Raina M. Ricks v. Indyne, Inc.

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13051
Non-Argument Calendar
____________________
RAINA M. RICKS,
Plaintiff-Appellant,
versus
INDYNE, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:18-cv-02171-RV-HTC
____________________
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2 Opinion of the Court 21-13051
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and
BRASHER, Circuit Judges.
PER CURIAM:
Raina Ricks appeals the summary judgment in favor of her
former employer, InDyne, Inc., and against her complaint of a hos-
tile work environment based on her sex and of retaliation for filing
a charge of discrimination in violation of the Florida Civil Rights
Act of 1992, Fla. Stat. § 760.10. Ricks does not appeal the summary
judgment against her claim of race discrimination in her termina-
tion. See Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316,
1318 (11th Cir. 2012). The district court ruled that a few, sporadic
incidents of sexual harassment by Ricks’s coworker did not create
a hostile work environment. The district court also ruled that Ricks
failed to temporally connect her termination and her charge of dis-
crimination, and, in the alternative, that she failed to establish that
her termination for excessive tardiness was a pretext for retaliation.
We affirm.
I. BACKGROUND
In May 2013, after working four years for InDyne as a per-
sonnel assistant in its human resources department, Ricks reported
to management that coworker Cindi Wood was misusing her com-
pany credit card and submitting false mileage reports. Ricks
thought that Wood and their supervisor, Jerry Johnson, resented
her.
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21-13051 Opinion of the Court 3
In April 2014, Ricks’s tardiness became an issue. Two
months earlier, over Ricks’s objections, her department instituted
an alternative work schedule in which employees arrived at 7:00
a.m., worked nine hours Monday through Thursday, eight hours
on Friday, and were off every other Friday. On April 16, Johnson
confronted Ricks about leaving early and reminded her “to adhere
to [the] new AWS schedules.” On April 21, Johnson called Ricks
into his office to discuss her schedule, but after he remarked she
“rare[ly]” adhered to her adjusted arrival time of 7:30 a.m., she left
their meeting, ignored his requests to return to his office and his
efforts to console her, and departed work by 9:00 a.m. The next
day, Ricks met with Johnson and his supervisor, Harry Schubele,
and objected to her work schedule and with what she perceived as
being targeted based on her race. After Johnson reprimanded and
“got agitated with” Ricks, she agreed to abide by her schedule.
Ricks also contacted Michael Guidry, the Contract Manager, who
responded that Johnson had poor people skills but had not targeted
or discriminated against Ricks.
On June 9, 2014, James Humbarger, who worked in the
technical services division, visited Ricks at her desk. Humbarger’s
voice was louder than usual as he described his weekend, he “said
several curse words . . . just in conversation,” and he used two lewd
words. “He also made a racial comment concerning the texture of
the skin on [Ricks’s] hands asking if ‘it was a black thing’” and re-
marked on the color she dyed her hair that, “Only black and His-
panic women do that, white girls don’t do that.” “Before
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4 Opinion of the Court 21-13051
[Humbarger] started to leave he leaned in to hug [Ricks] and tried
to kiss [her],” and when she avoided his advances, he said, “You
and me should hook up.” After Wood reported the incident to
Johnson, he asked Ricks, “What was w[ith] Humbarger today?”
Ricks responded that she “didn’t know” and griped that, “when
people want to vent and talk to me about their issues it doesn’t help
that I’m out in the open so everyone can hear what is said.” John-
son offered to speak to Humbarger’s supervisor and “to stop a con-
versation that was getting weird . . . [if] she . . . just wave[d] in his
office . . . .”
Humbarger and Ricks had other interaction at work. On one
occasion, while Humbarger, Ricks, and Lauren Day, an adminis-
trative assistant, were talking, Day suggested that Humbarger in-
troduce his son to Ricks, and Humbarger responded, “She’s mine”
or “I want her to be mine.” After Ricks “giggled,” Day left Hum-
barger’s office. Ricks later texted Day that Humbarger made her
uncomfortable and had tried to kiss her, but Day decided that if
Ricks “was uncomfortable, she would have reported it.” In Septem-
ber 2016, Humbarger made “an inappropriate comment [to Ricks]
about trading [her] in for his wife.”
Ricks, who had begun therapy for work-related stress, began
“getting upset and having to leave” work. Her behavior caused
Day in October 2014 to tell Guidry that there was “an issue be-
tween [Humbarger] and [Ricks],” which surprised Guidry. A few
months later, Humbarger was put on a performance improvement
plan. When he failed to comply and an internal investigation
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21-13051 Opinion of the Court 5
confirmed that Humbarger had been coming to work intoxicated,
InDyne fired him.
Meanwhile, in November 2014, Ricks filed a charge of dis-
crimination with the Equal Employment Opportunity Commis-
sion. Ricks alleged that she had been “targeted” for termination be-
cause she opposed the alternative work schedule and had reported
Wood’s misconduct to management. Ricks also alleged that
“Humbarger made multiple inappropriate racist and sexual com-
ments” on unspecified occasions by asking Ricks to “hook up,”
“ask[ing] [her] to sit on his lap and ‘and let [him] feel [her] rear
end,’” and stating that anyone working in the office “would love to
have sex with [him].”
In early 2015, Humbarger visited Ricks’s “confidant” at
work, Georgianna Nance. Humbarger “wreak[ed]” of alcohol and
was distraught about his drinking and family issues. Later that day,
Johnson and Guidry spoke with Nance about Humbarger because
“they [had] bec[o]me aware of what was going on between him
and Ms. Ricks, and his issues were starting to surface.”
In February 2015, Guidry met with the human resources de-
partment to address its employees’ work hours. Guidry instructed
every employee to email Johnson, with a copy to Schubele, on their
arrival to and before departing from the office. Ricks continued to
arrive late. When Johnson asked Ricks why she was tardy between
80 and 90 percent of the time, she responded that the time reported
in her morning emails was incorrect, but she offered no explana-
tion or excuse for her failure to timely check in.
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6 Opinion of the Court 21-13051
On March 19, 2015, InDyne put Ricks on a performance im-
provement plan to address her “excessive tardiness.” The written
plan instructed Ricks “[w]hen having difficulties . . . [to] be in con-
tact with the Human Resources Manager to advise as to the delay
and estimated time of arrival.” The plan stated that Ricks’s “pro-
gress in adhering to [her] scheduled arrival and departure times
[would] continue to be monitored and be reviewed in 30 days.”
Ricks was warned that, unless she “immediately improve[d] and
sustain[ed] [her schedule], further action [would] be taken which
may include termination.” Ricks refused to sign the plan.
Ricks continued to arrive late to work, but InDyne post-
poned any discipline. On April 23, 2015, Ricks met with Johnson
and Schubele about a 30-day follow up plan. That plan charted how
Ricks “continu[ed] to be . . . late 50% of the time” and provided
“another 30 day period . . . to monitor [her] reporting” of “start and
end emails . . . .” The follow up plan contained the same warning
as the original plan if she failed to “immediately improve[] and sus-
tain . . . performance.” Ricks also refused to sign the follow up plan.
On May 4, 2015, after Guidry saw Ricks arrive late to work,
he fired her. Guidry composed a letter that described Ricks’s his-
tory of tardiness in 2012 and 2014 and her noncompliance with the
performance plan in 2015. Guidry stated that Ricks was “termi-
nate[d] . . . effective immediately” because, “[d]espite our efforts to
work with you on a schedule that meets your needs (start time at
7:30 AM rather than the standard 7:00 AM schedule) and the re-
peated attempts to stress the importance of reporting to work on-
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21-13051 Opinion of the Court 7
time, [she] continue[d] to exhibit ‘excessive absenteeism’ as defined
in the employee handbook . . . .” The employee handbook stated
that “punctuality [is] critical to quality of service, productivity, and
morale” and that “[c]hronic or excessive . . . tardiness will be cause
for corrective action up to, and including, termination of employ-
ment.”
Ricks filed a complaint against InDyne in state court, which
the company removed to federal court, 28 U.S.C. § 1332(a). When
InDyne deposed Ricks, she acknowledged that her check-in emails
were often late because “people would meet [her] at [her] desk or
be waiting there to be helped” or because her computer was down-
loading updates or had to be rebooted. Ricks stated she never men-
tioned the delays to Johnson or Schubele “because they should
have thought of” the problems she encountered. Ricks stated that
“[t]hey said they wanted an e-mail, so they got an e-mail” and she
never was “asked to put the actual time [she] arrived” in the email,
although she did so “if it was like later on in the day and [she] was
busy . . . .” And Ricks confirmed that she never tried to explain her
tardiness.
Q They did tell you you had an 80 percent tardiness
rate, you had a 90 percent tardiness rate, they did tell
you that; isn’t that correct?
A But telling me that doesn’t make it true.
Q They did tell you that; isn’t that correct?
A Yes.
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8 Opinion of the Court 21-13051
Q So when they told you that, and you’re saying it
wasn’t true, did you explain to them what the situation
was that you were giving them bad input?
A It wasn’t bad input, it was the input that they re-
quired. So no, I did not.
InDyne moved for summary judgment, which the district
court granted. The district court ruled that Ricks failed to establish
a prima facie case of retaliation “as there was a six month gap be-
tween the statutorily protected expression (the filing of her first
EEOC charge on November 4, 2014) and the adverse action (her
termination on May 4, 2015).” Alternatively, the district court ruled
that InDyne “discharged its intermediate burden” of establishing it
fired Ricks for excessive tardiness and that she failed to prove the
reason was false and “that retaliation for filing the EEOC charge
was the true reason” she was fired. The district court also ruled that
Ricks’s claim of a hostile work environment failed because “Hum-
barger’s conduct appears to have been infrequent and . . . not so
severe as to alter the term of [Ricks’s] working conditions . . . .”
II. STANDARD OF REVIEW
We review a summary judgment de novo and view the evi-
dence in Ricks’s favor. Tonkyro v. Sec’y, Dep’t of Veterans Affs.,
995 F.3d 828, 832 (11th Cir. 2021). Summary judgment is appropri-
ate when “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).
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21-13051 Opinion of the Court 9
III. DISCUSSION
Ricks challenges the judgment against her claims of a hostile
work environment at and of retaliation by InDyne. Ricks argues
that a triable issue exists as to whether Humbarger’s harassment
created a discriminatorily abusive working environment. Ricks
also argues that her evidence of being fired in retaliation for filing
a charge of discrimination against InDyne survives summary judg-
ment. Ricks’s arguments fail.
Ricks sued InDyne for violating the Florida Civil Rights Act,
which prohibits discrimination against any person with respect to
her “terms, conditions or privileges of employment, because of
[her] race, color, . . . [or] sex,” Fla. Stat. § 760.10(1)(a), or in retali-
ation for making a charge of discrimination, id. § 760.10(7). The Act
makes sexual harassment actionable as a “form of sex discrimina-
tion.” Maldonado v. Publix Supermarkets, 939 So. 2d 290, 293 (Fla.
Dist. Ct. App. 2006). Because the Act is patterned after Title VII,
decisions construing Title VII apply to claims brought under the
Act. Johnson v. Miami-Dade Cnty., 948 F.3d 1318, 1325 (11th Cir.
2020); Palm Beach Cnty. Sch. Bd. v. Wright, 217 So. 3d 163, 165
(Fla. Dist. Ct. App. 2017).
The district court did not err by entering summary judg-
ment in favor of InDyne and against Ricks’s complaint of a hostile
work environment. Ricks failed to prove that Humbarger’s harass-
ment amounted to “discriminatory intimidation, ridicule, and in-
sult that [was] sufficiently severe or pervasive to alter the condi-
tions of [her] employment and create an abusive working
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10 Opinion of the Court 21-13051
environment.” Tonkyro, 995 F.3d at 836–37 (quoting Miller v. Ken-
worth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002)). “Es-
tablishing that harassing conduct was sufficiently severe or perva-
sive to alter an employee’s terms or conditions of employment in-
cludes a subjective and an objective component.” Mendoza v. Bor-
den, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999). Ricks did not report
Humbarger’s harassment to superiors and dismissed her supervi-
sor’s offer to intervene. But even if Ricks perceived his harassment
as subjectively intolerable, Humbarger did not engage in the type
of “extensive, long lasting, unredressed, and uninhibited sexual
threats or conduct” that an objective person would consider to be
severe or pervasive. See Gupta v. Fla. Bd. of Regents, 212 F.3d 571,
586 (11th Cir. 2000) (quoting Indest v. Freeman Decorating, Inc.,
164 F.3d 258, 264 (5th Cir. 1999)), overruled on other grounds as
recognized by Crawford v. Carroll, 529 F.3d 961, 973–74 (11th Cir.
2008). Humbarger’s advances were infrequent. And Humbarger’s
offensive comments and vulgar behavior lacked the severity or per-
vasiveness necessary to amount to actionable sexual harassment.
The district court also correctly entered summary judgment
against Ricks’s complaint of retaliation. That InDyne fired Ricks six
months after she filed her charge of discrimination was too pro-
tracted to causally connect the adverse employment action to her
protected activity. See Thomas v. Cooper Lighting, Inc., 506 F.3d
1361, 1364 (11th Cir. 2007). And even if we assume that Ricks had
established a prima facie case of retaliation in violation of the Flor-
ida Civil Rights Act, Fla. Stat. § 760.10(7), InDyne provided a
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21-13051 Opinion of the Court 11
legitimate, nonretaliatory reason for Ricks’s termination, see Alva-
rez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th Cir.
2010). InDyne established that Ricks was fired for excessive tardi-
ness. Ricks failed to “meet [that proffered reason] head on and re-
but it.” See Holland v. Gee, 677 F.3d 1047, 1055 (11th Cir. 2012)
(quoting Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088 (11th
Cir. 2004)). Ricks admitted that she was occasionally late, that she
failed to electronically clock in or was late doing so, and that she
never attempted to refute that she was late 80 to 90 percent of the
time. Because Ricks failed to produce evidence of causation or of
pretext, Ricks’s complaint of retaliation failed as a matter of law.
IV. CONCLUSION
We AFFIRM the summary judgment in favor of InDyne.