Because Plaintiff's Motion for Sanctions ask that, among other things, the Court disregard evidence that might impact the summary judgment analysis [see Doc. 76 at 9], the Court addresses it first.

I. BACKGROUND

Plaintiff filed this single-plaintiff employment discrimination action in November 2018. [Doc. 1.] In it, he asserts claims for discrimination and retaliation under Title VII. [Id.; see also Doc. 15.] Discovery, which would normally last four months in this type of case, ran for well over a year. During that time, Plaintiff's counsel failed to raise a single issue with the Court that is presently laid out in the Motion for Sanctions. Indeed, before discovery expired, the only problems raised with the Court pertained to scheduling. Throughout the discovery period, the parties[1] repeatedly filed joint motions to extend the discovery period, all of which were granted. [See Docs. 31, 39, 49.] As of October 2019, the parties represented that “several rounds” of discovery had been exchanged, “more responses were forthcoming,” and that there was “no current discovery dispute.” [Doc. 39 at 2-3.] In November 2019, Plaintiff's counsel reached out to Chambers to request a teleconference to address issues with scheduling depositions, but made no mention of any other problems at that time; and that scheduling issue was thereafter resolved by means of yet another extension. [See Doc. 49.] Discovery—including depositions, written discovery, and document productions—then proceeded for the next two months without any Court intervention.

*2 Discovery expired on January 13, 2020. [See Doc. Entry dated Nov. 11, 2019.] Despite that, the parties filed yet another consent motion to reopen and extend discovery on February 2. [Doc. 55.] In their motion and communications with the Court, the parties represented that due to concerns raised by Plaintiff, Defendant had agreed to conduct additional searches within its email repositories, and that the searches and production of email documents would take additional time due the age and technical crudeness of the email archives. [See Doc. 55; see also Decl. of Terrence Slaton (“Slaton Decl.”) [Doc. 83-7] ¶¶ 4-7.] Plaintiff's counsel noted that the produced documents might require additional discovery, but did not raise any concern about completing that discovery within the extended period. Based upon the parties' representations, the Court reopened and extended discovery through March 4. [Doc. Entry dated Feb. 3, 2020.] Then, due to issues arising from the onset of the COVID-19 pandemic, the deadline for filing motions for summary judgment was extended until May 18. [Docs. 59, 62; Doc. Entries dated Mar. 19, 2020 and April 22, 2020.]

Months passed without any discovery problems being raised with the Court. Discovery closed again. Then, in mid-May 2020, a little more than a week before summary judgment motions were due, Plaintiff's counsel contacted the Court about a “pattern of discovery abuse in this case.” The Court stayed the pending summary judgment deadlines [Doc. 65; Doc. Entry dated May 12, 2020], and held a hearing on May 14, 2020 [Doc. 64, 66]. At that hearing, Plaintiff did not seek more time for additional discovery or otherwise move to compel Defendant to provide any information or materials. Instead, Plaintiff set out the issues raised in his instant Motion for Sanctions, which the Court turns to now.

At the beginning of this litigation, the parties stated in their joint preliminary report and discovery plan that “in the event either Party seeks electronic communications, that Party will provide search terms and the names or a description of the email inboxes and outboxes to search (if known).” [Doc. 6 at 10.] It appears that Plaintiff did not do so until the end of discovery.

In April 2019, Plaintiff served his first set of written discovery on the County [see Doc. 19], including a request for “all emails to/from the Office of the County Manager to/from David Fitzgibbon and/or Doug Kirkpatrick relating to any complaint made by Johnson.” [See Doc. 83-1 at 14, see also id. at 4-7.][2] The requests did not include proposed search terms, and it does not appear that Plaintiff provided any. (See generally, Martinez Aff.)[3] In May, the County's discovery responses stated that it “has instituted an e-mail search which may produce additional responsive material which will be produced ....” [Doc. 83-1 at 14-15.] In fact, the County's legal department had begun the process for searching certain email archives, which included crafting search parameters to be conducted by the County's Department of Information Technology (the “IT Department”). (Martinez Aff. ¶ 6.) Unfortunately, due to high attorney turnover and miscommunication in Defendant's legal department, it appears that the search protocol developed by the legal department was never actually delivered to the IT Department. (Martinez Aff. ¶¶ 4-6, 9.) It also appears undisputed that the failure was unintentional. (Id. ¶ 9.) [See also Doc. 87 at 5-6.] Despite the breakdown of the email searching, Defendant produced over 1300 responsive documents in May 2019. [See Doc. 83-3 (receipts of electronic file transfers).][4] Plaintiff raised no concern at the time about the email searches or Defendant's production.

*3 Approximately three months later, in August 2019, the parties began to confer over deposition topics for Defendant's witnesses designated under Federal Rule of Civil Procedure 30(b)(6). [See e.g., Doc. 83-4 (Aug. and Sept. 2019 emails between counsel).] On September 16, 2019, Defendant produced another tranche of approximately 150 documents. [Doc. 83-3.] Ten days later, on September 26, Plaintiff served the Board—as opposed to County, which was previous served—with written discovery, including similar requests for documents to pertaining to Fitzgibbon's investigation into the circumstances leading to Plaintiff's discharge; “emails to/from the Office of the County Manager to/from David Fitzgibbon and/or Doug Kirkpatrick relating to any complaint made by Johnson”; and communications “to, from or amongst Board Members at the time of the Incident through current relating to Johnson, the Incident[, or] this lawsuit.” [Doc. 83-5, Reqs. 10, 22, 24.] Once again, it does not appear that Plaintiff provided search terms or identified specific custodians.

In the midst of serving written discovery on the Board—and without waiting on written responses, much less the production of documents—Defendant noticed the depositions of Kirkpatrick, Fitzgibbon, and Plaintiff on September 19, September 25, and October 2, 2019, respectively.[5] [Docs. 33, 34, 35.] Plaintiff then served his 30(b)(6) deposition notices for both the County and Board on October 4, 2019. [See Docs. 36-37.] Kirkpatrick was deposed on October 10. [See Doc. 34.] Fitzgibbon was deposed on October 18. [See Doc. 33.] On October 29, before serving the Board's objections and responses to Plaintiff's written discovery,[6] counsel for Defendant finally sent an email search request to the IT Department for documents responsive to Plaintiff's requests for production (both those served on the County and the Board). (See Martinez Aff. ¶¶ 7-8; see also Slaton Decl. ¶ 8.)

Around October 9, Plaintiff's counsel also informally sought (and was sent during Fitzgibbon's deposition on October 18), a transcript of a call produced by Fitzgibbon's counsel from another lawsuit in which Fitzgibbon himself sued Defendant for discrimination. [See Docs. 83-6, 83-18; see also Doc. 76 at 3; Doc. 83 at 12-13.] According to Plaintiff, the transcript is relevant to show that Defendant discharged him, and conversely, that he did not voluntarily opt to resign; and because of the timing of the production, counsel was unable to question Fitzgibbon about it during his deposition. [See Doc. 87 at 3-4; see also Decl. of Seth Katz (“Katz Decl.”) [Doc. 84] ¶ 14.]

On November 13, subject to certain objections, the Board responded to all of the relevant requests for production by indicating again that an email search had been initiated and responsive documents would be produced. [See Doc. 45; Doc. 83-5, Resps. 10, 22, 24.] According to Defendant's counsel, on that same day, the Board produced approximately 400 documents. [See Doc. 83 at 5.] Plaintiff still had not complained about the lack of email searching or production.

As noted, in late November 2019, the parties were granted another discovery extension to work out deposition schedules. Defendant objected to Plaintiff's 30(b)(6) deposition notices on November 20 [see Doc. 50], and counsel scheduled a time to discussed the proposed topics and Defendant's objections [see Doc. 83-8]. On December 6, counsel held a teleconference, and continued to confer over email about revisions to the proposed topics. [See Doc. 83-9.] While negotiations were ongoing, Plaintiff filed another set of 30(b)(6) deposition notices [Doc. 52, 53], to which Defendant again objected [Doc. 54]. During the course of these discussions, additional email custodians[7] were identified for searches to adequately prepare 30(b)(6) witnesses. [See Doc. 83-9.]

*4 On December 3, 2019, the IT Department provided Defendant's counsel with around 300 documents from the email searches counsel had requested on October 29. (Martinez Aff. ¶ 8; see also Slaton Dec. ¶ 8.) Defendant's counsel reviewed the documents and produced them on December 16, at the 30(b)(6) depositions of the County and Board [Doc. 83 at 7; Doc. 87 at 2-3]. Of relevance to the present motion, the December 16 production contained emails responsive to the requests for production served in both April and September, including email correspondence between Kirkpatrick and Fitzgibbon concerning write-ups of Plaintiff and, thus, the events leading to his separation from employment. [See Doc. 83-10.] (See also Katz Decl. ¶ 13.) Notably, during their depositions the prior month, Kirkpatrick and Fitzgibbon had testified that they did not recall emailing each other about the write-ups (see Kirkpatrick Dep. 49, 128-29, 136-37; Fitzgibbon Dep. 228-29, 238-39), and Plaintiff now complains that they could have been questioned and/or impeached about that testimony if the emails had been available at the time of their depositions—in particular, since one of the issues in the case is whether and the extent to which Kirkpatrick's animus might have impacted Fitzpatrick's investigation of Plaintiff's conduct and the decision to force his separation. Also on December 16, following the 30(b)(6) depositions, and apparently pursuant to discussions at the depositions, Defendant's counsel also produced a document listing complaints against Fitzgibbon and Kirkpatrick. [See Doc. 83-13.]

During the December 16 30(b)(6) depositions, Plaintiff's counsel complained generally that Defendant had not provided witnesses to address every noticed topic. (See Dep. of Dwight Robinson (“Robinson Dep.”) [Doc. 83-12] at 10-12.) Defense counsel engaged, contending that witnesses had in fact been provided for each topic. [Id.] Plaintiff's counsel failed to make specific complaints, and repeatedly stated that “We will be in touch,” but appears not to have followed up with any further deposition notices or requests that the Court compel further testimony. [Id. at 11-12.]

Another month passed. On January 13, 2020, the final day of discovery, Defendant's counsel left a voicemail for Plaintiff's counsel, and the two exchanged calls and emails. [See Doc. 83-14.] Plaintiff's counsel then raised various issues regarding the document production and 30(b)(6) depositions, and requested that additional searches be conducted in the email repositories of specific custodians; counsel also discussed the need for a discovery extension to complete the requested searches. [Id.] After some back-and-forth, the IT Department initiated new searches [see id.; see also Doc. 83-15] (see also Slaton Dec. ¶ 9), and the parties reached out to the Court about an extension, culminating in the February 2 extension motion [see Doc. 55]. The communications with the Court pertained only to the supplemental document production and reopening and extending discovery. It did not raise the possibility of Plaintiff moving to compel discovery, any issues with the 30(b)(6) depositions, the need to depose or re-depose witnesses, or potential sanctions.

After the Court reopened and extended discovery, on March 4 and 5, 2020, Defendant produced roughly 200 additional documents as a result of the new searches. [See Docs. 55, 57, 58; see also Doc. 83-16.] As noted, two consent extensions to the dispositive motion deadline were thereafter granted, but no other discovery-related issues came before the Court until Plaintiff raised his present concerns on the eve of summary judgment.

Based upon (1) the delayed production of email documents and the Fitzgibbon call transcript; (2) Defendant's purportedly improper objections to the 30(b)(6) deposition notices and/or the failure to provide witnesses as to all of the noticed topics; and (3) the fact that Defendant's counsel prepared at least one 30(b)(6) witness to testify on topics outside of the witness's personal knowledge,[8] Plaintiff contends that he has been unable to secure desired testimony and, as a result, suffered undue financial costs and irreversible prejudice. [Doc. 76.] In particular, Plaintiff complains that Kirkpatrick and Fitzgibbon's testimonies cannot be meaningfully taken again because (1) the are no longer employees of Defendant and cannot be compelled to testify through Defendant, (2) their memories will have faded further, and (3) they will already know the areas of inquiry. [Id. at 8.] He also complains about the costs of (1) conferring over 30(b)(6) deposition topics and (2) taking less-than-fruitful testimony from the 30(b)(6) witnesses. [Id. at 6-7, 9; see also Doc. 87 at 7-11.]

*5 Based upon the foregoing, Plaintiff asks for sanctions including (a) the grant of summary judgment in his favor; (b) the denial of summary judgment in Defendant's favor; (c) Defendant be precluded from relying on “any document, argument or evidence not properly or timely produced”; and/or (d) costs and fees associated with the “misconduct alleged,” including (i) all deposition costs and fees, (ii) time spent on “follow up discovery,” and (iii) time spent on the present Motion for Sanctions. [Doc. 67 at 9.] Plaintiff does not identify the authority by which he makes this request, and includes only a single legal citation to authority that this court can “impose sanctions pursuant to statutes or its inherent authority.” [Id. (citing Chambers v. NASCO, Inc., 501 U.S. 32 (1991)).]

In response, Defendant first argues that the document productions were substantially justified, since (1) they were provided within a matter of weeks of the IT Department's searches, which were in turn (2) conducted in a timely fashion after Plaintiff served his requests for production on the Board, and that (3) the failure of the earliest searches to retrieve responsive documents was not intentional or the result of bad faith, but simply due to attorney turnover and miscommunication. [Doc. 83 at 11-14, 16-18.] Defendant further argues the March 2020 production was timely, considering that between Plaintiff's requests and the parties' communications, Defendant had no prior reason to identify the specific custodians at issue for searching. [Id. at 14-16.] Additionally, Defendant contends that its discovery errors were harmless, since nothing was withheld intentionally, Defendant's written discovery responses alerted Plaintiff that email searches were being conducted, the communications between the counsel specifically addressed additional searches and productions, and Plaintiff was free to re-depose any witness after the productions were completed. [Id. at 18-22.] Defendant also notes that Plaintiff took no steps to minimize potential harm, such as filing a motion to compel prior to the summary judgment deadline. [Id. at 21-22.]

As to the 30(b)(6) depositions, Defendant contends that its objections were meritorious, its witnesses properly prepared (including as to topics to which it objected), and that if Plaintiff genuinely believed he needed additional testimony, the proper remedy would have been to file a motion to compel, which he did not do. [Doc. 83 at 22-24.]

II. LEGAL ANALYSIS

Although Plaintiff does not explain the legal basis for his motion, there is no question that the Court has authority to sanction parties, in the appropriate contexts, for discovery violations pursuant to its inherent authority and Federal Rule of Civil Procedure 37(c), which provides in relevant part that:

Fed. R. Civ. Proc. 37(c)(1)[9]; see also Mitchell v. Ford Motor Co., 318 F. App'x 821, 824 (11th Cir. 2009) (explaining that “Rule 37 allows the district court to exclude [evidence] as a sanction for a Rule 26 violation”). Because the “preclusion of evidence is not an effective incentive to compel disclosure of information [ ] supportive of the position of the opposing party [that] might be concealed,” see Fed. R. Civ. P. 37(c), advisory committee notes, the Court is also empowered to levy a wide spectrum of sanctions for Rule 26 violations, see Fed. R. Civ. P. 37(c)(1)(A)-(C). Permissible sanctions include ordering payment of reasonable expenses and attorney fees, informing the jury of the party's failure to timely produce documents, directing that certain facts be taken as established, prohibiting the non-disclosing party from supporting or opposing certain claims or defenses, striking pleadings, or rendering default judgment. Id.; see also Fed. R. Civ. P. 37(b)(2)(A)(i)-(vi). District courts have broad discretion to impose sanctions under Rule 37. Chudasama v. Mazda Motor Corp., 123 F.3d. 1353, 1366 (11th Cir. 1997); see also Hearn v. McKay, 603 F.3d 897, 903 (11th Cir. 2010) (holding that district court determinations under Rule 37(c)(1) are review only for abuse of discretion).[10]

*6 To avoid sanctions altogether, the non-disclosing party has the burden of demonstrating that the failure was substantially justified or otherwise harmless. Mitchell, 318 F. App'x at 824 (citing Leathers v. Pfizer, Inc., 233 F.R.D. 687, 697 (N.D. Ga. 2006)). A party's “discovery conduct should be found ‘substantially justified’ under Rule 37 if it is a response to a ‘genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.’ ” In re Delta/AirTran Baggage Fee Antitrust Litig., 846 F. Supp. 2d 1335, 1358 (N.D. Ga. Feb. 3, 2012) (quoting Devaney v. Cont'l Am. Ins. Co., 989 F.2d 1154, 1163 (11th Cir. 1993)). On the other hand, a discovery mistake is harmless “if it is honest [ ] and is coupled with the other party having sufficient knowledge that the material has not been produced.” Id. (quoting Go Med. Indus. Pty., Ltd. v. Inmed Corp., 300 F. Supp. 2d 1297, 1308 (N.D. Ga. 2003)). Whether the opposing party suffered prejudice is central to the harmlessness determination. See Hewitt v. Liberty Mut. Grp., Inc., 268 F.R.D. 681, 683 (M.D. Fla. 2010). As with the decision regarding what sanctions are appropriate, the “the district court has broad discretion in determining whether a violation is justified or harmless under Rule 37.” Pitts v. HP Pelzer Auto. Sys., Inc., 331 F.R.D. 688, 692 (S.D. Ga. 2019), aff'd, 523 F. App'x 580 (11th Cir. 2013) (quoting Abdulla v. Klosinski, 898 F. Supp. 2d 1348, 1359 (S.D. Ga. 2012) (quotation marks omitted)).

The Court now turns to the various discovery complained of by Plaintiff.

A. Delayed Production of Email Documents

The primary concern raised in Plaintiff's motion is Defendant's failure to timely search for and produce email documents responsive to Plaintiff's requests for production on the County. The question now is whether that failure was (1) substantially justified or (2) harmless. As to the first inquiry, the Court finds that the County was not substantially justified in its lackadaisical approach to identifying and collecting potentially responsive documents.

Substantial justification does not turn on bad faith, see Agilysys, Inc. v. Hall, No. 1:16-CV-3557-ELR-JFK, 2019 WL 3483173, at *5 (N.D. Ga. May 29, 2019), and it is fairly undisputed that Defendant and/or its counsel were “not diligent in ensuring that the relevant [email repositories] were searched.” In re Delta/AirTran Baggage Fee Antitrust Litig., 846 F. Supp. 2d at 1357. Counsel did not ensure that the search instructions were sent to the IT Department, did not confirm that the IT Department had run the searches, and did not inquire about the searches until a separate set of requests for production were served on the Board months later. Defendant's four months of inaction in the face of clear discovery requests was simply not reasonable or appropriate.[11] “The federal discovery rules place an affirmative duty upon a party and its counsel to produce not only responsive materials of which they are aware, but also those which they reasonably ought to have been aware.” Agilysys, Inc., 2019 WL 3483173 at *5 (quoting Stallworth v. E-Z Serve Convenience Stores, 199 F.R.D. 366, 368 (M.D. Ala. 2001) (quotation marks omitted)), and “Rule 26(e) does not forgive [a party's] failure to timely conduct an adequate and complete search for responsive documents,” In re Delta/AirTran Baggage Fee Antitrust Litigation, 846 F. Supp. 2d at 1357-58. See also SCADIF, S.A. v. First Union Nat'l Bank, 208 F. Supp. 2d 1352, 1379 (S.D. Fla. 2002) (“[A] failure to timely produce known, requested and discoverable documents is a serious procedural and ethical violation, and one that cannot be dismissed lightly, even where the failure is the result of mere carelessness.”). That Defendant cannot even now fully explain the breakdown in the search protocol and procedures—for example, why the request was never submitted or followed up upon—that led to the present predicament underscores that the conduct was without substantial justification.[12]

*7 The question of harmlessness results in a different call. As noted, in evaluating whether an untimely disclosure was harmless, courts normally focus on the importance of the information and the prejudice to the opposing party. See Lips v. City of Hollywood, 350 F. App'x 328, 340 (11th Cir. 2009) (citing Romero v. Drummond Co., 552 F.3d 1303, 1321 (11th Cir. 2008)).[13] Courts also consider the conduct of the parties, the explanation for the untimely disclosure, the surprise to the opposing party, and the ability to cure any surprise and its effects. See Lamonica v. Hartford Ins. Co. of the Mw., No. 5:20-CV-63-TKW/MJF, 2020 WL 6695198, at *3 (N.D. Fla. Nov. 5, 2020) (collecting cases); Bayer Healthcare Pharm., 2015 WL 11142425 at *8-9; Abdulla, 898 F. Supp. 2d at 1359 (citing Two Men & a Truck Int'l, Inc. v. Res. & Comm. Trans. Co., No. 4:08-cv-067, 2008 WL 5235115, at *2 (N.D. Fla. Oct. 20, 2008)). Innocent mistakes should also be differentiated from intentional acts designed to “game the system.” Lamonica, 2020 WL 6695198, at *3 (citing OFS Fitel, LLC v. Epstein, Becker & Green, P.C., 549 F.3d 1344, 1363 (11th Cir. 2008) and Bisig v. Time Warner Cable, Inc., 940 F.3d 205, 219 (6th Cir. 2019)).

Plaintiff contends that he was prejudiced because, not having emails that established that Kirkpatrick and Fitzgibbon communicated about the write-ups that led to the Plaintiff's separation, (1) he was unable to fully prepare for their depositions and (2) that he was unable to impeach them on that subject, since they testified that they did not recall discussing them. [See Doc. 76 at 4-5; Doc. 87 at 2.] Plaintiff's position, made clear in his summary judgment briefs, is that Kirkpatrick's animus impacted Fitzgibbon's investigation and decision-making. Thus, it is important to Plaintiff to establish that the two communicated during the events leading up to Plaintiff's separation.

But here's the rub: Plaintiff's conduct belies any harm he contends he suffered. Plaintiff requested the email documents from the County in April 2019, but did not comply with the protocol he himself agreed to follow in the Joint Preliminary Planning Report (allowing him to identify custodians and search terms). In May, the County's response indicated that searches were or would be conducted and that responsive email documents would be produced. Despite the fact that none of the requested email documents were produced, Plaintiff took no further action to obtain them—there appear to be no communications with Defendant, there were no concerns raised with the Court, and Plaintiff certainly never sought to compel their production. In fact, the only action Plaintiff appears to have taken was to make virtually identical requests on the Board in late September 2019. By that time, Defendant—not Plaintiff—had already arranged and noticed the third-party depositions of Kirkpatrick and Fitzgibbon (who had not been employed by Defendant for multiple years). And despite being aware of their impending depositions, Plaintiff still took no action to secure the email documents. He simply proceeded with the depositions as arranged by Defendant without raising any concern with Defendant or the Court. Proceeding with these depositions “without entreaty to this Court” on its own “belies a claim of prejudice.” Abdulla, 898 F. Supp. 2d at 1359 (citing Richman v. Sheahan, 415 F. Supp. 2d 929, 940 (N.D. Ill. 2006) and Poe v. Carnival Corp., No. 06-20139-CIV, 2007 WL 129007, at *3 (S.D. Fla. Jan. 15, 2007)). Moreover, during the depositions, Plaintiff probed Kirkpatrick and Fitzgibbon about their interactions and communications during the time leading up to Plaintiff's separation. Although Plaintiff insists in general terms that he has been prejudiced by not having the email documents at that time, and that he could have impeached them with the documents, he has “not cited any specific examples of information [he] wished to obtain or extract but w[as] unable to, nor any questions [he] w[as] unable to ask.” Abdulla, 898 F. Supp. 2d at 1359 (citing Great Northern Ins. Co. v. Ruiz, No. CV 408-194, 2011 WL 321782, at *2 (S.D. Ga. Jan. 28, 2011)). As discussed in more detail below, the emails show only that Kirkpatrick sent copies of write-ups about Plaintiff's purported insubordination to Fitzgibbon, and that Fitzgibbon made some superficial changes. But there was never any dispute that some version of the write-ups were sent to Fitzgibbon, and the Court is at a loss regarding what additional testimony Plaintiff's counsel might have elicited regarding the relatively minor edits Fitzgibbon made, when neither Kirkpatrick nor Fitzgibbon recalled emailing about them in the first place. Ultimately, while the emails may have some importance, their untimely disclose does not appear to have prejudiced Plaintiff's case.

*8 Were that not enough, when Plaintiff did obtain the documents in December 2019, he continued to sit on his hands. He did not seek to redepose Kirkpatrick and Fitzgibbon,[14] did not incur any costs in securing additional testimony or further discovery, and did not seek any redress from the Court. Discovery closed. Discovery was reopened. Plaintiff still took no action. Discovery closed yet again. Not until a week before summary judgment briefs were due did Plaintiff raise a hint of concern with the Court. Even then, during a teleconference with the Court, Plaintiff declined the invitation to reopen discovery or compel further discovery.

Plaintiff asserts that the delay in receiving the email documents was “no fault of Tony Johnson.” [Doc. 76 at 5.] That may be true. But it is also true that any small measure of prejudice resulting from that delay was as much his fault as anyone else, since Plaintiff, fully aware as of May 2019 that email searches were to be conducted, waited for months after an extended discovery period closed to complain. See Wane v. Loan Corp., 926 F. Supp. 2d 1312, 1319 (M.D. Fla. 2013), aff'd on other grounds, 552 F. App'x 908 (11th Cir. 2014) (denying Rule 37 sanctions in part because the plaintiffs did not file a motion to compel when they realized the information was missing); Watkis v. Payless ShoeSource, Inc., 174 F.R.D. 113, 116 (M.D. Fla. 1997) (remarking that a court should factor in “the intransigence of a party” in exercising its discretion under Rule 37).

The bottom line is that Plaintiff was apprised that email searches were to be conducted, was aware that he had not obtained the results of those searches, proceeded with the relevant depositions anyway, and took no action to correct any purported deficiencies in those depositions (for example, by subpoenaing their testimony and seeking costs and fees for the expense) at any time during discovery. The lack of material prejudice, combined with Plaintiff's inaction and Defendant's benign explanation for the delay, leaves the Court with the inescapable conclusion that the error here was harmless,[15] and the sanctions requested by Plaintiff should be DENIED.[16]

B. 30(b)(6) Testimony

Plaintiff complains both about Defendant's objections to his 30(b)(6) deposition notices and the manner and adequacy of the 30(b)(6) deponents' preparations. As to the former, Plaintiff has not identified any objection that he contends lacked justification [see Doc. 76 at 5-6; Doc. 87 at 7-8], and the heart of his grievance appears to be that Defendant filed objections after he believed the parties' disputes over noticed topics were “largely resolved” [Doc. 87 at 8]. Reviewing the communications between the parties, however, it is clear that they were still negotiating over at least five of the noticed topics the same day that Plaintiff filed his second set of 30(b)(6) deposition notices, and that Defendant filed timely objections two days later. [See Doc. 83-1; see also Docs. 52-54.] With the 30(b)(6) depositions scheduled for two days after that, it is unclear how Defendant could have preserved its objections without raising them prior to the deposition. That it was inconvenient or surprising to Plaintiff's counsel does not undercut their reasonableness. As a result, the Court considers Defendant's actions in raising objections to have been substantially justified.

*9 As to the preparation of the witnesses themselves, Plaintiff did not detail any concrete concerns about their ability to answer questions until his reply in support of the Motion for Sanctions, leaving the Court without any response from Defendant on the issue. And while Plaintiff identifies a handful of questions that he contends the witnesses were unable to answer, he does not explain the prejudice suffered by their inability to respond.[17] [See Doc. 87 at 8-11.] But even assuming that the witnesses were inadequately prepared, and that Plaintiff indeed suffered prejudicial harm, the Court still does not consider sanctions appropriate here.

Beyond harmlessness, “[b]y virtue of failing to address a discovery violation when the movant first learns of the issue, a party risks waiving the issue.” Goers v. L.A. Entm't, No. 2:15-CV-412-FTM-99CM, 2017 WL 2578649, at *4 (M.D. Fla. June 14, 2017) (citing United States v. Stinson, No. 6:14-cv-1534-Orl-22TBS, 2016 WL 8488241, at *5 (M.D. Fla. Nov. 22, 2016) and Coleman v. Starbucks, No. 6:14-cv-527-Orl-22TBS, 2015 WL 2449585, at *8 (M.D. Fla. May 22, 2015)). “While there is no local or federal rule setting a precise deadline for the filing of a motion to compel, it is clear that any such motion must be filed within a ‘reasonable’ time period.” Coleman, 2015 WL 2449585, at *8; see also Brandt v. Vulcan, Inc., 30 F.3d 752, 756 (7th Cir. 1994). “A court should consider “such factors as when the movant learned of the discovery violation, how long he waited before bringing it to the court's attention, and whether discovery has been completed.” Stinson, 2016 WL 8488241, at *5 (citing Long v. Howard Univ., 561 F. Supp. 2d 85, 91 (D.D.C. 2008)).

As set forth in great detail above, Plaintiff knew of the purported inadequacy of Defendant's 30(b)(6) deposition testimony in mid-December 2019, chose not to file a motion to compel any additional testimony, and instead waited five months to even bring the matter to the Court's attention—several months after discovery had closed (twice, no less) and on the eve of summary judgment. Delays of many months, particularly when a party fails to raise the issue before discovery has ended, have repeatedly been found to waive a party's right to obtain relief for discovery violations. See Schumann v. Collier Anesthesia, P.A., No. 2:12-CV-347-FTM-29CM, 2017 WL 1323723, at *5 (M.D. Fla. Apr. 6, 2017); Stinson, 2016 WL 8488241, at *5. Plaintiff's decision to wait until the week before summary judgment waives his entitlement to sanctions for any of the purported problems with the depositions, and his request for sanctions in relation to them should therefore be DENIED.[18]

The Court now turns to Defendant's motion for summary judgment.

In its motion, Defendant argues that all of Plaintiff's claims are subject to summary judgment. [Doc. 73-1.] Defendant first argues that Plaintiff failed to timely exhaust his administrative remedies for any conduct prior to November 13, 2015. [Id. at 3-5.] He further argues that to the extent that Plaintiff's discrimination claim encompasses a theory of hostile work environment, it fails, since the alleged harassment was neither sufficiently severe nor pervasive. [Id. at 13-19.] Next, with regard to Plaintiff's discriminatory discharge claim, Defendant contends that Plaintiff cannot establish a prima facie case of discrimination, since Plaintiff cannot identify similarly situated comparators outside of his protected class; and even if he could, he cannot show that Fitzgibbon's legitimate non-discriminatory reason for forcing Plaintiff's separation was pretext for discriminatory animus. [Id. at 5-13.] Finally, Defendant argues that Plaintiff cannot establish the causal element of a retaliatory discharge claim because he lacks evidence showing that Fitzgibbon was aware of any of Plaintiff's protected activity before making his decision; and again, even if he had such evidence, Plaintiff still cannot show that the decision was pretext for retaliation. [Id. at 19-23.]

*10 In his response, Plaintiff does not address Defendant's arguments regarding exhaustion of his claims for conduct predating November 2015 or its argument as to any putative hostile work environment claim. [Doc. 85.] Plaintiff opposes summary judgment on his discriminatory discharge claim, and contends that based upon Kirkpatrick's statements about correcting the demographic makeup of the TAO and Fitzgibbon's frustration with African American employees, there is direct evidence of discriminatory animus in this case, and that the two worked together to terminate Plaintiff's employment. [Id. at 8-15.] Plaintiff also contends that his retaliatory discharge claim should survive, arguing that there is sufficient circumstantial evidence that Fitzgibbon knew about Plaintiff's complaints of discrimination at the time he made his decision, and that given the temporal proximity, causation can be inferred. [Id. at 15-18.] Finally, Plaintiff argues that there is sufficient evidence of pretext that a reasonable factfinder could conclude the proffered reasons were pretext for discriminatory and/or retaliatory intent. [Id. at 18-19.]

I. SUMMARY JUDGMENT STANDARD

A court should grant summary judgment when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The movant bears the initial burden of showing that it is entitled to summary judgment. Id. (“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (“Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.”); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (holding that Celotex did not change the rule that the movant bore the initial burden, and stating, “Even after Celotex it is never enough simply to state that the non-moving party cannot meet its burden at trial”). The movant may carry its burden by showing the court that there is “an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325.

“Only when that burden has been met does the burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment.” Clark, 929 F.2d at 608. The nonmovant is then required “to go beyond the pleadings” and to present competent evidence in the form of affidavits, answers to interrogatories, depositions, admissions and the like, designating “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324 (quotation omitted); see Fed. R. Civ. P. 56(c). “[M]ere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005). Resolving all doubts in favor of the nonmoving party, the court must determine “whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In evaluating a summary judgment motion, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [the non-movant's] favor. Id. at 255.

II. FACTS

In setting out the facts of this case, where possible, the Court relies on Defendant's Statement of Material Facts to Which There are No Genuine Issues to be Tried (“DSMF” [Doc. 73-8]), Plaintiff's Statement of Material Facts Remaining for Trial (“PSAF” [Doc. 85-2]), and the responses thereto (“R-DSMF” [Doc. 85-1] and “R-PSAF” [Doc. 91-3]). The Court has also reviewed Plaintiff's statement of material facts in support of his own motion for summary judgment (“PSMF” [Doc. 74-1]) and Defendant's responses (“R-PSMF” [Doc. 82]),[19] and conducted its own review of the record. See Fed. R. Civ. P. 56(c)(3). The Court proceeds chronologically for the most part, but addresses other matters as it deems appropriate to the factual recitation. Taking the facts in the light most favorable to Plaintiff as the non-moving party, then, the relevant facts are as follows.

A. Plaintiff's Position with Defendant

*11 Plaintiff began his employment with the County Tax Assessors Office (“TAO”) in 1997 as a Data Collector. (DSMF ¶ 1; PSAF ¶ 1.) During his time in the TAO, Plaintiff was promoted three times. (PSAF ¶ 2.) In early 2010, Plaintiff was promoted to Appraiser Manager in the Real Property Division, and began reporting to Kirkpatrick, the Deputy Chief Appraiser. (DSMF ¶ 2; PSAF ¶ 2.) As the Appraiser Manager for the Real Property Division, Plaintiff was responsible for managing the appraisers and the property values for 17th District in the Buckhead area of Atlanta. (DSMF ¶ 12.) Although the Appraiser Manager position was an unclassified position—which meant that Plaintiff could be dismissed from his employment with the TAO without cause or for no reason at all—Fitzgibbon testified that the Plaintiff was still subject to Fulton County's Personnel Regulations, as were the personnel decisions pertaining to him. (DSMF ¶ 11; R-DSMF ¶ 11; Fitzgibbon Dep. 16-17, 57-59.)

Kirkpatrick, Plaintiff's immediate supervisor, oversaw TAO's residential appraiser managers and reported to Fitzgibbon, the Chief Appraiser of the TAO. (DSMF ¶ 5.) Both Kirkpatrick and Fitzgibbon are white. (PSAF ¶¶ 3-5.) It was not unusual for a deputy chief appraiser to make suggestions regarding moving appraisers to different departments (DSMF ¶ 7), and while Kirkpatrick did not have the independent authority to hire or fire employees, he did have authority to reassign appraisers to different divisions as a non-disciplinary matter (DSMF ¶ 13). Along these lines, during the course of Plaintiff's employment, Kirkpatrick reorganized several divisions, and there was a period of time where the TAO had only three Appraiser Managers in the Real Property Division due to budget cuts. (DSMF ¶ 4.) Multiple employees, including Plaintiff, complained about being understaffed (DSMF ¶ 14)[20] , though it is undisputed that none of the reorganizations were related to Plaintiff's performance or otherwise made to discipline Plaintiff (DSMF ¶ 8). Despite being understaffed, Plaintiff's division maintained its production levels. (DSMF ¶ 10.)

During the time Fitzgibbon served as the TAO's Chief Appraiser,[21] Fitzgibbon was the only person who had the authority to suspend or terminate TAO employees. (DSMF ¶ 16.) Supervisors such as Kirkpatrick could still make disciplinary action recommendations; and Fitzgibbon would then conduct an investigation (including interviews), discuss what disciplinary action might be taken based on the guidelines in the Personnel Regulations, take action as he deemed necessary, and explain to the employee why the action was taken.[22] (DSMF ¶ 15.)

B. Plaintiff's Employment and Problems with Kirkpatrick and Fitzgibbon

While Plaintiff was employed as the Appraiser Manager under Kirkpatrick, the two had a contentious relationship. Plaintiff was “a little aggressive” and had complaints from taxpayers, tax attorneys, and tax representatives. (DSMF ¶ 18; Fitzgibbon Dep. 16.) At the same time, Plaintiff complained to Fitzgibbon about Kirkpatrick being argumentative, yelling at everyone, and treating Plaintiff disrespectfully and unfairly, though Fitzgibbon did not recall terms such as “racism” or “hostile work environment” being used. (DSMF ¶ 33; Fitzgibbon Dep. 148.)

Plaintiff has identified a number of incidents prior to his separation that he ascribes to discriminatory animus:

As it pertains to the April 2013 email, although Fitzgibbon testified that the statement was intended to be a military or naval reference and not racist (Fitzgibbon Dep. 70; see also Kirkpatrick Dep. 65),[25] Plaintiff believed it was a reference to slaves being whipped or beaten (Pl. Dep. 93-94). Plaintiff did not initially complain to the DCRC when he received the email from Kirkpatrick, fearing inaction and/or retaliation (Pl. Dep. 132-33, 144-45). Plaintiff decided to speak with a DCRC employee about it later; however, as Plaintiff feared, the DCRC employee said it was not “enough” and suggested Plaintiff address the matter directly with Fitzgibbon. (Pl. Dep. 146, 157-59; Kirkpatrick Dep. 59, 65.)

At some point after that, Plaintiff spoke with Fitzgibbon about the email and other issues, raising concerns about racism. (Pl. Dep. 159-62.) Among those other issues, Plaintiff complained to Fitzgibbon about the Mormon comment, and according Plaintiff, Fitzgibbon responded that he “didn't want to hear anything about racism.” (Id. 96-97.)[26] When Plaintiff suggested he would act on Kirkpatrick's racist behavior, Fitzgibbon told him not to have a “knee-jerk” reaction, that he (Fitzgibbon) would look into who Plaintiff could speak to, and that he (Fitzgibbon) would set up a meeting to address Plaintiff's concerns. (PSAF ¶¶ 27-28.) Plaintiff followed up with Fitzgibbon about the meeting, but Fitzgibbon never set it. (PSAF ¶ 29.)

C. Events Leading to Plaintiff's Separation

*13 In February 2015, Kirkpatrick emailed Fitzgibbon to raise issues he (Kirkpatrick) was having with Plaintiff's purported insubordinate and disrespectful behavior.[27] (DSMF ¶ 32; see also Fitzgibbon Dep. Ex. 1.) Nothing appears to have come of the issue at the time. Plaintiff then went out on medical leave from approximately June until November 2015. (DSMF ¶ 34.) In November, the TAO was approaching the end of the appeals cycle, and because the region Plaintiff oversaw had the highest rates for appeals, Kirkpatrick assigned some of the appeals in Plaintiff's region to other managers. (DSMF ¶ 35.)

On November 23, 2015, Plaintiff approached Kirkpatrick to ask him about the delegation of certain work assignments, in particular who had made recommendations on an appraisal while Plaintiff was out on leave. (Pl. Dep. 171-73; see also DSMF ¶ 36; R-DSMF ¶ 36; PSAF ¶ 54; R-PSAF ¶ 54.) Plaintiff was concerned that records were missing notes that explained why changes had been made to appraisals. (Pl. Dep. 171.) Kirkpatrick explained that another appraiser manager in the Residential Division, Kevin Maxey, had made the recommendations. (DSMF ¶ 37; R-DSMF ¶ 37.) Plaintiff asked Kirkpatrick why he chose Maxey to handle appeals instead of another appraiser manager.[28] (Id.) Plaintiff then raised a second issue, about another employee handling an appraisal Plaintiff believed he should have been assigned; Kirkpatrick responded that it because Plaintiff was out on leave. (DSMF ¶ 41; R-DSMF ¶ 41; Pl. Dep. 175-76.) Kirkpatrick then became very defensive and angry. (PSAF ¶ 55.)

It is undisputed that during the course of the meeting, both Plaintiff and Kirkpatrick became agitated and elevated their voices, though no slurs were used. (DSMF ¶¶ 38-39.) During the back-and-forth, Kirkpatrick shouted at Plaintiff and banged on the desk,[29] though he did not believe he frightened Plaintiff. (Kirkpatrick Dep. 67-68; PSAF ¶ 56.) Kirkpatrick repeatedly asked Plaintiff who he worked for[30]; and while Kirkpatrick testified that the question was meant to emphasize that he was Plaintiff's superior and that Plaintiff was being disrespectful, Plaintiff interpreted the questioning as establishing Kirkpatrick's dominance over him. (Kirkpatrick Dep. 30-31, 41; Pl. Dep. 94, 188.) Regardless, Kirkpatrick acknowledged that his conduct during the meeting could be taken as disrespectful. (PSAF ¶ 63.) Eventually, Plaintiff asked for the meeting to end and asked for his union representative. (R-PSAF ¶ 66; see also Fitzgibbon Dep. Ex. D5.)

After the meeting, Kirkpatrick told Plaintiff to leave the premises, though he allowed Plaintiff to see Fitzgibbon first. (Kirkpatrick Dep. 122-24, 128, 187-88.) Plaintiff went to speak with Fitzgibbon (who was not there), stopped to drop off some documents, and sent out an email from his desk. (DSMF ¶ 46.) When Plaintiff came back down from Fitzgibbon's office, Kirkpatrick approached and followed Plaintiff, getting so close that Plaintiff had to put up his arm as a barrier. (PSAF ¶¶ 73, 74.) After the confrontation, Kirkpatrick called Fitzgibbon to inform him of the incident (DSMF ¶ 47; PSAF ¶ 75), and placed Plaintiff on paid leave (DSMF ¶ 48; see also Pl. Dep. Ex. 4). Around that time, Kirkpatrick was also seen inquiring about procedures for firing an employee,[31] and it was clear to Fitzgibbon that Kirkpatrick was “hot” and wanted Plaintiff fired, or at least disciplined. (Fitzgibbon Dep. 197-200; Kirkpatrick Dep. Ex. P3; PSAF ¶ 80.)

*14 Plaintiff prepared a written statement the following day, November 24, which complained about Kirkpatrick's “demeaning, disrespectful and threatening” conduct during the meeting. (PSAF ¶ 76.)

On November 27, Kirkpatrick prepared two write-ups of Plaintiff, for insubordination under Article 11A and Article 11B of the Personnel Regulations.[32] (DSMF ¶ 49; see also Kirkpatrick Dep. Exs. D4, D5.) The write-up under 11A was related to the disrespect Plaintiff used in speaking with Kirkpatrick during the meeting. (Kirkpatrick Dep. 50, Ex. D5.) The write-up under 11B was for failing to leave the premises immediately and failing to answer the question “Who do you work for?” (PSAF ¶ 85.) Although Plaintiff was not technically a classified employee subject to the Personnel Regulations,[33] the cited Article 11A calls for a maximum penalty of a 30-day suspension for the first offense, and Article 11B calls for a maximum penalty of a 3-day and 10-day suspension for a first and second offense, respectively. (Kirkpatrick Dep. Exs. D4, D5.)[34] Kirkpatrick did not affirmatively recommend suspension or discharge in his write-ups. (DSMF ¶ 51; R-DSMF ¶ 51.) Kirkpatrick testified that it was not his decision to make. (Kirkpatrick Dep. 61.) Kirkpatrick sent the write-ups to Plaintiff on November 27. (PSAF ¶ 95.)

On December 4, 2015, Plaintiff filed an internal complaint with the DCRC, alleging discrimination based on color and race. (DSMF ¶ 52.) According to the DCRC Director, the operating procedures in place at the time of Plaintiff's complaint dictated how the DCRC handled the complaint. (Dep. of Niger Thomas (“Thomas Dep.”) [Doc. 75] at 19.) After receipt of the complaint, the DCRC would “qualify” it for investigation, assign it to an investigator, and the investigator would notify the complainant's department of the investigation via intraoffice mail to initiate the investigation. (See id. 19-20.) In Plaintiff's case, the DCRC would have notified Fitzgibbon of the complaint and investigation via intraoffice mail. (Id. 21.) That intraoffice notification was sent on December 9. [Doc. 91-1.]

On December 8, Plaintiff also sent a letter complaining about Kirkpatrick's alleged “workplace bullying” and discrimination to the County Manager, along with attached statements. (Pl. Dep. 237-39, Ex. D11.) Plaintiff testified that when he followed up on the status of the complaint on December 18, he was told it had also been forwarded to Fitzgibbon. (Pl. Dep. 239.)[35]

*15 Separately on December 8, 2015, Kirkpatrick forwarded Fitzgibbon a copy of two write-ups for Plaintiff's conduct during the November 23 meeting; the attached documents were named for “first” and “second” offenses. (See FC002213-FC002214, FC002251 [Doc. 84-5].) Kirkpatrick asked Fitzgibbon to look at them, and “proofread it as well.” (Id.) Fitzgibbon edited it and sent it back roughly two hours later, highlighting “a few suggested changes,” which included at least one grammar change. (Id.)[36] They contained much of the same substantive allegations of misconduct as were contained in the write-ups issued on November 27, but added more detail. (Compare Kirkpatrick Dep. Ex. P4, with P7 and Ex. P5 with P8.)[37]

On December 9, 2015, Fitzgibbon held a meeting with Plaintiff and Kirkpatrick to discuss the incident on November 23 and review possible actions. (DSMF ¶ 55.) At the meeting, Kirkpatrick handed printed versions of the revised write-ups to Plaintiff and Fitzgibbon. (Kirkpatrick Dep. 52; Pl. Dep. 212.) Following the December 9 meeting, Fitzgibbon conducted an investigation into the events, which included interviewing employees and listening to a partial tape recording of the incident. (DSMF ¶ 57; PSAF ¶ 118.) Fitzgibbon testified that he discredited as inaccurate or coached a “number” of the statements provided by African-American employees, instead largely crediting Kirkpatrick's partial recording of the incident. (Fitzgibbon Dep. 48-50.) Fitzgibbon testified that he considered Plaintiff's actions insubordinate because Plaintiff questioned Kirkpatrick's authoritative decisions, talked over Kirkpatrick, failed to leave the premises immediately, and showed disrespect for Kirkpatrick's position as Plaintiff's supervisor. (Id. 49-50, 210-13, Ex. D5.) In reaching that conclusion, Fitzgibbon admitted that Kirkpatrick had some responsibility for this situation, and that the meeting which led to the alleged insubordination went way past the point that it should have because of Kirkpatrick's actions. (PSAF ¶ 105.) Separately, in a letter to Kirkpatrick on December 11, Fitzgibbon reprimanded Kirkpatrick in a written letter, explaining that interviewed employees shared that during the November 23 incident, Kirkpatrick had been “loud, aggressive, and threatening” and had treated Plaintiff “like a child”; and that they were “disturbed by [his] behavior,” and “felt it unacceptable that a senior level manager would treat a lower level manager or staff member with disrespect and lack of common curtesy.” (Kirkpatrick Dep. Ex. P9; see also Fitzgibbon Dep. Ex. P5.)[38]

*16 On December 15, Fitzgibbon sent Plaintiff a letter stating that he was “considering dismissing” Plaintiff for insubordination under Article 11B of the Personnel Regulations in connection with the events of November 23, but invited Plaintiff to write to or meet with him to provide more information before making the final decision, reserving a time at 9:00 a.m. on December 17 for the purpose. (PSAF ¶ 121; Pl. Dep. Ex. 12.) Fitzgibbon testified that he sent the letter because the “personnel guidelines require” that a such a letter be delivered before a “personnel action.” (Fitzgibbon Dep. 58.) Fitzgibbon testified that barring further evidence coming to light, he had mostly made the decision to dismiss Plaintiff prior to the December 17, 2015 meeting. (Id. 231.)

Plaintiff attended the meeting and complained again about discrimination, but Fitzgibbon again said he did not want to hear about racism. (Pl. Dep. 244-46.) Later that day, Fitzgibbon issued another letter to Plaintiff, indicating that he had decided to dismiss Plaintiff, but also offering Plaintiff a chance to retire in lieu of being discharged. (DSMF ¶ 65; PSAF ¶ 125; see also Fitzgibbon Dep. Ex. D10.) While Plaintiff accepted retirement, he testified that he felt “forced” to do so, since he was concerned about retaining his benefits and revealing to future employers that he had been fired. (Pl. Dep. 77-79, 259-60.) In 2016, Fitzgibbon referred to Plaintiff's separation as a firing. (Fitzgibbon Dep. Ex. P1.)

On March 21, 2016, Plaintiff filed a supplement to his internal complaint with the DCRC in order to include retaliation as part of the alleged discrimination that he received. (DSMF ¶ 69.) Fitzgibbon testified that he did not become aware of Plaintiff's DCRC complaint until “sometime” after Plaintiff's separation. (Fitzgibbon Dep. 65-66.)

D. Fitzgibbon and Kirkpatrick's Statements About Race in the TAO

Both Fitzgibbon and Kirkpatrick offered quite a bit of testimony about the demographics of the County government and how the racial makeup impacted the TAO. As noted above, the TAO staff was approximately 92 percent African American. (PSAF ¶ 33.) Fitzgibbon testified that this racial makeup made it hard to do his job, explaining that as a white manager he could not manage, train, or discipline employees without facing a claim of discrimination. (PSAF ¶ 34; see also Fitzgibbon Dep. 144.)[39] Fitzgibbon also testified that that racism is “thrown out for everything. Everybody uses it out of context for everything. It is the normal response .... [when a] white guy says something a black guy does not like ....” (Fitzgibbon Dep. 234.) Fitzgibbon explained that any time he disciplined an employee, he would be accused of being racist and an appeal would be filed; it was “automatic”; and he could not recall anyone just “taking their medicine.” (Id. 126-28, 131-32.) Fitzgibbon testified that it was fair to say that there was some institutional bias at the County, which translated to an “easier path” for African-Americans, and at least part of the problem was that the County personnel board made it “impossible to terminate” anyone. (Id. 86-87.) Fitzgibbon stated that he was frustrated and had to walk on eggshells, “treading lightly” around black employees “when he was trying to correct decades of ... basically incompetence or uncooperativeness.” (Id. 129.)

In a February 2016 email to the DCRC head, Fitzgibbon wrote that “when an African-American employee is involved with a Caucasian manager the first reaction is for the employee to run to your office to scream discrimination,” which the DCRC head took exception to. (Fitzgibbon Dep. 238, Ex. P7.) Fitzgibbon thought that the County believed the accusers over their bosses “all the time.” (Id. 137.) Fitzgibbon also testified that while “it doesn't make any different what color skin he has,” he thought the following about the African-American personnel director: “I just think him being black might have been a coincidence to him being belligerent and thinking that he was in control of our office when in fact he was not. Refusing to follow his own guidelines when it suited him, so no, I didn't like him.” (Id. 101.) When Fitzgibbon was discharged the following year, he believed his replacement was selected in large part because he was African American. (Id. 121-22.)

*17 Along similar lines, Kirkpatrick testified that with a “very diverse workforce,” racism was a very real part of being employed at the County; that there were claims of racism and reverse racism; and that race plays a “very big part in the day-to-day relationships” there. (Kirkpatrick Dep. 160.)[40] Kirkpatrick felt that there was a pattern of disparate treatment that negatively affected white employees, which he attributed to the TAO not being representative of the “demographic makeup of the County”—that is, it was “damn near 90 percent African-American, in a county that's only about 45 to 50 percent African-American.” (Id. 156-57.) Kirkpatrick thought that white appraisers were fired when African-American appraisers would only be demoted or given an opportunity to retire, and believed that there was a “high likelihood” that he would have been discharged because he was white, had he not left the TAO for a new job. (Id. 157, 160-61.) Kirkpatrick said that the fact that his staff was approximately 80 percent African-American “presented difficulties,” because “if you end up disciplining someone who's African-American ... they come out of the woodwork with ‘slave masters’ and all this other stuff.” (Id. 166.) When Kirkpatrick was contacted by the DCRC as part of its investigation into Plaintiff's claims, Kirkpatrick claimed that that its investigative mechanisms “may have been bastardized into a vehicle for further committing the same reverse racism” and that he (Kirkpatrick) was its “intended victim.” (Id. P11.)

Although it is undisputed that Kirkpatrick never told Plaintiff that he preferred a white man be promoted rather than Plaintiff (DSMF ¶ 3), Kirkpatrick testified that around the time Plaintiff was separated or sometime after, he came to feel that race “certainly needed to be kept on the scale when you were hiring and firing folks,” and that “if there was a disparity,” it needed to be looked at. (Kirkpatrick Dep. 161-63.) Kirkpatrick believes that the County tax commissioners had a preference for black management. (Id. 181-82.)

E. DCRC Investigation Results

On April 29, 2016, the DCRC issued an Investigative Report with the following findings: (a) Plaintiff was not subject to a prejudicial acts or harassing behavior; (b) there was no evidence of a racially hostile work environment; (c) no racial epithets were uttered to Plaintiff; (d) Kirkpatrick's bullying and aggressive behavior was done to all employees regardless of race; and (e) the harassing behavior was not severe or pervasive. (DSMF ¶ 70; see also Pl. Dep. Ex. 15.) Even so, it also concluded the witness testimony indicated the “possible existence of racial insensitivity and unconscious bias,” necessitating a “compliance review to assess the work environment further.” (PSAF ¶ 128; Pl. Dep. Ex. 15 at 13.)

The DCRC found that Kirkpatrick's alleged directive to Plaintiff to immediately leave the premises was not contained in the partial recording of the meeting. (PSAF ¶ 110.) It also determined that Fitzpatrick did not actually consider Plaintiff's refusal to answer Kirkpatrick's questioning “Who do you work for?” to be insubordinate, despite it being one of the bases for disciplining Plaintiff. (Thomas Dep. Ex. P6 at 9-11.) Notably, the DCRC submitted at least two requests for information to Fitzgibbon relating to the investigation, but Fitzgibbon did not respond. (Id. 29-30; Ex. P6 at n.14.) Indeed, Fitzgibbon did not respond when the investigator asked why Plaintiff's actions were so severe that they merited discharge. (PSAF ¶ 112.) The investigator could not recall another time where she made a request for information during an investigation that was simply ignored. (Thomas Dep. 30.)

After Plaintiff was separated from employment, the DCRC performed a compliance investigation, separate from the investigation into Plaintiff's allegations. (PSAF ¶ 136.) As part of the investigation, employees alleged that the TAO is divided political and racially; complained that Kirkpatrick and Fitzgibbon do not care about black employees; and complained about racially based comments. (PSAF ¶¶ 143, 144.) Fitzgibbon claimed that it was apparent that the “staff investigators, all African-American, and those interviewed, also African-American, have an agenda that smacks of reverse discrimination.” (PSAF ¶ 149; R-PSAF ¶ 149; Kirkpatrick Dep. 185, Ex. P15 at 4.) Fitzgibbon also wrote in an August 2016 email that it was “unfortunate that [the investigator] formed an African-American conspiracy theory, and somehow that would improve morale within Fulton County.” (Kirkpatrick Dep. Ex. P15 at 4.) Indeed, Fitzgibbon believed that a number of African American employees were conspiring to get rid of him. (Fitzgibbon Dep. 105.) Fitzgibbon believed the purpose of the conspiracy was to make things better for black employees once Fitzgibbon was discharged. (Id. 111, 116.)

F. Plaintiff's Charge of Discrimination

*18 On May 13, 2016, Plaintiff filed a charge of discrimination of discrimination with the Equal Employment Opportunity Commission (“EEOC”), alleging, inter alia, race discrimination and retaliation claims. [Doc. 15-1.] On May 24, 2019, the EEOC issued a determination that there was insufficient evidence to support his discrimination claims, but found reasonable to cause to conclude that Plaintiff was forced to retire in retaliation for engaging in protected activity. [Doc. 15-2.] On August 16, 2018, Plaintiff received his notice of right to sue. [Doc. 15-3.]

III. LEGAL ANALYSIS

The Court addresses each of Defendant's arguments for summary judgment below.

To the extent Plaintiff ever sought to assert a hostile work environment harassment claim, or any other claim for conduct before November 2015, by not responding to Defendant's summary judgment arguments, he has abandoned those claims. See, e.g., Resolution Tr. Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995) (“[T]he onus is upon the parties to formulate arguments; grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned.” (citing Road Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994))); Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir. 2001) (finding claim abandoned when argument not presented in initial response to motion for summary judgment); Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000) (failure to brief and argue issue at the district court is sufficient to find the issue has been abandoned). Accordingly, the undersigned RECOMMENDS that Defendant's motion for summary judgement be GRANTED with regard to any Title VII claims based upon conduct before November 13, 2015, including any claims for hostile work environment harassment.

B. Discriminatory Discharge

Title VII prohibits an employer from “discriminat[ing] 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). Claims brought under Title VII require proof of intentional discrimination and should be analyzed together. See Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). Accordingly, in order for Plaintiff to prevail on his discrimination claim, he must show that Defendant intentionally discriminated against him on the basis of his race using direct evidence, statistical evidence that shows a pattern or practice of discrimination, or circumstantial evidence based on the multi-pronged test outlined in McDonnell Douglas v. Green, 411 U.S. 792 (1973). See Kilpatrick v. Tyson Foods, Inc., 268 F. App'x 860, 861 (11th Cir. 2008); see also Denney v. City of Albany, 247 F.3d 1172, 1182 (11th Cir. 2001) (citing EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir. 2000)). Plaintiff contends he has direct evidence of discrimination, while Defendant denies that he has even circumstantial evidence of discriminatory intent. Both are mistaken.

Plaintiff's initial argument—that he has proffered direct evidence of discrimination—fails. Direct evidence of discrimination is evidence that reflects “a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee.” Damon v. Fleming Supermkts. of Fla., Inc., 196 F.3d 1354, 1358-59 (11th Cir. 1999). In other words, the evidence must indicate that the complained-of employment decision was motivated directly by the decisionmaker's unlawful animus “without inference or presumption.” Kilpatrick, 268 F. App'x at 861-62; see also Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1227 (11th Cir. 2002). As a result, “only the most blatant remarks, whose intent could be nothing other than to discriminate” will constitute direct evidence of discrimination. Scott, 295 F.3d at 1227; see also Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081-82 (11th Cir. 1990). Here, an example of “direct evidence would be a management memorandum saying, ‘Fire [Johnson]—he is [Black].’ ” Earley, 907 F.2d at 1082; see also Harris v. Shelby Cnty. Bd. of Educ., 99 F.3d 1078, 1083 n.2 (11th Cir. 1996) (“A quintessential example of direct evidence in a retaliation case is: ‘Fire [Plaintiff] – he gave the most damning deposition testimony....’ ”) (quoting Earley, 907 F.2d at 1801). Moreover, remarks unrelated to the decision-making process itself are not direct evidence of discrimination. Scott, 295 F.3d at 1228; Bass v. Bd. of Cnty. Comm'rs, Orange Cnty., 256 F.3d 1095, 1105 (11th Cir. 2001); see also Williamson v. Adventist Health Sys./Sunbelt, Inc., 372 F. App'x 936, 940 (11th Cir. 2010) (“To qualify as direct evidence of discrimination, we require that a biased statement by a decision-maker be made concurrently with the adverse employment event ....”).

*19 The problem with Plaintiff's position is that none of the evidence he sets forth as direct evidence of discrimination pertains directly to the decision to terminate his employment. While Plaintiff points to Kirkpatrick's deposition testimony, revealing his desire to align the demographics of the TAO with those of the County generally [see Doc. 85 at 9-10], Plaintiff has not presented evidence that directly ties such sentiments to the Kirkpatrick's write-ups of Plaintiff, much less the decision-making process resulting in Plaintiff's separation. Indeed, Kirkpatrick testified that he came to feel this way only after Plaintiff's retirement, which if credited, would severe any connection to the separation decision. The same goes for Fitzgibbon's testimony that Plaintiff relies on here—namely, his frustration at the racial makeup of Defendant's workforce, which he believed made his job as a manager more difficult—because again, such generalized statements do not immediately bear on Fitzgibbon's decision to force Plaintiff's separation. In both instances, to believe Plaintiff's position, a fact-finder must infer (1) that the statements evince a discriminatory animus, and (2) that animus was great enough that the choice to terminate Plaintiff's employment was most likely motivated by intentional discrimination. Because there is nothing to directly connect these or any other remarks to the decision to separate Plaintiff, see Scott, 295 F.3d at 1228; Bass, 256 F.3d at 1105, he cannot demonstrate discriminatory intent without multiple inferences, and therefore has not offered direct evidence of discrimination. Kilpatrick, 268 F. App'x at 861-862; Williamson, 372 F. App'x at 940.

Because Plaintiff has presented no direct evidence of discrimination (nor statistical evidence), he must prove discrimination through circumstantial evidence, invoking the McDonnell Douglas burden-shifting analysis. See Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir. 1997). Under the McDonnell Douglas framework, the plaintiff first has the burden of establishing a prima facie case of discrimination on the basis of race. Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000). If the plaintiff meets his burden, the burden then shifts to the defendant to articulate legitimate, nondiscriminatory reasons for the adverse employment action. Chapman, 229 F.3d at 1024. This burden is one of production, not persuasion, and is “exceedingly light.” Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1061 (11th Cir. 1994); see also Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1141 (11th Cir. 1983). If the defendant does so, the plaintiff is then given a final opportunity to show that the defendant's proffered nondiscriminatory reasons were merely a pretext for discriminatory intent. Chapman, 229 F.3d at 1024.

To establish a prima facie case of race discrimination, a plaintiff must typically show that (1) he belongs to a protected class; (2) he was qualified to do the job; (3) he was subjected to an adverse employment action; and (4) that the defendant treated similarly situated employees outside his protected class more favorably or, in the case of discharge, that he was replaced by a person from outside his protected class. Howard v. Ore. Television, Inc., 276 F. App'x 940, 942 (11th Cir. 2008); Maynard v. Bd. of Regents of Div. of Univ. of Fla. Dep't of Educ. ex rel. Univ. of S. Fla., 342 F.3d 1281, 1289 (11th Cir. 2003).

In this case, the parties appear to agree that Plaintiff can establish the first three elements of a prima facie case of discrimination. Defendant contends, however, that Plaintiff cannot make out the final element, because there are no comparators—similarly situated in all material respects, see Lewis v. City of Union City, Georgia, 918 F.3d 1213, 1224 (11th Cir. 2019)—outside of Plaintiff's protected class who were treated better than Plaintiff. While Defendant may be correct that there are no proper comparators in this case, that would almost certainly be true no matter what, since over 90 percent of the TAO was African American. Regardless of what motivated Kirkpatrick and Fitzgibbon's conduct towards Plaintiff, then, this formulation of the prima facie case would likely not capture it. “This, of course, is perfectly logical. Not every employee subjected to unlawful discrimination will be able to produce a similarly situated comparator. Among other things, a proper comparator simply may not exist in every work place.” Lewis v. Union City, 877 F.3d 1000, 1018 (11th Cir. 2017), vacated on other grounds, 893 F.3d 1352 (11th Cir. 2018) and 918 F.3d 1213 (11th Cir. 2019).

*20 Luckily for Plaintiff, “[t]he methods of presenting a prima facie case are flexible and depend on the particular situation.” Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010) (citing Wilson, 376 F.3d at 1087). Indeed, a prima facie case:

Schoenfeld v. Babbitt, 168 F.3d 1257, 1268 (11th Cir. 1999) (quoting Hill v. Metro. Atlanta Rapid Transit Auth., 841 F.2d 1533, 1540 (11th Cir. 1988)) (quotation marks omitted). More recently, where a plaintiff does not have a comparator to point to, the Eleventh Circuit has held that a prima facie case may also be made by showing a “ ‘convincing mosaic’ of circumstantial evidence that warrants an inference of intentional discrimination.” Lewis, 918 F.3d at 1221 n.6 (citing Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)).

In Smith, the Eleventh Circuit stated that “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 case,” and that a plaintiff can survive summary judgment if he “presents circumstantial evidence that creates a triable issue concerning the employer's discriminatory intent.” 644 F.3d at 1328 This “convincing mosaic” may substitute for both the prima facie case of discrimination and a demonstration of pretext. King v. Ferguson Enters., Inc., 971 F. Supp. 2d 1200, 1217-18 (N.D. Ga. 2013), aff'd, 568 F. App'x 686 (11th Cir. 2014); see also Dukes v. Shelby Cnty. Bd. of Educ., 762 F. App'x 1007, 1011-12 (11th Cir. 2019) (holding that the “convincing mosaic” method is a totality of the circumstances analysis that is not subject to the formalities of the McDonnell Douglas test). Indeed, the analysis

Scott v. Soc. Involvement Missions, Inc., No. 1:17-cv-4963-AT-CCB, 2020 WL 7237702, at *4 (N.D. Ga. Dec. 9, 2020) (citing Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249 (11th Cir. 2012)). Even so, the Eleventh Circuit has specifically recognized three categories of circumstantial evidence that are relevant under the mosaic approach:

Lewis, 934 F.3d at 1185 (citing Lockheed-Martin, 644 F.3d at 1328) (internal quotation marks and alteration omitted); see also Smith v. City of New Smyrna Beach, 588 F. App'x 965, 976 (11th Cir. 2014).

*21 Under a convincing mosaic approach, Plaintiff's discrimination claim survives summary judgment. Although Plaintiff does not name it as such in his brief, he offers numerous pieces of evidence that would support it, in particular:

Taking the foregoing facts in the light most favorable to Plaintiff creates a triable issue concerning Defendant's discriminatory intent. Plaintiff's supervisors made a number of both ambiguous and explicit statements about that could be reasonably understood to manifest discriminatory intent. In particular, Kirkpatrick's and Fitzgibbon's statements during Plaintiff's employment—though admittedly ambiguous—could reasonably be construed to be strong circumstantial evidence of discriminatory bias; indeed, the use of terms like flogging, breeding, and cursed in relation to African-American subordinates is suspect. See Ross v. Rhodes Furniture, 146 F.3d 1286, 1292 (11th Cir. 1998) (noting that discriminatory comments, although not direct evidence of discrimination, may provide circumstantial evidence that, when read in conjunction with the entire record, show a decisionmaker's discriminatory attitude). Likewise, a reasonable factfinder could disbelieve Kirkpatrick and Fitzgibbon's deposition testimony that it was only after Plaintiff's separation that they came to hold their beliefs about the need to correct the demographic makeup of the County government; and could instead conclude that they harbored a desire reduce the percentage of African-American employees at the time Plaintiff was separated. Padilla v. N. Broward Hosp. Dist., 270 Fed. App'x 966, 971 (11th Cir. 2008) (discriminatory intend may be found where the decisionmaker regarded the protected characteristic as a negative factor) (citing Allison v. Western Union Tel. Co., 680 F.2d 1318, 1321 (11th Cir. 1982)). That Fitzgibbon gave credence to Kirkpatrick's partial recording over the statements of African-American bystanders and lenience to Kirkpatrick over his African-American subordinate (Plaintiff) for similar behavior also supports the mosaic in this case. See Lewis, 934 F.3d at 1185. And finally, that there is no clear explanation for whether, why, or how the Personnel Regulations and procedures applied to Plaintiff's conduct; why Kirkpatrick issued so many write-ups (for conduct he appears to have precipitated); or when and how Fitzpatrick decided to terminate Plaintiff's employment; all point to the existence of pretext in this case. See Stewart v. Auto. Quality & Logistics, Inc., No. 2:17-CV-02153-JHE, 2020 WL 6451965, at *6 (N.D. Ala. Nov. 3, 2020) (“The factual accuracy of [a supervisor]'s report merges with the ultimate question of truthfulness.”).

*22 In sum, the facts recited above could lead a reasonable fact finder to conclude that (1) Fitzgibbon and Kirkpatrick[42] were motivated by discriminatory animus against African-Americans; (2) the reasons the they gave for separating Plaintiff was pretext for that racial motivation; (3) and that Defendant may therefore have “consciously injected race considerations into its discipline decision making,” which is enough to survive summary judgment. Smith, 644 F.3d at 1341; cf. Quigg v. Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1232-34 (11th Cir. 2016) (finding in mixed-motive case that a plaintiff presented sufficient evidence to survive summary judgment when (1) a school board member told a parent that “it is time to put a man in there”; (2) school board members recommended that the plaintiff hire a tough “hatchet man” to serve as assistant superintendent; (3) school board member told the plaintiff that “she should consider a male assistant superintendent” to achieve gender balance; and (4) a school board member told the plaintiff that she voted against her because she “needed a strong male to work under her to handle problems, someone would could get tough”).

Accordingly, the undersigned finds that a factfinder could reasonably infer intentional discrimination when analyzing the totality of the evidence in this case. Summary judgment should therefore be DENIED on Plaintiff's discriminatory discharge claim.

C. Retaliatory Discharge

In addition to prohibiting discrimination, Title VII also forbids an employer from taking any adverse action against an employee “because he has opposed any practice made unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a); Anduze v. Fla. Atl. Univ., 151 F. App'x 875, 878 (11th Cir. 2005); McShane v. United States Attorney Gen., 144 F. App'x 779, 787 (11th Cir. 2005).

As with discrimination claims, in the absence of direct evidence, as in the instant case, claims of retaliation pursuant to Title VII follow the McDonnell Douglas burden-shifting framework. Jackson v. Geo Grp., Inc., 312 F. App'x 229, 233 (11th Cir. 2009); Goldsmith v. City of Atmore, 996 F.2d 1155, 1162-63 (11th Cir. 1993). To make out a prima facie case of retaliation then, a plaintiff must show that (1) he engaged in protected activity; (2) he suffered an adverse employment action by the defendant simultaneously with or subsequent to such protected activity; and (3) a causal connection exists between the protected activity and the adverse employment action. Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). It is undisputed that Plaintiff engaged in protected activity when he filed his complaints with the DCRC and the County Manager on December 4 and 8, respectively, and that the decision to force Plaintiff to resign or be fired was an adverse action. The parties disagree, however, about whether Plaintiff can establish the causal element.

*23 To establish the requisite causal connection, a plaintiff must, at a minimum, show that the decisionmaker was aware of the protected conduct, and that the protected activity and the adverse action were not wholly unrelated. McCann v. Tillman, 526 F.3d 1370, 1376 (11th Cir. 2008). The decisionmaker's awareness of the employee's protected activity may be established by circumstantial evidence. City of Atmore, 996 F.2d at 1163; see also Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997). After that is established, close temporal proximity between the protected activity and the adverse employment action may establish a causal connection; but to do so without more, the “mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action ... must be ‘very close.’ ” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (citations omitted) (three month period insufficient); see also Clemons v. Delta Air Lines Inc., 625 F. App'x 941, 945 (11th Cir. 2015) (collecting cases finding “three months between the protected activity and an adverse employment action to have been insufficient to establish causation”). Less than one month between the protected activity and the adverse action is sufficient to establish causation. Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004)

In this case, Defendant contends that Fitzgibbon could not have engaged in retaliation because he testified that he was unaware of Plaintiff's December 4 and 8 complaints at the time he made the decision to terminate Plaintiff's employment. [Doc. 73-1 at 20-22.] However, as noted, the decisionmaker's awareness may be demonstrated by circumstantial evidence. This can be accomplished either by presenting affirmative evidence of knowledge or by impeaching the decisionmaker's denial. Martin v. Fin. Asset Mgmt. Sys., Inc., 959 F.3d 1048, 1054 (11th Cir. 2020); see also Calvert v. Doe, 648 F. App'x 925, 929 (11th. Cir. 2016) (applying the “convincing mosaic” standard to a Title VII retaliation claim).

In this case, there are a number of additional pieces of evidence to consider. The first takes the form of testimony from the DCRC's Director that the DCRC would have notified Fitzgibbon of the complaint and investigation via intraoffice mail. As discussed, that intraoffice notification was sent on December 9, before Fitzgibbon conducted his own investigation. There is also evidence that some time prior to December 18, Plaintiff's complaint with the County Manager was forwarded to Fitzgibbon, and testimony that Plaintiff attempted to raise his concerns about racism during the December 15 meeting.[43] All of this suggests that Fitzgibbon was aware of Plaintiff's complaints of discrimination prior to finalizing his decision to force Plaintiff's separation. Combined with Fitzgibbon's testimony that he was frustrated with his inability to discipline employees, that employees would not “tak[e] their medicine,” and that there was an African-American conspiracy against him, there is more than enough evidence that a reasonable factfinder could disbelieve Fitzgibbon's testimony that he was not aware of Plaintiff's complaints of discrimination, and conclude that he did in fact know Plaintiff had engaged in protected activity. With the close temporal proximity between Plaintiff's complaints and his separation, then, Plaintiff can establish the causal element of the prima facie case.

Having made out a prima facie case of retaliation, the burden therefore shifts to Defendant to articulate a legitimate non-retaliatory reason for Plaintiff's separation, which it has done. Berber v. Wells Fargo, NA, 798 F. App'x 476, 478 (11th Cir. 2020). Specifically, Defendant asserts that Fitzgibbon decided to force Plaintiff's separation due to the insubordination demonstrated on November 23, 2015. As a result, the burden shifts back to Plaintiff to show that Defendant's proffered legitimate, non-retaliatory reason for its adverse employment action is merely pretext for unlawful retaliation. Berber, 798 F. App'x at 478-79.

*24 A plaintiff may establish pretext “directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.” Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981) (citing McDonnell Douglas, 411 U.S. at 804-05). A plaintiff's burden of demonstrating pretext “merges with the ultimate burden of persuading the court that [he] has been the victim of intentional [retaliation].” Id. Plaintiff must “come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision,” but that retaliation was instead. Chapman, 229 F.3d at 1024 (quoting Combs v. Plantation Patterns, Meadowcraft, Inc., 106 F.3d 1519, 1528 (11th Cir. 1997)). A plaintiff cannot, however, “establish that an employer's proffered reason is pretextual merely by questioning the wisdom of the employer's reason, so long as the reason is one that might motivate a reasonable employer.” Pennington v. City of Huntsville, 261 F.3d 1262, 1267 (11th Cir. 2001)

Plaintiff meets his burden to show pretext. As discussed in the preceding section, there is sufficient evidence for a reasonable factfinder to conclude that Fitzgibbon's testimony about the reasons for Plaintiff's separation were less than sincere. That Kirkpatrick, who did not complain of discrimination, was not suspended or discharged suggests that Plaintiff's complaints may have contributed to the decision to separate Plaintiff. Viewed together with Fitzgibbon's other testimony that he was frustrated with his inability to discipline employees, that discrimination claims were “automatic,” that he was always walking on eggshells, that it was impossible to fire anyone, that employees would not “tak[e] their medicine,” and that he had to correct decades of “uncooperativeness,” a jury could reasonably conclude that it was not insubordination that motivated the termination of Plaintiff's employment, but rather Plaintiff's complaints of discrimination. Under these circumstances, the undersigned finds that Plaintiff has presented sufficient evidence to create a genuine issue of fact as to pretext.

Accordingly, summary judgment should be DENIED on Plaintiff's claim of retaliatory discharge as well.

Plaintiff's motion for summary judgement takes the unusual step of requesting judgment in his favor on his retaliation claim. [Doc. 74.] The Court will not belabor the point. As discussed, Fitzgibbon testified that he had no knowledge of Plaintiff's complaints of discrimination until after Plaintiff's separation, and only chose to force Plaintiff's separation because of his insubordination. Because Plaintiff has not offered any concrete and indisputable evidence to disprove that testimony, a reasonable factfinder could credit Fitzgibbon's statements that he was unaware of Plaintiff's protected activity. As a result, Plaintiff's claim of retaliation must be submitted to a jury for resolution, and the affirmative grant of summary judgment is inappropriate. Plaintiff's motion for summary judgment should therefore be DENIED.

For the reasons discussed above, the undersigned RECOMMENDS that the Motions for Sanctions be DENIED; that Defendant's Motion for Summary Judgment be GRANTED as to any Title VII claims preceding November 2015, including any claims for hostile work environment harassment, but DENIED as to Plaintiff's Title VII claims for discriminatory and retaliatory discharge; and that Plaintiff's Motion for Summary Judgment be DENIED.

As there are no further matters pending before the undersigned magistrate judge, the Clerk is DIRECTED to terminate the reference.

IT IS SO RECOMMENDED this 28th day of January, 2021.

Plaintiff's amended complaint named both Fulton County, Georgia (the “County”) and the Fulton County Board of Tax Assessors (the “Board”) (together, the “Fulton County Entities”) as defendants, as there was an open question regarding which entity employed Plaintiff. [See Docs. 6, 12, 15.] On the joint motion of the parties, the County was dismissed. [See Docs. 69, 79, 80.] Both Fulton County Entities were represented by the same counsel through this litigation. (See also Aff. of Dominique A. Martinez (“Martinez Aff.”) [Doc. 83-2] ¶ 2.) Neither party suggests that they should be distinguished for purposes of the Motion for Sanctions, or indeed, for purposes of summary judgment. Along these lines, the undersigned will, for the most part, refer generically to Defendant and only distinguish between the County and the Board when necessary for clarity.

Kirkpatrick was Plaintiff's immediate supervisor, and Fitzgibbon was Kirkpatrick's supervisor and the purported decisionmaker in this case.

Plaintiff's counsel only states in his brief that before Kirkpatrick and Fitzgibbon were deposed in October 2019, he “wrote Defendants' counsel to ensure that there have been proper searches.” [Doc. 76 at 4.]

In its response brief, Defendant states:

None of the three were employed by Defendant during the course of this litigation. Kirkpatrick left for a position in the Elbert County Tax Assessors Office as Chief Appraiser in November 2016. (See Dep. of Douglas Kirkpatrick (“Kirkpatrick Dep.”) [Doc. 71] at 9-10.) Fitzgibbon was fired in September 2016. (See Dep. of David Fitzgibbon (“Fitzgibbon Dep.”) [Doc. 72] at 181.) The depositions were noticed by Defendant and taken by Defendant's counsel at their offices, though done so with Plaintiff's counsel consent (Plaintiff's counsel was obviously present and given the opportunity to question them as well).

The Board received an extension from Plaintiff to provide its objections and responses. [See Doc. 83 at 5 n.2.]

From the both Fulton County Tax Assessors Office (the “TAO”) and the Fulton County Office of Diversity and Civil Rights Compliance (the “DCRC”). [See Doc. 83-9; see also Doc. 83 at 6 n.4.]

Plaintiff specifically states that he does not accuse counsel of inserting any incorrect or false information into the 30(b)(6) witness testimony. [See Doc. 76 at 7 n.2.]

Rule 26(e)(1), meanwhile, requires that:

“Discretion [here] means the district court has a range of choice, and that its discretion will not be disturbed as long as it stays within that range and is not influenced by any mistake of law.” Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005).

Defendant's citation to Bayer Healthcare Pharm., Inc. v. River's Edge Pharmacy, LLC, No. 1:11-CV-1634-HLM, 2015 WL 11142425 (N.D. Ga. July 31, 2015), report and recommendation adopted, 2015 WL 11142428 (N.D. Ga. Sept. 22, 2015) is unavailing. [See Doc. 76 at 17.] All that case does is underscore that if Defendant had waited longer after receiving the email documents from the IT Department, the delay would have been even less justified. See Bayer Healthcare Pharm., 2015 WL 11142425, at *8

Unlike the email productions, reasonable parties could disagree about the relevance of the Fitzgibbon call transcript. As an initial matter, Plaintiff does not even identify a request for production that the transcript would have been responsive to, and having reviewed the transcript [see Doc. 83-18], the call does not appear of great relevance or otherwise likely to lead to discovery to admissible evidence (outside of the reference to Plaintiff being fired, as opposed to having resigned) [see id. at 8]. The transcript is nearly 100 pages long, and only contains a handful of references to Plaintiff; it largely bears on Fitzgibbon's gripes about his experience with Defendant and the events culminating in his own separation. [See generally, id.] Moreover, there is no dispute that once Plaintiff's counsel alerted Defendant's counsel to his interest in obtaining the transcript, it was turned over in a timely fashion. As a result, the undersigned finds Defendant's conduct in relation to the transcript substantially justified.

Defendant offers up a five-factor analysis that has been utilized for determining if an untimely disclosure is harmless; however, as constructed, that framework is aimed at the question of whether to preclude a party from offering into evidence materials it failed to timely produce. See e.g., Bayer Healthcare Pharm., 2015 WL 11142425, at *9 (considering (1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the non-disclosing party's explanation for its failure to disclose the evidence) (citation omitted). In this case, the requested sanction does not include exclusion, since Plaintiff presumably intends to make use of the evidence. As a result, the Court will not rely on this specific framework. Regardless, the factors above are largely captured in the considerations enumerated in the cases cited by the Court in its discussion.

While it is true, as Plaintiff states, that neither Kirkpatrick nor Fitzgibbon were employed by Defendant, that was always true during this litigation, and does not excuse Plaintiff from subpoenaing their testimony (and seeking fees and costs for doing so) if it were truly important.

The same harmlessness evaluation would apply to the production of the Fitzgibbon's call transcript.

Plaintiff's requested relief does not include jury instructions regarding the delayed email production. The present recommendation is therefore made without prejudice to any future request that a jury be informed of the delayed production at trial.

Many of the questions Plaintiff identifies would have been better directed at Plaintiff, Kirkpatrick, and Fitzgibbon, all of whom had previously been deposed. (See Doc. 87 at 9-11)

The Court notes that the lack of knowledge answer is itself an answer which will bind the corporation at trial. Fraser Yachts Fla., Inc. v. Milne, No. 05-21168-CIV-JORDAN, 2007 WL 1113251, at *3 (S.D. Fla. Apr. 13, 2007); Chick-fil-A v. ExxonMobil Corp., No. 08-61422-CIV, 2009 WL 3763032, at *13 (S.D. Fla. Nov. 10, 2009).

The first 169 statements in PSAF and PSMF appear to be identical, leaving approximately 10 statements that are unique to each, all of which pertain to damages. [Compare Doc. 85-2, with Doc. 74-1.] Damages, meanwhile, are not at issue in the motions at bar. For the sake of brevity, then, the undersigned will cite only to PSAF.

According to Fitzgibbon, “everyone complained about being understaffed.” (Fitzgibbon Dep. 242.)

Fitzgibbon was employed with the TAO as the Chief Appraiser from February of 2012 until September of 2016. (DSMF ¶ 6.)

Memorandums would also be sent within the TAO to correct an action or otherwise provide information. (DSMF ¶ 17.)

As early as 2012, Plaintiff was aware that Fulton County had a department that was available to Plaintiff to make complaints involving discrimination or harassment matters, the Diversity and Civil Rights Compliance Office (“DCRC”); however, he did not make any complaints to the DCRC or anyone else within Fulton County regarding any incidents before or including the April 2012 incident. (DSMF ¶ 23; R-DSMF ¶ 23; see also Pl. Dep. 129-30; PSAF ¶ 106.)

Kirkpatrick did not recall if he made this statement. (PSAF ¶ 17)

Along similar lines, Kirkpatrick testified that he never perceived anything Fitzgibbon said to be racist towards any group of people. (Kirkpatrick Dep. 65.)

While Fitzgibbon did not “think” he would have made the comment, he could not actually recall. (Fitzgibbon Dep. 149.)

At some prior point, Kirkpatrick had also dropped a separate disciplinary action related to insubordination. (Fitzgibbon Dep. 30-31.) Neither party has present clear evidence regarding the nature of this incident.

Kirkpatrick had authority to reassign appeals to other employees (DSMF ¶ 39), though Plaintiff understood that no one else would handle the appeals (Pl. Dep. 172).

During his deposition, Kirkpatrick showed counsel how he hit the desk during the meeting with Plaintiff, and it startled the court reporter and made him jump, prompting an apology from Kirkpatrick. (R-PSAF ¶ 59.)

That is, demanding, “Who do you work for?”

Defendant has objected to consideration of witness statements taken the day of the incident. (See e.g., P-PSAF 61, 62, 65.) “The general rule is that inadmissible hearsay cannot be considered on a motion for summary judgment,” Macuba v. Deboer, 193 F.3d 1315, 1322 (11th Cir. 1999); however, “a district court may consider a hearsay statement in passing on a motion for summary judgment if the statement could be reduced to admissible evidence at trial or reduced to admissible form,” id. at 1323 (internal quotation omitted). Kirkpatrick could not say for certain whether he made the statement (see Kirkpatrick Dep. 38, 86-87), and, thus, there is no reason to believe that the witness could not provide admissible testimony at trial. Regardless, the Court does not consider these statements in demonstrating whether Kirkpatrick asked for those procedure, but rather to show that Kirkpatrick was motivated to have Plaintiff discharged; thus, the Court does not consider them hearsay for present purposes. See Fed. R. Evid. 801(c).

Article 11A encompassed insubordination for intentional disobedience, assaulting or resisting authority, disrespect, and/or using insulting or abusive language to a superior; Article 11B included insubordination for failure to carry out orders and failure or excessive delay in carrying out work assignments or instructions of superiors. (See Kirkpatrick Dep. Ex. 5.)

As to employee discipline within the TAO, a supervisor like Kirkpatrick would make a recommendation; Fitzgibbon would then do an investigation to see if the recommendation was warranted; and then action would be taken based on Personnel Regulations. (PSAF ¶ 119.)

For subsequent offenses, both provide for dismissal as a maximum penalty. (Kirkpatrick Dep. Exs. D4, D5.)

Defendant objects to consideration of this testimony as inadmissible hearsay. (R-PSAF ¶ 83.) The testimony is admissible under Federal Rule of Evidence 801(d)(2)(D), which defines a statement made by a “party's agent or employee on a matter within the scope of that relationship and while it existed” as non-hearsay. See, e.g., Kidd v. Mando Am. Corp., 731 F.3d 1196 (11th Cir. 2013).

While Defendant cites the emails in its statement of facts, it does not direct the Court to a copy of it in the record, instead citing only its bates range. (See DSMF ¶ 54.) The Court was able to locate a copy of the emails [see Docs. 84-5, 92-1], but the attached write-ups were not included, and Kirkpatrick testified that he could not recall how the write-ups were finalized. (Kirkpatrick Dep. 133-34.)

Kirkpatrick acknowledged that he issued a second set of write-ups to Plaintiff on December 9, but could not recall why the write-ups were redone; Kirkpatrick testified that it was possible that there was some delay in the original meeting taking place between Plaintiff, Fitzgibbon, and Kirkpatrick, and that as a result, he made some changes to the originals and gave those to Plaintiff on December 9. (Kirkpatrick Dep. 125-32.)

As with the prior witness statements, Defendant objects to consideration of these statements on hearsay grounds. As before, there is no indication that the statements could not be reduced to admissible form at trial; nevertheless, the Court need only consider them only for their effect on Fitzgibbon and his beliefs as to what occurred during the meeting.

Defendant objects to consideration of this testimony because it lacks any foundation for Fitzgibbon's competency to testify as to the subject matter. [See e.g., R-PSAF ¶ 37.] While that may be true that Kirkpatrick is not qualified or knowledgeable to testify about race-relations, the Court will nevertheless consider the testimony for what it shows about Fitzgibbon's subjective beliefs.

Defendant objects to consideration of this testimony because it lacks any foundation for Kirkpatrick's competency to testify as to the subject matter. [See R-PSAF ¶¶ 35-36.] Again, the Court will consider the testimony for what it shows about Kirkpatrick's subjective beliefs.

Indeed, one was specifically created in response to Plaintiff's failure to answer Kirkpatrick's “Who do you work for?” demands, while the other was created in response to Plaintiff's failure to leave the premises, when Kirkpatrick had actually allowed that Plaintiff could speak with Fitzgibbon.

Given Fitzgibbon's own statements and testimony, the Court does not think it necessary to go in-depth into the parties' discussion of the cat's paw theory of recovery, but it supports the same conclusion. As an initial matter, Defendant's explication of the cat's paw theory is incorrect. Defendant is under the impression that it only applies if Kirkpatrick specifically recommended that Plaintiff suffer the adverse action at issue—here, discharge. [See Doc. 91 at 8-9.] However, it is undisputed that Kirkpatrick communicated his desire to Fitzgibbon that Plaintiff suffer an adverse action for his insubordination, citing multiple Personnel Regulations that would result in suspension or discharge in the write-ups sent to Fitzgibbon. That Fitzgibbon relied upon those write-ups, as well as information from Kirkpatrick over that of Plaintiff and other bystanders, could lead a reasonable factfinder to conclude that Fitzgibbon did not conduct an independent investigation. This is enough to impute discriminatory animus up the chain to Fitzgibbon. See King v. Volunteers of Am., N. Ala., Inc., 502 F. App'x 823, 828 (11th Cir. 2012) (impute a supervisor's animus in writing reprimands to the decisionmaker ultimately responsible for terminating the plaintiff); see also Stewart v. Auto. Quality & Logistics, Inc., No. 2:17-CV-02153-JHE, 2020 WL 6451965, at *7 (N.D. Ala. Nov. 3, 2020) (“The cat's paw theory imputes animus up the chain. It does not preclude a finding that [the decisionmaker] acted as the vessel for [the supervisor's] discriminatory intent that [the supervisor] recommended one adverse action, only for [the decisionmaker] to impose another, more severe adverse action.”) (citing Staub v. Proctor Hosp., 562 U.S. 411, 422 (2011)).

Title VII's protections are not limited to formal complaints of discrimination; informal complaints may constitute protected activity as well. Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1310 (11th Cir. 2016).