LTC 299-2022 Victory in Ida M. Smart v. City of Miami BeachMIAMI BEACH
OFFICE OF THE CITY ATTORNEY
LTC No. _______ _
LETTER TO COMMISSION
TO:
FROM:
Mayor Dan Gelber and Members of the City Commission
Rafael A Paz, City Attorney �
DATE: July 22, 2022
SUBJECT: Victory in Ida M. Smart v. City of Miami Beach
The purpose of this L TC is to advise you of the City's recent victory in the Eleventh Judicial
Circuit in and for Miami-Dade County, Florida. I am pleased to inform you that Judge
Charles Johnson granted the City's Motion for Summary Judgment in the case of Ida M.
Smart v. City of Miami Beach.
The lawsuit was an employment law matter. The complaint set forth five counts under the
Florida Civil Rights Act (FCRA), alleging unlawful employment discrimination and
retaliation. The case, which began in 2019, was vigorously litigated by the Plaintiff.
The City argued that all five counts failed as a matter of law on both procedural and
administrative grounds. After considering the parties' briefs and hearing the parties'
arguments, Judge Johnson found for the City and granted its motion, thus dismissing
Plaintiff's complaint in its entirety.
The City's case was litigated entirely in-house by Chief Deputy City Attorney Robert
Rosenwald, First Assistant City Attorney Henry Hunnefeld, and Assistant City Attorney
Benjamin Braun.
A copy of the court's Order in Ida M. Smart v. City of Miami Beach, Case No. 2019,
032096-CA-01 is attached.
Feel free to contact me or Chief Deputy City Attorney Robert Rosenwald for further
information about this or any City litigation matter.
RAP/RFR/bb
299-2022
Filing# 153518775 E-Filed 07/18/2022 01 :28:06 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL
CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO: 2019-032096-CA-01
SECTION: CA06
JUDGE: Charles Johnson
Ida M Smart
Plaintiff(s)
vs.
City of Miami Beach
Defendant(s)
I ------------
ORDER GRANTING SUMMARY JUDGMENT
TIDS CAUSE came before the Court after a hearing held on July 01, 2022, on the
Defendant City of Miami Beach's ("City" or "Defendant") Motion for Final Summary Judgment
("Motion"). The City sought judgment on all five of Plaintiff Ida Smart's ("Plaintiff' or "Smart")
claims sets forth her in Complaint ("C.") under the Florida Civil Rights Act ("FCRA"). Count I
alleged sex-based discrimination, Count II alleged race-based di scrimination, Count III alleged
color-based discrimination, Count IV alleged retaliation , and Count V alleged sexual harassment.
The Court having carefully considered the City 's Motion, Plaintiffs Response in
Opposition, and the Defendant's Reply, finds that there is undisputed evidence and good cause to
GRANT the relief requested by Defendant and di smi ss Plaintiffs claims as a matter of law.
1. Undisputed Material Facts
On or about April 24, 2006, the Plaintiff was hired by the City as a Municipal Service
Worker III ("MSW III "). Plaintiff began her employment working in the Parks and Recreation
Department. Plaintiff's MSW Ill position was a c lass ified position covered by the American
Federation of State, County, and Municipal Employees co llective bargaining agreement ("CBA").
In 2013, Plaintiff received a schedule change and was relocated from Scott Rakow Yo uth
center to 2 1 sr Street Park. In 2015, Plaintiff was relocated to North Shore Park because
the City was doing construction at the 21 sr Street Park location. On July 30, 2018,
Case No: 20 19-032096-CA-01 Page 1 of 12
pursuant to Article 6 of the CBA, the Plaintiff was transferred to the Public Works
division. Plaintiffs lateral transfer did not result in any change in salary, benefits, or
title.
Pursuant to Section 7.5 of the CBA, which delineates overtime distribution, "Opportunity to
work overtime shall be distributed equally as practicable among employees in the same job
classification in the same work section and area starting with the most senior employee, provided
the employees are qualified to perform the specific overtime work required." During the relevant
time period, the Plaintiff, Tommy Milz ("Milz"), and Carlos Elordi ("Elordi") held MSW III
positions at the North Shore Park Youth Center in the Parks and Recreation Department. Pursuant
to Section 7.5, Plaintiff received less overtime work than Milz but more overtime work than Elordi.
After progressive discipline, Plaintiff was terminated on September 11, 2018.
2. Legal Standard
The Florida Supreme Court amended Florida Rule of Civil Procedure 1.510, requiring
Florida courts to construe Rule 1.510 in accord with the federal summary judgment standard found
in Federal Rule of Civil Procedure 56. In re Amendments to Fla. R Civ. P. 1.510, 309 So. 3d 192,
194 (Fla. 2020). Importantly, no longer is summary judgment a "disfavored" mechanism for
resolving cases, but rather is "an integral part" of the rules as a whole. Id. at 194.
Thus, summary judgment shall be granted "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." Fla. R.
Civ. P. l.510(a). Following the federal standard, the movant is no longer required to disprove any
element of the nonmovant's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Rather, "The
burden on the moving party may be discharged by 'showing' -that is, pointing out to the [trial]
court-that there is an absence of evidence to support the nonmoving party's case." Id. at 325. "The
mere existence of a scintilla of evidence in support of the [ nonmovant' s] position will be
insufficient; there must be evidence on which the jury could reasonably find of the [nonmovant]."
North River Ins. Co. v. Broward Cty. Sherif.f's Office, 428 F. Supp. 2d 1284, 1287 (S.D. Fla. 2006).
3. Analysis
After reviewing the record, which includes Plaintiffs deposition and Answers to
Case No: 2019-032096-CA-0I Page2 of 12
Interrogatories, the Court find s that Plaintiff has not presented a prima facie case of intentional
discrimination or retaliation. Plaintiff fails to cite to evidence establishing a genuine dispute of
material fact. The record, which is replete with fact-finding, s hows an absence of evidence to
support the nonmoving party 's case.
The City's motion points the Court to the record evidence demonstrating that all five of
Plaintiffs claims fail as a matter of law on both procedural and substantive grounds. Once the
movant at summary judgment points to an absence of evidence on a crucial element of the non-
movant' s claim, the non-movant must come forward with fact specific evidence to support her
claim. Smyth v. Nat 'l Council on Compensation Ins., Inc ., 1998 WL 4764 71, at * 1 (S.D. Fla. 1998).
The ultimate burden of proving discrimination rests at all times with the plaintiff. St. Mary 's Honor
Ctr. v. Hicks , 509 U.S. 502, 507 (1993). The Plaintiff, however, has failed to meet her burden.
1. Administrative Grounds
A. Several of the Complained-of Employment Actions are Time-Barred
Under the FCRA, a plaintiff seeking to bring a civil action for employment discrimination
must first file a charge of discrimination. See Gregory v. Ga. Dep 't of Human Res., 355 F.3d 1277,
1279 (11th Cir. 2004). "The first step down this path is filing a timely charge of discrimination with
the EEOC." Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001). "The starting point
of ascertaining the permissible scope of a judicial complaint alleging employment discrimination is
the administrative charge and investigation." Griffin v. Carlin, 755 F.2d 1516, 1522 (11th Cir.
1985). The claimant is required to file a complaint within 365 days of the alleged violation. See §
760.11 (1), Fla. Stat. (2020). "A plaintiffs failure to timely file his or her charge renders the claims
at issue time barred." Drisin v. Fla. Int '! Univ. Bd ofTrustees, 2019 WL 289581, at *5 (S.D. Fla.
2019).
Here, the Plaintiff filed her first charge with the Florida Commission of Human Relations
("FCHR") on January 05, 2017, and her second charge on July 31, 2018. Therefore, for actions
pertaining to her 201 7 Charge, Plaintiff may not sue for alleged violations that occurred before
January 05, 2016. And for actions pertaining to her 2018 Charge, Plaintiff may not sue for alleged
violations that occurred before July 31, 2017.
Accordingly, Plaintiffs allegation over not receiving overtime work is time-barred because
Case No: 2 019-032096-CA-01 Page 3 of 12
Plaintiff alleges that she filed a grievance on "May 30, 2017" concerning the overtime work. C. ,i
14. As such, the alleged incident(s) did not occur within the 365 days of her July 31, 2018 charge.
In this vein, the Plaintiff alleges she was transferred in retaliation for filing her
administrative Charges, C. ,i 16, but two of the three transfers are procedurally time-barred.
Plaintiff's reliance upon her relocations (1) from Scott Rakow Center to 21st Street Recreation
Center on 01/22/13 and (2) from 21st Street to North Shore Park on 12/21/15, cannot be the
grounds for her retaliation claim because the two reassignments occurred well outside the statutory
window allotment.
B. Plaintiff's Judicial Complaint is Limited By the Scope of the Charge
Further, a plaintiff cannot reserve claims for a later lawsuit that could have been addressed
in the EEOC investigative and conciliative process. Richardson v. JM Smith Corp., 473 F. Supp. 2d
1317, 1331 (M.D. Ga. 2007); Little v. CSRA, 744 F. App'x 679, 682 (11th Cir. 2018)
("[A]llegations [in a judicial complaint] of new acts of discrimination are inappropriate."); see Wu
v. Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989) ("The purpose of the filing requirement is to
insure that the settlement of grievances be first attempted through the office of the EEOC.").
To the extent Plaintiff attempts to save her claims through the continuing violation doctrine,
that is inapplicable here. That doctrine allows a plaintiff, when the plaintiff has timely filed a claim
regarding an ongoing discriminatory act, to bring an untimely claim based on the same ongoing
discriminatory act. Humble v. Cin'lls Educ. Grp., Inc., 2017 WL 6001501, at *4 (M.D. Ga.
2017)(emphasis added). The alleged discriminatory acts at hand are distinct and different from one
another.
To begin with, the claim for color-based discrimination (Count III) is facially deficient
because both of Plaintiff's FCHR Charges omit any claim for color-based discrimination. Indeed,
the Plaintiff does not check the box for discrimination predicated upon color in either one of her
two charges. Comparably, the claim concerning Plaintiff's termination, C. ,i 41, is beyond the scope
of the two FCHR investigations because it was never raised through administrative channels.
Gregory, 355 F.3d at 1280 ("[a] plaintiff's judicial complaint is limited by the scope of the EEOC
investigation which can reasonably be expected to grow out of the charge of discrimination.").
Likewise, Plaintiffs sexual discrimination claim, Count V, is foreclosed for failing to
exhaust her administrative remedies because the alleged discriminatory acts were never raised in
Case No: 2019-032096-CA-0l Page 4 of 12
administrative channels. For instance, Plaintiff alleges that she was subject to sexual harassment "in
early 2017 by fellow employee Malcom Cobb," yet the allegation is never addressed in either one
of her two charges. C. ~ 19. The administrative charges do not reference Cobb's alleged
misconduct. In fact, the administrative charges' "particulars" and "discrimination statement"
portions fail to state any facts that would presage a claim for sexual harassment in the workplace.
Such an omission is glaring and deserving of dismissal because the administrative charge and the
complaint must, at minimum, describe the same conduct and implicate the same individuals. See
Bridges v. Standard Pacific of Tampa, GP, Inc., 2007 WL 177688, at *1 (M.D. Fla. 2007)
( dismissing FCRA claims that were based upon instances not identified in the charge of
discrimination for failure to exhaust administrative remedies). And the allegations concerning
Joseph Simmons took place before November 15, 2015, which falls outside the statute of
limitations period.
2. Substantive Grounds
Along with procedural deficiencies, the evidentiary record demonstrates that, as a matter of
law, Plaintiff cannot meet her burden to establish a prima facie case of sex, race, and/or color-based
discrimination. Similarly, Plaintiff's retaliation claim and sexual harassment claim fail on
substantive grounds for failing to establish a prima facie case. The Plaintiff's burden to present
significantly probative evidence of unlawful discriminatory animus was not met.
In order to establish a prima facie case of disparate treatment, a plaintiff must prove that:
(1) she belongs to a protected class; (2) she was subjected to an adverse employment action; (3) she
was qualified; and (4) that her employer treated "similarly situated" employees outside her class
more favorably. Lewis v. City of Union City, 918 F.3d 1213, 1228 (11 th Cir. 2019). As to element
four, the Plaintiff must identify a comparator outside of her protected class who was similarly
situated in all material respects yet was treated more favorably under the same circumstances.
Robert v. City of Boca Raton, 2021 WL 4517475, *10 (S.D. Fla. 2021). A comparator must be so
similar that she "cannot reasonably be distinguished" from the plaintiff. Vinson v. Tedders, 844 F.
App'x 211, 213-14 (11 th Cir. 2021).
A. Overtime Assignments
Plaintiff alleges she was discriminated against because she did not receive the same amount
Case No: 2019-032096-CA-0l Page 5 of 12
of overtime work as her male counterparts. See C. ~ 14. However, the record demonstrates that the
employees were not similarly situated in all material respects as Plaintiff was not as qualified as
comparator Tommy Milz. First, the evidence demonstrates that Plaintiff was not qualified to
perform specific tasks, which included handling heavy machinery, carpentry, plumbing, making
repairs, and operating electrical equipment, whereas Milz, who attended and completed Lindsey
Hopkins Technical College, has a certification as an Air-Conditioning Technician and has prior
experience with electrical, plumbing, and carpentry work. The undisputed facts reveal that Milz
was not "similarly situated" because his education and technical background made him more
qualified than the Plaintiff. Felder v. Health Services, 493 F. App'x 17, 20 (11th Cir. 2012) (finding
alleged comparators were not similarly situated because they had different experiences, credentials,
job duties, and qualifications).
A difference in employment history, educational background, and job responsibilities can
distinguish a purported comparator. Earle v. Birmingham Board of Education, 843 F. App'x 164,
167 (11 th Cir. 2021); e.g., Thomas v. Seminole Elec. Coop., Inc., 385 F. Supp. 3d 1246, 1257 (M.D.
Fla. 2018) (finding proffered comparator was dissimilar because they performed different job
responsibilities and had different educational and technological backgrounds). Consequently,
summary judgment is warranted because discrimination claims, like that of the Plaintiff, are
dismissed for failing to identify similarly situated comparators who were treated more favorably.
Significantly, the evidence shows that Plaintiff received more overtime opportunities than Carlos
Elordi, a MSW III male.
Second, Plaintiff received overtime work that she was qualified and able to perform.
Notably, Plaintiff's physical restrictions limited her to just performing driving-related duties, and
that due to an injury to her thumb, Plaintiff was not only placed on modified duty that prevented
her from lifting anything heavier than ten pounds but was also forced to miss time to tend to the
injury. The limitations restricted the specific overtime tasks Plaintiff was able to perform.
B. Lunchroom Access
Plaintiff's allegation that she and "other similarly situated black employees were not
allowed to eat lunch in the designated employee lunch area," C. ~ 16, is not supported by evidence.
Conversely, the undisputed facts establish that the prohibition against eating in the kitchen
area/lunchroom was applied to all employees. Importantly, between 2017 to the present, all Parks
and Recreation employees who worked at North Shore Park were not allowed to continue eating
lunch in the kitchen area of the facility because the Florida Department of Children and Families
Case No: 2019-032096-CA-0l Page 6 of 12
determined the room was unsafe as it pertained to the child-care facility located at the park. And
there is no evidence suggesting the City enforced the prohibition in a discriminatory manner.
C. Alleged Transfers
To make aprimafacie case for a claim of retaliation, a plaintiff must first show (1) that she
engaged in statutorily protected activity, (2) that she suffered an adverse action, and (3) that the
adverse action was causally related to the protected activity. Gogel v. Kia Motors Mfg. of Ga., Inc.,
967 F.3d 1121, 1134-35 (11 th Cir. 2020) )(cleaned up). "Causation may be inferred by close
temporal proximity between the statutorily protected activity and the adverse employment action."
Callahan v. City of Jacksonville, Fla., 805 F. App'x 749, 753 (11th Cir. 2020) (quoting Thomas v.
Cooper Lighting Inc., 506 F.3d 1361, 1364 (11 th Cir. 2007); DeBose v. USF Bd. of Tr., 811 F.
App'x 547, 557 (11 th Cir. 2020) (holding three-to-four-month delay is typically too large a gap to
prove causation).
Plaintiff alleges she was transferred in retaliation for filing Charges with the FCHR. C. 1 16.
As addressed earlier, the only actionable transfer, is when Plaintiff was transferred to the Public
Works Department. The transfer, however, was not an adverse employment action because her title,
salary, and benefits remained unchanged. Bass v. Board Of Cnty. Comm., 256 F.3d 1095, 1118
(ll th Cir. 2001) (holding action that deprived employee of compensation constituted adversity);
Thompson v. Stackley, 2017 WL 8751749, * 10 (M.D. Fla. 2017) (holding a transfer which did not
involve a reduction in pay grade, salary, or responsibility was not adverse). Therefore, lacking
material facts that show an adverse employment action, the Plaintiff cannot establish a prima facie
case of retaliation. Hall v. Dekalb Cnty. Gov't, 503 F. App'x 781, 790 (11 th Cir. 2013) (holding a
materially adverse action must have a "significant impact on employment.").
Moreover, Plaintiff cannot establish aprimafacie case of retaliation because the transfer to
Public Works was either too early or too late to constitute a causal connection. For instance,
Plaintiffs first FCHR Charge, January 05, 2017, took place seventeen months before her transfer.
This lengthy interval goes well beyond the bounds at which courts have been willing to infer causal
connection based merely on temporal proximity. For instance, the Eleventh Circuit has found three
months between the protected activity and retaliatory event to be too remote to prove temporal
proximity. Brown v. Alabama Department ofTransportation, 597 F.3d 1160, 1182(11th Cir. 2010);
see Faircloth v. Herkley Invs. Inc., 514 Fed. App'x 848, 852 (llth Cir. 2013); see also Clark
County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (citing several court of appeals cases
Case No: 2019-032096-CA-0l Page 7 of 12
for the proposition that a three-to-four-month gap is insufficient to establish a causal connection).
Therefore, here, an inference of retaliation does not arise because the temporal proximity of
17 months is not "very close" at all. Thomas, 506 F.3d at 1364; Debose, 811 F. App'x at 557.
Given that Plaintiff has offered no other evidence of a causal connection, the undisputed material
facts fail to satisfy the causation element.
Further, Plaintiffs second FCHR Charge, July 31, 2018, took place after she was
transferred. The Plaintiff, however, cannot base a retaliation claim on events that took place prior
to engaging in her protected activity. See e.g., Uppal v. Hospital Corp. of America, 2011 WL
2631869 at *7, n. 22631869 (M.D. Fla. 2011) (rejecting retaliation claim because the disciplinary
actions preceded the complaints of discrimination). Therefore, the Public Works transfer was
neither an adverse employment action nor causally related to the protected activity, and Count IV is
defective as a matter oflaw.
D. Termination
A crucial component in deciding if discrimination can be inferred is whether employees
outside of plaintiffs protected class were treated more favorably than the terminated employee.
Quick v. Tripp, Scott, Conklin & Smith, P.A., 43 F.Supp. 2d 1357, 1371 (S.D. Fla. 1999); Moreland
v. Miami-Dade County. 255 F.Supp.2d 1304, 1312 (S.D. Fla. 2002)("Burden is on the plaintiff to
show the similarity between his or her conduct and that of other employees who were treated
differently, and not on the defendant to disprove their similarity.").
Here, despite alleging that she was terminated as a result of her race, C. ,r 41, discrimination
cannot be inferred because there is an absence of evidence showing that other "similarly situated"
insubordinate employees were treated more favorably. First, Plaintiffs position was not replaced
by an individual outside her protected classes because her position was eliminated, and the duties
were absorbed by the remaining staff. See Verna v. Pub. Health Tr. of Miami-Dade Cnty., 539
F.Supp. 2d 1340, 1350 (S.D. Fla. 2008) (finding no record evidence from which to infer that
plaintiff was treated less favorably than others similarly situated because her position was
eliminated and duties were re-distributed to employees who were already on staff); Lieberman v.
Miami-Dade County, Case No. 99-1714, 2000 WL 1717649, *6 (S.D. Fla. 2000) ("The fact that her
duties were redistributed among other current employees demonstrates that the County was not
seeking to replace her."); see Moore v. Alabama State Univ., 864 F.2d 103, 105 (11th Cir. 1989)
(stating that since plaintiff "was not replaced by anyone, " there was "nothing to show that
Case No: 2019-032096-CA-0l Page 8 of 12
defendants acted in any way because of plaintiff's sex.''.).
Secol:ldjntiff does not identify any similarly situated employees who behaved in a
similar manner (i.e., not complying with city directives, demonstrating an inability to work
effectively with colleagues and supervisors), shared the same prior employment or discipline
history, had been under the jurisdiction of the same supervisors, and yet were treated more
favorably. Morris v. Emory Clinic, Inc., 402 F.3d 1076, 1081 (11th Cir. 2005) (dismissing claim
because plaintiff failed to identify co-worker who received similar complaints and was not
terminated); Robinson v. Alutiiq-Mele, LLC, 2008 WL 1836370, at *7 (S.D. Fla. 2008) (Gold, J.)
(granting summary judgment because plaintiff failed to show that similarly situated employees
outside of the protected class were treated more favorably). Plaintiff's failure to present any
evidence that other insubordinate employees were treated more favorably is fatal.
Further displaying her claim's deficiencies, the Plaintiff unequivocally admits that she never
heard any comments or statements about race from Rodolfo De La Torre, the Director of
Infrastructure Division who signed her termination letter. Additionally, Plaintiff stated that her
Public Works Supervisor, Bertran Walthour, was not upset at her because of her race but rather for
a personal issue concerning the AFSCME from years back.
Accordingly, Counts I-N should be dismissed as a matter of law because the record
evidence does not establish a prima facie case as is required under the FCRA.
E. Allegations of Sexual Harassment
The record evidence also establishes that Count V fails and the City is entitled to judgment
as a matter oflaw.
To prove a hostile work environment, a plaintiff must show:
(1) that she belongs to a protected group;
(2) that she has been the subject of unwelcome harassment;
(3) that the harassment was based on her sex;
(4) that the harassment was sufficiently severe or pervasive to
alter the terms and conditions of her employment and create a
discriminatory abusive working environment; and
Case No: 2019-032096-CA-OI Page 9 of 12
(5) that the employer was responsible for such environment
under a theory of vicarious or direct liability.
Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1248-49 (I I th Cir. 2014).
To prove the harassment was sufficiently severe or pervasive, the factors to consider are the
frequency and severity of the conduct, whether it was physically threatening or humiliating, and to
what degree did it reasonably interfere with plaintiffs job performance. See Allen v. Tyson Foods,
Inc., 121 F.3d 642,647 (!I th Cir.1997).
Here, Plaintiffs hostile work environment claim, Count V, fails because it is predicated
upon a coworker, Cobb, asking her out for drinks and trying to show her pornographic images on
two occasions. C. ~ 19. Such allegations fall short. E.g., Thompson v. City of Miami Beach, Fla.,
990 F. Supp. 2d 1335, 1341 (S.D. Fla. 2014) (finding three offensive race-based remarks made over
two-year period failed to show objectively severe or pervasive harassment); see Sprague v. Thorn
Americas, Inc., 129 F.3d 1355, 1365-66 (10th Cir. 1997) (holding five "sexually-oriented,
offensive" statements over 16 months insufficient to show hostile environment, even though one of
the harasser's statements occurred while he put his arm around plaintiff, looked down her dress and
said, "well, you got to get it when you can").
Here, the alleged incidents in this case, being asked to go out for drinks and being shown
pornographic images, C. ~ 19, are neither sufficiently threatening nor frequent enough to constitute
being "sufficiently severe or pervasive to alter the terms and conditions of her employment and
create a discriminatory abusive working environment severe." Adams, 754 F.3d at 1254 (finding
employee did not experience objectively hostile work environment even though he was referred to
in a racially derogatory manner on several occasions and frequently saw racist graffiti); see
Maldonado v. Publix Supermarkets, 939 So. 2d 290, 295 (4th DCA 2006) (finding four isolated
incidents are insufficient to establish the requisite frequency); cf Rusley v. Pride Restaurants, 367
F.3d 1238, 1248 (ll th Cir. 2004) (classifying conduct as physically threatening and humiliating
where he followed plaintiff into restroom, repeatedly attempted to touch her breasts, placed his
hands in her pants, and then pulled off her pants).
In stark contrast with the egregious facts in Hulsey, the alleged incidents, here, are relatively
few and much less objectionable. Indeed, isolated remarks alone are not sufficient to create a severe
and pervasive work environment. Cazeau v. Wells Fargo Bank, N.A., 614 F. App'x. 972, 979 (11th
Cir. 2015); see Alfano v. Costello, 294 F.3d 365, 374 (2nd Cir. 2002) ("Incidents must be more than
Case No: 2019-032096-CA-0l Page!Oof12
episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.").
For example, the Eleventh Circuit has found the following facts insufficient as a matter of law. In
Mendoza v. Borden, Inc., five incidents over an eleven-month period were insufficient. 195 F.3d
1238, 1249 (I Ith Cir. 1999). In Galdamez v. DHL Air Exp. USA, three encounters over a two-year
period were insufficient. 578 F. App'x. 887, 889 (I Ith Cir. 2014). Applying the Eleventh Circuit's
reasoning, a fortiori, here, because Plaintiff, who had worked with the City from 2006 to 2018, can
only speak to these three sporadic incidents. According to case law, Plaintiffs contentions of
sexual harassment are not severe or pervasive given the frequency and severity of the alleged
conduct.
In addition, the City is entitled to summary judgment because it took immediate corrective
action to remedy the situation. Watson v. Blue Circle, Inc., 324 F.3d 1252, 1257 (11 th Cir. 2003).
The record shows the City conducted an extensive investigation into the allegations of
"unwelcomed requests" and the showing of "pornographic images" made against Cobb. Further,
Plaintiffs allegations against Cobb were only raised in a cross-complaint when the City was
investigating Cobb's allegations against the Plaintiff herself The undisputed facts reveal that
Plaintiff, despite her past experience as a shop steward, did not follow proper procedure when she
failed to promptly report the alleged incident: the allegation of Cobb showing her "pornographic
images" occurred in "In early 2017," C. ~ 17, yet she only brought up the incident in July of 2018.
4. Conclusion
Based upon the foregoing, and for the reasons stated on the record, the Court GRANTS the
City's Motion for Final Summary Judgment because the City showed that there is no genuine
dispute as to any material fact and the City is entitled to judgment as a matter oflaw.
IT IS ADJUDGED that Plaintiff Ida M. Smart takes nothing by this action and that
Defendant City of Miami Beach shall go hence without day. The Court reserves jurisdiction to
award costs and attorney fees on a future date.
Case No: 2019-032096-CA-OI Page 11 ofl2
DONE and ORDERED in Chambers at Miami-Dade County, F lorida on this 18th day of July,
2022.
2 019-032096-CA-0107-18-20221:14 PM
H o n. Charles Johnson
Final Order as to All Parties SRS #: 12 (Other)
CIRCUIT COURT JUDGE
El ectronically Signed
THE COURT D ISMISSES TH IS CASE AGAINST ANY PARTY NOT LISTED IN TH IS
FINAL ORDER OR PREVIOUS ORDER(S). THIS CASE IS CLOSED AS TO ALL PARTI ES.
Electronically Served:
Benjamin Z Braun, benjaminbraun@ miamibeachfl.gov
Daniel Harrison Hunt, dhuntlaw@gmail.com
Daniel Harrison Hunt, np04l9@ univers alproperty.com
Daniel Harrison Hunt, dh03 08@ universalproperty.c om
Henry J Hunnefeld, henryhunnefeld@ miamibeachfl.gov
Henry J Hunnefeld, yamilexmorales@ miamibeachfl.gov
Henry J Hunnefeld, sandraperez@miamibeachfl.gov
Jason S Remer, jremer@ rgpattorneys.com
Jason S Remer, ng@ rgpattomeys.com
Jason S Remer, pn@ rgpattomeys.com
Robert F. Rosenwald Jr., robertrosenwald@ miamibeachfl.gov
Robert F. Rosenwald Jr., miriammerino@ miamibeachfl .gov
Robert F . Rosenwald Jr., robertrosenwald@ aim.com
Physically Served:
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