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Articles Posted in Labor – Employment Law

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Florida law contains an explicit privilege against disclosure of alleged trade secrets.  This trade secret privilege is set forth in Florida Statutes Section 90.506, which states in pertinent part: “A person has a privilege to refuse to disclose, and to prevent other persons from disclosing, a trade secret owned by that person if the allowance of the privilege will not conceal fraud or otherwise work injustice.  When the court directs disclosure, it shall take protective measures that the interests holder of the privilege, the interests of the parties, and the furtherance of justice require.”  To ensure that this privilege is properly protected, courts have set forth a three-step analysis for trial courts to undertake when faced with a claim that a discovery request seeks production of protected trade secret information.   Trade secrets often are asserted in lawsuits, including lawsuits involving non-compete agreements, claims of unfair competition, and employment law.  Peter Mavrick is a Miami business litigation attorney, and represents clients in business litigation in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

The first step requires the trial court determine whether the information requested constitutes or contains trade secret information.  This step will usually, but not always, require the trial court to conduct an “in camera review” of the documents to determine whether, in fact, they contain trade secret information.  The legal term “in camera review” means that the Judge reviews documents outside of the view of the public, to retain confidentiality of the information the Judge is reviewing.  Generally, if the parties agree that the documents contain trade secret information, then no in camera review would be needed.  Where the parties disagree on whether the requested documents contain trade secret information, an in camera review or evidentiary hearing will be needed.  Florida’s Third District Court of Appeal explained in Coast Fire, Inc. v. Triangle Fire, Inc., 170 So.3d 804 (3d DCA 2014), that “[s]uch a hearing may include expert testimony … Expert testimony may be particularly useful in cases where the trial court does not have requisite experience in examining the subject information.”   Revello Med. Mgmt., Inc. v. Med-Data Infotech USA, Inc., 50 So.3d 678 (Fla. 2d DCA 2010), also explained that “if the circuit judge does not have the requisite experience in examining [computer source] code, he may wish to appoint a neutral computer expert to review [the party’s] program.”

If the Judge determines in this first step that the discovery request seeks information subject to the trade secret privilege, the second step of the analysis requires the Judge to determine “whether the party seeking production can show reasonable necessity for the requested information.”  Ameritrust Ins. Corp. v. O’Donnell Landscapes, Inc., 899 So.2d 1205 (2d DCA 2005).  This step usually requires the trial court to decide whether the need for producing the documents outweighs the interest in maintaining their confidentiality.  This is a fact-intensive analysis.

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Title VII makes it an “unlawful employment practice for an employer . . . to discharge any individual . . . because of such individual’s religion.” Title VII defines religion as follows: “[t]he term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e. Under Title VII, an employer therefore has a “statutory obligation to make reasonable accommodation for the religious observances of its employee, short of incurring an undue hardship.” Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

To establish a prima facie case of religious discrimination under Title VII, a plaintiff must first “present evidence sufficient to prove that (1) he had a bona fide religious belief that conflicted with an employment requirement; (2) he informed his employer of his belief; and (3) he was discharged for failing to comply with the conflicting employment requirement.” Beadle v. Hillsborough County Sheriff’s Dep’t, 29 F.3d 589 (11th Cir. 1994). The burden then shifts to the defendant to “demonstrate[] that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 42. U.S.C. § 2000e. This is a two-prong inquiry.

“To satisfy its burden, the employer must demonstrate either (1) that it provided the plaintiff with a reasonable accommodation for his or her religious observances or (2) that such accommodation was not provided because it would have caused an undue hardship – that is, it would have ‘result[ed] in more than a de minimis cost to the employer.’” E.E.O.C. v. Firestone Fibers & Textiles Co., 515 F.3d 307 (4th Cir. 2008). “Thus, if an employer has provided a reasonable accommodation, [the court] need not examine whether alternative accommodations not offered would have resulted in undue hardship.” E.E.O.C. v. Firestone Fibers & Textiles Co., 515 F.3d 307 (4th Cir. 2008).

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Business litigation in Florida often involves claims for trade secret misappropriation under Florida’s Uniform Trade Secret Act (FUTSA) or the Defend Trade Secrets Act (DTSA). For liability to attach under DTSA or FUTSA, the trade secret information must be the fruit of a wrongful acquisition or misappropriation. Misappropriation of a trade secret occurs “where a person who knows or has reason to know that the trade secret was acquired by improper means acquires the trade secret of another or where a person who has obtained the trade secret by improper means discloses or uses the trade secret of another without express or implied consent.” ACR Elecs., Inc. v. DME Corp., 2012 WL 13005955 (S.D. Fla. Oct. 31, 2012). In business litigation involving an employment relationship, misappropriation may occur during the employment or after an employees’ employment terminates. Peter Mavrick is a Fort Lauderdale business litigation attorney, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

The DTSA defines “misappropriation” to include “acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means” or “disclosure or use of a trade secret of another without express or implied consent” in specified circumstances. 18 U.S.C. § 1839(5). “Improper means” under DTSA includes “theft, bribery, misrepresentation, [and] breach or inducement of a breach of a duty to maintain secrecy,” but excludes “reverse engineering, independent derivation, or any other lawful means of acquisition.” 18 U.S.C. § 1839(6). Meanwhile, the definition of “improper means” under FUTSA also includes “breach or inducement of a breach of a duty to maintain secrecy.” Fla. Stat. § 688.002(1). While the general definitions of a trade secret are identical under FUTSA and DTSA, a court’s analysis under each statute is substantially equivalent. Compulife Software Inc. v. Newman, 959 F.3d 1288 (11th Cir. 2020). Actions may be “improper” for trade-secret purposes even if not independently unlawful. Compulife Software Inc. v. Newman, 959 F.3d 1288 (11th Cir. 2020).

Florida courts routinely find that trade secrets may be acquired through improper means after an employment relationship ends. Federal courts within the Eleventh Circuit Court of Appeals must review the facts surrounding the alleged misappropriation on a case-by-case basis. For example, in Int’l Hair & Beauty Sys., LLC v. Simply Organic, Inc., the United States District Court in and for the Middle District of Florida granted plaintiff’s motion for preliminary injunction against the business’ former technical director for misappropriation of company trade secrets and to enforce non-compete and non-solicitation agreements. 2011 WL 5360098 (M.D. Fla. Sep. 26, 2011). During his employment, the Simply Organic defendant “had access to contact management lists including clients, customers and potential customers” of plaintiff’s hair salon. Months after his employment ended, the former employee then obtained, from another former employee of plaintiff, “a list of hair salons and beauty supply stores” that contained several “salons that were utilizing products of Plaintiff.”

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Title VII’s anti-retaliation provision makes it “an unlawful employment practice for an employer to discriminate against any of [its] employees . . . because he has opposed any practice made an 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. § 2000. This provision serves to “prevent[] an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). The first part of this provision is called the “opposition clause,” which prohibits retaliation against an employee who “opposed any practice made an unlawful employment practice by” Title VII. Patterson v. Georgia Pacific, LLC, et al., 2022 WL 2445693 (11th Cir. July 5, 2022). Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

The United States Supreme Court has concluded that “[w]hen an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication virtually always constitutes the employee’s opposition to the activity.” Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 555 U.S. 271 (2009). Some federal courts generally recognize “oppositional conduct” as conduct that “encompasses utilizing informal grievance procedures as well as staging informal protests and voicing one’s opinion in order to bring attention to an employer’s discriminatory activities.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253 (4th Cir. 1998).

Other federal courts apply the “manager exception” when determining oppositional conduct and evaluating retaliation claims under the Fair Labor Standards Act (“FLSA”). This exception requires an employee to “step outside his or her role of representing the company” to engage in protected activity. McKenzie v. Renberg’s Inc., 94 F.3d 1478 (10th Cir. 1996). Courts apply this exception because “nearly every activity in the normal course of a manager’s job would potentially be protected activity,” and “[a]n otherwise typical at-will employment relationship could quickly degrade into a litigation minefield.” Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617 (5th Cir. 2008). Several district courts have imported the manager exception into Title VII’s anti-retaliation provision. DeMasters v. Carilion Clinic, 796 F.3d 409 (4th Cir. 2015).

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Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating “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). Sexual harassment can constitute discrimination based on sex for purposes of Title VII. Mendoza v. Borden, Inc., 193 F.3d 1238 (11th Cir. 1999). Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach.  Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

Sexual harassment generally comes in the following two forms: harassment that does not result in a tangible employment action (typically referred to as “hostile work environment” harassment), and harassment that does result in a tangible employment action (typically referred to as “quid pro quo” harassment). Johnson v. Booker T. Washington Broadcasting Serv., Inc., 234 F.3d 501 (11th Cir. 2000). A plaintiff establishes a hostile work environment under Title VII upon proof that “discriminatory intimidation, ridicule, and insult [permeate the workplace in a manner] that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Jones v. UPS Ground Freight, 683 F.3d 1283 (11th Cir. 2012).

To estimate a prima facie case of hostile work environment, the employer must show that: (1) she “belongs to a protected group;” (2) she “has been subject to unwelcome sexual harassment;” (3) the harassment was “based on [her] sex;” (4) “the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment;” and (5) there is “a basis for holding the employer liable.” Mendoza v. Borden, Inc., 193 F.3d 1238 (11th Cir. 1999).

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Most claims of employment discrimination under Title VII of the Civil Rights Act of 1964 (as amended) rely on circumstantial evidence.  The plaintiff-employee may attempt to prove discrimination through circumstantial evidence by satisfying the United States Supreme Court’s burden-shifting framework set forth it its decision in McDonnell Douglas v. Green, 411 U.S. 792 (1973).  The McDonnell Douglas framework, which is the prevailing framework used to analyze whether a plaintiff’s discrimination claim can survive an employer’s motion for summary judgment, puts the initial burden on the plaintiff to establish a prima facie case of discrimination. McDonnell Douglas v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas, the plaintiff establishes a prima facie case of discrimination by showing that: (1) he belongs to a protected class; (2) he was subject to an adverse employment action; (3) he was qualified to perform his job; and (4) his employer treated similarly situated employees outside his protected class more favorably. Lewis v. City of Union Cnty. Ga., 918 F.3d 1213 (11th Cir. 2019).  Once the plaintiff establishes a prima facie case, the burden then shifts to the employer, who must articulate a legitimate, nondiscriminatory reason for the challenged employment action. McDonnell Douglas v. Green, 411 U.S. 792 (1973). “[T]he defendant must clearly set forth, through the introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).  Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach.  Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

To satisfy the burden of producing legitimate, nondiscrimination reasons, the employer need not persuade the court that it was actually motivated by its proffered reasons. Combs v. Plantation Patterns, 106 F.3d 1519 (11th Cir. 1997). Rather, it is sufficient if the employer’s evidence raises genuine issues of fact as to whether it discriminated against the employee. Combs v. Plantation Patterns, 106 F.3d 1519 (11th Cir. 1997). “[T]o satisfy this immediate burden, the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision has not been motivated by discriminatory animus.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). A subjective reason can constitute a legally sufficient, legitimate, nondiscriminatory reason under the McDonnell Douglas analysis. Chapman v. Al Transport, 229 F.3d 1012 (11th Cir. 2000).

For example, a sufficient, legitimate, non-discriminatory reason for the employer to not hire the plaintiff applicant for a sales clerk or wait staff position may be that the employer did not like the plaintiff’s “appearance because his hair was uncombed and he had dandruff all over his shoulders,” “because he had his nose pierced,” or “because his fingernails were dirty.” Chapman v. Al Transport, 229 F.3d 1012 (11th Cir. 2000). An example of a sufficient, legitimate, non-discriminatory reason for the employer to terminate the employee’s employment may be that the plaintiff disobeyed and/or refused to follow the employer’s rules and policies. Perryman v. First United Methodist Church, 2007 WL 703604 (M.D. Ala. Mar. 5, 2007). So long as the employer’s proffered reason for the adverse employment action is “one that might motivate a reasonable employer,” Pennington v. City of Huntsville, 261 F.3d 1262, 1267 (11th Cir. 2001), the employer will likely meet its burden of producing a legitimate, nondiscriminatory reason for its decision.

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Employers typically are not liable for alleged retaliatory acts against their current or former employees when the employee is not qualified for the employment position. This is true under both Florida and federal law governing retaliation claims. The Florida Civil Rights Act of 1992 (FCRA) provides that it is unlawful for “an employer . . . to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation under this section.” Section 760.10 of the FCRA also governs claims arising over an employer’s “denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge” and “threats, reprimands, negative evaluations, [and] harassment[.]” Donovan v. Broward County Bd. Of Com’rs, 974 So. 2d 458 (Fla. 4th DCA 2008).  Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach.  Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

The FCRA was modeled after its federal law counterpart, Title VII of the Civil Rights Act of 1964, which prohibits employers with more than 15 employees from discriminating “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). Federal and state courts in Florida analyze FCRA claims under the same framework as Title VII claims. Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253 (11th Cir. 2010).

To establish a prima facie case for retaliation under Title VII, a plaintiff must show that he or she: (1) engaged in statutorily protected activity, (2) suffered an adverse reaction, and (3) the adverse reaction was causally related to the protected activity. Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121 (11th Cir. 2020). Title VII prohibits an employer from retaliating against “any . . . [employee] . . . because [s]he has opposed any practice made an unlawful employment practice” by Title VII, “or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].” Gogel v. Kia Motors Mfg. of Georgia, Inc., 967 F.3d 1121 (11th Cir. 2020). A plaintiff must satisfy the same elements to establish a retaliation claim under the FCRA. Russell v. KSL Hotel Corp., 887 So. 2d 372 (Fla. 3d DCA 2004). Once the prima facie case is established, it creates a “presumption that the adverse action was the product of an intent to retaliate.” Bryant v. Jones, 575 F.3d 1281 (11th Cir. 2009).

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In many cases, employers or managers make statements that do not qualify as sexual harassment as a matter of law, even though the statements may be viewed as inappropriate.   To assess the best defense against an employee’s claim of sexual harassment, it is important to understand the types of sexual harassment under the law and whether the employee’s allegations qualify as a valid claim under Federal or Florida law.  One type of sexual harassment under Federal and Florida law is called “quid pro quo” sexual harassment. Florida law follows Federal law concerning whether the alleged actions constitute “sexual harassment.”

Employees can sue their current or former employers based on a quid pro quo theory of sexual harassment under Title VII of the Civil Rights Act of 1964. “Quid pro quo sexual harassment occurs when an employer alters an employee’s job conditions as a result of the employee’s refusal to submit to sexual demands.” Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311 (11th Cir. 1989). This type of claim differs from sexual harassment claims based on a hostile work environment where an employer’s conduct “has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive environment.” Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach.  Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

“The gravamen of a quid pro quo sexual harassment claim is that the employer conditions an employment benefit or job status upon the employee’s submission to conduct of a sexual nature.” Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311 (11th Cir. 1989). To establish a prima facie case of quid pro quo sexual harassment against their current or former employer, an employee must show “(1) that [she] belongs to a protected group, (2) that [she] was subjected to unwelcome sexual harassment, (3) that the harassment complained of was based on sex, and (4) that [her] reaction to the harassment complained of affected tangible aspects of [her] compensation, or terms, conditions, or privileges of employment.” Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554 (11th Cir. 1987). An employer is strictly liable for quid pro quo sexual harassment by a supervisor based on the agency doctrine of respondent superior.

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The Americans With Disabilities Act (ADA) prohibits discrimination by an employer “against a qualified individual on the basis of disability” in any of the “terms, conditions, and privileges of employment.”  42 U.S.C. § 12112(a).  The United States Court of Appeal for the Eleventh Circuit in Holly v. Clairson Industries, L.L.C., 492 F.3d 1247 (11th Cir. 2007), explained that to establish a prima facie case under the ADA requires a plaintiff to show that, at the time of the adverse employment action, he or she had a disability, he or she was a qualified individual, and he or she was subjected to unlawful discrimination because of his or her disability.  Peter Mavrick is a Fort Lauderdale employment lawyer. The Mavrick Law Firm also represents clients in business litigation, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, and other legal disputes in federal and state courts and in arbitration.

In 2008, Congress made significant changes to the ADA by enacting the ADA Amendments Act of 2008, Pub.L.No. 110-325,122 Stat. 3553.  These amendments indicate that an extensive analysis is not required to determine whether an individual’s impairment is a disability under the ADA.  The ADA, at 42 U.S.C. § 12102(1), defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities of an individual; “a record of such an impairment,” or “being regarded as having such an impairment.”  Major life activities include, but are not limited to, “sleeping, walking, standing, lifting, … [and] bending.”

Under the ADA, a “qualified individual” is “an individual who, with or without a reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”  42 U.S.C. § 12111(8).  A great deal of employment litigation under the ADA is over the term “reasonable accommodation,” including whether “reassignment” constitutes a reasonable accommodation.  When an employee seeks reassignment as a reasonable accommodation for a disability, the relevant question when deciding whether he or she is a qualified individual is not whether the employee is qualified for his or her current position, but whether he or she is qualified for the new job.  For example, in Lucas v. W.W. Grainger, Inc., 257 F.3d 1249 (11th Cir. 2001), the federal appellate court examined the essential functions of the new position, not the old one, to determine whether the employee was qualified within the meaning of the ADA.  The question sometimes arises in ADA litigation whether the ADA mandates preferential treatment for disabled persons who seek reassignment of their positions.  Federal courts refer to such preferential treatment as “noncompetitive reassignment.”

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Employees (current and former) can sue their employers for race and gender discrimination and hostile work environments under the Florida Civil Rights Act (the “FCRA”). The FCRA was patterned after Title VII of the Civil Rights Act of 1964, which prohibits employers with more than 15 employees from discriminating “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). Therefore, federal and state courts in Florida analyze FCRA claims under the same framework as Title VII claims. Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1271 (11th Cir. 2010).  Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims.  Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

An employee suing under FCRA or Title VII can establish their race and gender discrimination claim with either direct or circumstantial evidence. See, e.g., Mathis v. Wachovia Bank, 255 F. App’x 425, 429 (11th Cir. 2007). To establish a prima facie case of discrimination under FRCA or Title VII, employees must show that: (1) they were a member of a protected class defined by race or gender; (2) they were qualified for the job; (3) they suffered an objectively serious adverse job action; and (4) they were treated less favorably than a similarly-situated individual. See Maynard v. Board of Regents of Div. of Univs. of Fla. Dep’t of Educ., 342 F.3d 1281, 1289 (11th Cir. 2003). An adverse action is objectively serious if it is “tangible enough to alter [the employee’s] compensation, terms, conditions, or privileges of employment.” See Stavropoulos v. Firestone, 361 F.3d 610, 617 (11th Cir. 2004). “The Supreme Court has stressed that Title VII provides no protection against ‘those petty slights or minor annoyances that often take place at work and that all employees experience.’” Harrison v. Belk, Inc., 748 F. App’x 936, 943 (11th Cir. 2018). Florida law provides that individuals who were allegedly treated better—known in legal speak as “comparators”—must be “similarly situated in all material respects.” Lewis v. City of Union City, 918 F.3d 1213, 1218 (11th Cir. 2019) (en banc) (emphasis added). In other words, the “comparator” must have “engaged in the same basic conduct (or misconduct) as the plaintiff” and that they “‘cannot reasonably be distinguished.’” Id. at 1227-28.

Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to rebut the presumption of discrimination by giving a legitimate and non-discriminatory reason for the challenged adverse action. The burden then shifts back to the plaintiff after defendant establishes a non-discriminatory reason. The plaintiff then must prove with “significantly probative evidence” that the asserted reason for the adverse job action was merely a pretext for discrimination. Brooks v. County Commission of Jefferson County, Ala., 446 F.3d 1160, 1163 (11th Cir. 2006). To sufficiently demonstrate “pretext,” a plaintiff may not simply “quarrel with the wisdom of the employer’s reason; instead, as long as the reason ‘is one that might motivate a reasonable employer” to do what it did, the plaintiff “must meet that reason head on and rebut it.’” See Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000). A reason cannot be found a pretext for discrimination “unless it is shown both that the reason was false, and that discrimination was the real reason.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993).

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