex discrimination and in entering summary judgment in favor
of the defendants on his discrimination claims.9
Jeronimus also contends that his treatment compared to that of black female
employees, combined with the comments that Tucker and Wooten made, show that
the reasons for his termination were pretextual.10 Because Jeronimus has failed to
establish a prima facie case of discrimination, there is no need to reach the issue of
prextext. However, the district court did address pretext, and it is clear that given
Jeronimus’s admission that the performance-related issues Tucker addressed in her
correspondence to him were legitimate concerns, he cannot show that there reasons
for his termination were pretextual in any event.
B. The Retaliation Claims
appeal to a personnel committee. We find no merit in this contention. Both employees were
terminated, and neither were reinstated through the appeal procedure.
9
Because the FCRA is patterned after Title VII, the district court also properly entered
summary judgment on Jeronimus’s FCRA claims. See Harper v. Blockbuster Entertain. Corp.,
139 F.3d 1385, 1387 (11th Cir. 1998). Additionally, because Title VII and § 1981 “have the
same requirements of proof and use the same analytical framework,” Standard v. A.B.E.L.
Servs., Inc.,
161 F.3d 1318, 1330 (11th Cir. 1998), the district court properly entered summary
judgment on Jeronimus’s race discrimination claim under § 1981. Although the district court did
not specifically mention § 1981, because the § 1981 claim is reviewed under the same
framework as Title VII, any error which might exist in the failure to reference § 1981 is
harmless.
10
Although Wooten was not a decisionmaker in the decision to terminate Jeronimus, her
remarks, “may provide circumstantial evidence to support an inference of discrimination.” Ross
v. Rhodes Furniture, Inc., 146 F.3d 1286, 1291-92 (11th Cir. 1998).
14
Title VII provides that:
It shall be an unlawful employment practice for an employer to
discriminate against any of his employees. . . because [the employee]
has opposed any practice made an unlawful employment practice by
this title, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing
under this title.
42 U.S.C. § 2000e-3(a). In order to establish a prima facie case of retaliation, a
plaintiff must show that: “(1) he engaged in protected activity; (2) he suffered an
adverse employment action; and (3) there was a causal link between the protected
activity and the adverse employment action.” Bass v. Bd. of County Comm’rs,
256 F.3d 1095, 1117 (11th Cir. 2001) (citation omitted). The only actions which
could conceivably qualify as protected activity were Jeronimus’s casual mention to
Etzel of Wooten’s “white boy” comment and the email that he sent to Etzel
complaining that he was being unjustly singled out. All indications, including
Jeronimus’s contemporaneous reaction, are that the “white boy” comments were
isolated, ephemeral, and ambiguous. And in the email, while Jeronimus
complained of being “singled out,” being subjected to “a campaign of harassment,”
and working in a “hostile environment,” he never suggested that this treatment was
in any way related to his race or sex. Even assuming that Etzel had the opportunity
to read the entire email before she deleted it, this email did not amount to protected
conduct. And even if the email did qualify as protected conduct, we agree with the
15
district court that Jeronimus made no showing of a causal connection between the
email (or the comment in passing to Etzel) and his termination.
III. CONCLUSION
For all of the above reasons, this Court affirms the district court’s entry of
summary judgment in favor of the defendants on all of Jeronimus’s claims.
AFFIRMED.
16
