A recent employment discrimination case out of Middle District of Florida (Jacksonville) provides some insights into how Florida federal courts treat summary judgment in employment cases. Let’s take a look.
Summary of Plaintiff’s Discrimination Claims
Jawanda Dove, a Black woman, was employed by the Flagler County School Board as an instructional educator since 2006. Dove applied for at least ten leadership positions between June 2018 and September 2019. She was rejected each time. s
In response, Dove filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) claiming that the School Board “denied her promotional opportunities because of her race and color and in retaliation for filing a previous charge with the EEOC in 2014.” On June 30, 2020, Dove initiated a lawsuit against the School Board in the Middle District of Florida by filing her Complaint and Demand for Jury Trial alleging race and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act of 1992.
The School Board moved for summary judgment. The Court denied summary judgment holding that there were factual disputes that needed resolved at trial. Because Dove admitted that she could not offer direct evidence of the discrimination, the Court used the McDonnell Douglas burden-shifting framework. This is common in Title VII (discrimination) cases. In discrimination cases, the plaintiff only avoids the McDonnell-Douglas burden-shifting framework if they have direct evidence of discrimination.
The Court’s Analysis
Applying the McDonnel Douglas framework, the burden was on Dove to establish a prime facie case. Specifically, Dove had to show that (1) she is a member of a protected class, (2) she applied for and was qualified for an available position, (3) she was rejected, and (4) the School Board filled the position with a person outside Dove’s protected class.
The School Board acknowledged that Dove met the first, second, and third elements for nearly all the positions she applied for. However, the School Board argued that Dove could not prove the fourth element because the School Board “has hired and promoted many other applicants of the same protected class to fill similar and more prestigious positions.” The School Board pointed to the affidavit of its Chief Human Resources Officer Jewel Johnson, in which she stated that “the School Board employs African American individuals in leadership positions similar or more prestigious than the subject positions that Ms. Dove applied for.”
The Court concluded that the School Board showed a “fundamental misunderstanding of [Dove’s] burden.” Dove did not have to show that the School Board discriminated in every hiring decision or that the School Board has failed to hire or promote every person that belonged to Dove’s protected class. The fourth element solely concerns Dove and the positions that Dove applied for.
Regarding the fourth and final element, Dove identified several white candidates who were hired to fill in the positions to which Dove applied. Dove argued that she had more years of experience and more educational accomplishment than the selected white candidates. Further, the School Board previously admitted that it hired white individuals to fill at least three of the assistant principal positions to which Dove applied.
Finding that Dove carried her burden of establishing each of the four elements, the Court shifted the burden on the School Board to offer a legitimate, nondiscriminatory reason for its decisions. The School Board merely relied on the conclusory statement in Johnson’s affidavit that the hiring committee did not recommend Dove for the positions at issue because “Dove was not the best qualified candidate out of all applicants.”
The Court found the statement “wholly insufficient” to meet the School Board’s burden. The School Board failed to provide clear and reasonably specific facts for which it based its subjective opinion that Dove was not the best qualified. As a result, the Court held that the School Board failed to meet its burden of providing a legitimate, nondiscriminatory reason for its failure to hire Dove for the positions at issue, and Dove’s prime facie case stood unrebutted. That means Dove gets to go to trial. The case is Dove v. Flagler Cnty. School Board, 2022 WL 16923562 (M.D.Fla., 2022).
The Takeaways by JP
Federal court in Florida (and more broadly, the 11th Circuit) is typically regarded as a tough place for employment discrimination plaintiffs. And perhaps that reputation is well-earned. But, to be fair, there are countless frivolous or borderline frivolous employment discrimination cases filed in Florida federal courts every single week. If you have (1) a clear case of discrimination or (2) a plausible case and, through sheer luck, end up litigating against sloppy lawyers, you have a pretty strong chance of getting to trial. In my view, this is an example of (2).
If Flagler County School Board put in evidence saying, for instance: “Dove has a reputation of being difficult to work with and missing key deadlines. Here are examples. This is why we did not hire her into these higher-level roles” — That would have done it. It didn’t have to be exactly that. It could have been anything plausible. Then the burden would have shifted back to Dove to prove that Flagler County was lying. If it goes that way, I think Flagler County wins summary judgment. But, instead, Flagler County just generically said that other candidates were better qualified. That was just lazy. So, now, the case goes to trial.
Is it possible that the Plaintiff has been discriminated against? Yes. But is it equally possible that the School District had a valid reason for not promoting the Plaintiff or hiring her into a leadership position? Absolutely. There’s no overt / obvious discrimination here. And in any large system (like a school system), there are plenty of long-term employees who you would not want in leadership roles, regardless of their advanced degrees or other credentials. So either one of these scenarios could be true. This is why I love jury trials. The absolute best and fairest thing that could happen here: Let a jury figure it out.
I anticipate Flagler County will show up at trial with a laundry list of reasons why the Plaintiff was not the best candidate for all of the positions she applied to. I further anticipate that Flagler County will put on several witnesses to back this up (whether true or fabricated). And I further anticipate that Flagler County will file a motion for a directed verdict at the close of Plaintiff’s case. A directed verdict is like a second bite at summary judgment, but in the middle of trial. In my view, I put significant odds on Flagler County winning such a motion. If I’m the Plaintiff here, I settle pre-trial.
As for me, I wouldn’t have touched this case. I’m just being blunt. We would have flagged it as probably losing at summary judgment and declined it. There is no compelling evidence of discrimination or racism. If the Plaintiff decides to go to trial and roll the dice, here’s how it shakes down: If the Plaintiff comes across as likable, smart, capable, and honest — she’s got a shot at winning. If she doesn’t check all these boxes, she loses. Without clear evidence of racism or catching the Defendant in a lie (or multiple lies), a jury is going to hesitate to rule in her favor unless they really like her and believe she was far-and-away the best candidate for those open positions. This is especially true with a Jacksonville, Florida jury.
Pre-trial settlement value: This is a tough one to calibrate for several reasons. Obviously, predicting the outcome of a jury trial is basically gambling. But one can make an educated guess. First, attorneys’ fees really complicate the math. Any small win by the Plaintiff will trigger an award of attorneys’ fees. There’s probably at least $250,000 in fees in the case already. There will probably be at least $350,000 by the end of trial. If the Plaintiff wins even $50,000 in damages (back pay / front pay), then you add on the fees and we’re already at $400,000. So any win at trial by the Plaintiff and the County is out basically $400,000 plus its own trial fees/costs.
But it doesn’t stop there. Plaintiff ostensibly is still a teacher in Flagler County. She wants to go to trial so she can tell her story. And probably because she believes she will win, get paid at least something, and get promoted (by court order) into one of the leadership roles she previously sought.
Not only that, but if the Plaintiff manages to win this at trial, I have no doubt there will be several copy-cat lawsuits.
On the flip side: The case would have been disposed of at summary judgment with better lawyering on the Defense side. And I still say there’s at least a 60% chance the Plaintiff outright loses at trial and gets nothing. Why? Because this is a Jacksonville, Florida jury and there is no evidence of obvious / overt / explicit discrimination. When there is obvious / explicit discrimination and it’s really ugly, juries will not hesitate to punish corporate America — even in more conservative locations. But in a case like this? The Plaintiff’s case is basically this: I applied for all of these openings. I did not get the job. I was more qualified than white people who got hired. It was discrimination. Will a Jacksonville jury buy that? Not unless the Plaintiff – Dove – comes off as incredibly likable, smart, capable, and credible.
This is why you always videotape depositions of key players/actors/witnesses in litigation. Because you need somebody with a stone-cold read on this sort of thing to size up likability, credibility, etc. And 95% of lawyers can’t do that. They drink the Kool Aid. They are clueless about regular people (e.g. a jury).
There’s no middle ground at trial here. The Plaintiff will either lose and get nothing, or, she’ll get a court-ordered promotion, at least $75,000 in damages, and attorneys’ fees. As for the Defendant, they’re either vindicated or they lose and the $500,000 or so payout/cost here is peanuts compared to the cost of the next 10 or 20 discrimination lawsuits. It’s a huge gamble on either side. My gut is that the Plaintiff will not settle and is 100% dug in and wants to go to trial. But if I’m on the defense side here, I’m accepting the chance to do pre-trial mediation. It’s worth at least $200,000 to settle out right now unless the Plaintiff comes off as insufferable and there is zero dirt in the record on Flagler County. If the Plaintiff is super likable / credible and there’s some significant dirt on Flagler County (e.g. caught in multiple lies etc), then we’re in $400,000 territory.
About Jonathan Pollard and Pollard PLLC
Jonathan Pollard is the founder of Pollard PLLC, a law firm based in Fort Lauderdale, Florida. Over the past decade, Pollard and his colleagues have litigated hundreds of employment cases ranging from non-compete and trade secret cases to employment discrimination and workplace sexual assault cases. Pollard has appeared in or on the New York Times, the Wall Street Journal, NPR, PBS News Hour, Bloomberg, The Guardian, Inc. Magazine, and more. He has 75,000+ followers on LinkedIn, where he frequently posts commentary on law, business, and life. The Firm can be reached at 954-332-2380.
