Opinions and documents
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 25-CV-14356-DMM
STEPHEN SPILKER,
Plaintiff,
v.
INDIAN RIVER MEMORIAL HOSPITAL
d/b/a CLEVELAND CLINIC INDIAN
RIVER HOSPITAL,
Defendant.
________________________________________________/
REPORT AND RECOMMENDATION ON DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT (ECF NO. 98)
Defendant, Indian River Memorial Hospital d/b/a Cleveland Clinic Indian
River Hospital (“Cleveland Clinic”), moves for summary judgment on all claims
asserted by Plaintiff, Stephen Spilker. ECF No. 98. Mr. Spilker brings claims for
racial discrimination under the Florida Civil Rights Act (“FCRA”), gender
discrimination under the FCRA, retaliation under the FCRA, racial discrimination
under 42 U.S.C. § 1981, racial discrimination under Title VII, gender discrimination
under Title VII, and retaliation under Title VII. ECF No. 8. U.S. District Judge
Donald M. Middlebrooks referred the Motion to me for a report and recommendation.
ECF No. 75. For the following reasons, it is RECOMMENDED that the Motion for
Summary Judgment be GRANTED and judgment entered in favor of Cleveland
Clinic.
PROCEDURAL POSTURE
Rather than appeal my rulings to U.S. District Judge Donald M. Middlebrooks
as required under the Local Rules, Mr. Spilker has filed various notices and requests
seeking an interlocutory appeal with the Eleventh Circuit under 28 U.S.C. § 1292.
ECF Nos. 106, 109, 121, 126. Section 1292 allows for an interlocutory appeal to be
taken only in specifically enumerated circumstances not at issue here, or when a
district judge is of the opinion that an interlocutory order “involves a controlling
question of law as to which there is substantial ground for difference of opinion and
that an immediate appeal from the order may materially advance the ultimate
termination of the litigation” and the district judge “so state[s] in writing in such
order.” 28 U.S.C. § 1292(a)-(b). The application for an appeal under § 1292 “shall not
stay proceedings in the district court unless the district judge or the Court of Appeals
or a judge thereof shall so order.” § 1292(b). As explained in the Court’s denial of Mr.
Spilker’s request to proceed in forma pauperis on appeal, ECF No. 130, the appeal is
not taken in good faith and is frivolous, and the Court has not stayed proceedings.
Accordingly, this matter is not stayed pending Mr. Spilker’s appeal, and ruling on
Cleveland Clinic’s Motion for Summary Judgment is proper.
SUMMARY JUDGMENT STANDARD
A party may obtain 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.” Fed. R. Civ. P. 56(a).
The parties may support their positions by citation to the record,
including inter alia, depositions, documents, affidavits, or declarations.
Fed. R. Civ. P. 56(c). An issue is genuine if “a reasonable trier of fact
could return judgment for the non-moving party.” A fact is material if it
“might affect the outcome of the suit under the governing law.” The
Court views the facts in the light most favorable to the non-moving party
and draws all reasonable inferences in its favor.
…
The moving party shoulders the initial burden of showing the absence
of a genuine issue of material fact. Once this burden is satisfied, “the
nonmoving party ‘must make a sufficient showing on each essential
element of the case for which he has the burden of proof.’” Accordingly,
the non-moving party must produce evidence, going beyond the
pleadings, and by its own affidavits, or by depositions, answers to
interrogatories, and admissions on file, designating specific facts to
suggest that a reasonable jury could find in his favor.
Rubenstein v. Fla. Bar, 72 F. Supp. 3d 1298, 1306–08 (S.D. Fla. 2014) (citations
omitted). “The mere existence of a scintilla of evidence in support of the [non-moving
party’s] position will be insufficient; there must be evidence on which a jury could
reasonably find for the [non-moving party].” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986). “If more than one inference could be construed from the facts by a
reasonable fact finder, and that inference introduces a genuine issue of material fact,
then the district court should not grant summary judgment.” Bannum, Inc. v. City of
Fort Lauderdale, 901 F.2d 989, 996 (11th Cir. 1990).
The moving party’s burden on a motion for summary judgment
“depend[s] on whether the legal issues ... are ones on which the movant
or the non-movant would bear the burden of proof at trial.” Fitzpatrick
v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). “[F]or issues on
which the movant would bear the burden of proof at trial, ‘that party
must show affirmatively the absence of a genuine issue of material fact:
it must support its motion with credible evidence ... that would entitle it
to a directed verdict if not controverted at trial.’” Id. (emphasis in
original) (quoting United States v. Four Parcels of Real Prop. in Greene
& Tuscaloosa Ctys. In State of Ala., 941 F.2d 1428, 1437 (11th Cir.
1991)). “For issues, however, on which the non-movant would bear the
burden of proof at trial, ‘the moving party is not required to support its
motion with affidavits or other similar material negating the opponent's
claim in order to discharge this initial responsibility.’” Id. (emphasis in
original) (quoting Four Parcels, 941 F.2d at 1437–38).
Nunez v. Coloplast Corp., 461 F. Supp. 3d 1260, 1264 (S.D. Fla. May 20, 2020).
Federal Rule of Civil Procedure 56 and Local Rule 56.1 mandate the procedure
for pleading (and responding to) a Motion for Summary Judgment. Rule 56(c)(1)
states:
A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). Our Local Rules require even greater specificity. Each
asserted or disputed fact must be “supported by specific, pinpoint references” to
particular parts of the record. S.D. Fla. L.R. 56.1(b)(1)(B), (b)(2)(A); see also Order
Setting Trial and Pre-Trial Schedule, ECF No. 10 at 4. “The pinpoint citations shall
reference pages and line numbers, if appropriate, of exhibits, designate the number
and title of each exhibit, and provide the ECF number of all previously filed materials
used to support the Statement of Material Facts. When a material fact requires
specific evidentiary support, a general citation to an exhibit without a page number
or pinpoint citation (e.g., ‘Smith Affidavit’ or ‘Jones Deposition’ or ‘Exhibit A’) is non-
compliant.” S.D. Fla. L.R. 56(b)(1)(B).
The Court has discretion to disregard a factual assertion or dispute that is not
properly presented or supported. Fed. R. Civ. P. 56(e); S.D. Fla. L.R. 56.1(c), (d). The
Court “need consider only the cited materials, but it may consider other materials in
the record.” Fed. R. Civ. P. 56(c)(3). “If a party fails to properly support an assertion
of fact or fails to properly address another party’s assertion of fact as required by Rule
56(c), the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials —
including the facts considered undisputed — show that the movant is
entitled to it; or
(4) issue any other appropriate order.
Fed. R. Civ. P. 56(e). A factual assertion that is not properly disputed may be deemed
admitted “provided that: (i) the Court finds that the material fact is supported by
properly cited record evidence; and (ii) any exception under Fed. R. Civ. P. 56 does
not apply.” S.D. Fla. L.R. 56.1(c).
UNDISPUTED FACTS
In compliance with Local Rule 56.1, Cleveland Clinic filed a 41-paragraph
Statement of Material Facts (“SOMF”) with citations for each paragraph. ECF No.
97. Mr. Spilker did not respond to Cleveland Clinic’s SOMF, in violation of Local Rule
56.1. On July 17, 2026, the Court gave Mr. Spilker an opportunity to correct this
violation by filing a response to the SOMF by July 27, 2026. ECF No. 111. Rather
than comply with the Local Rule, Mr. Spilker filed an additional response to the
motion for summary judgment that consisted primarily of argument, unsupported
allegations, and a handful of citations to docket entries and exhibits. ECF No. 116.
Accordingly, Cleveland Clinic’s properly supported facts in the SOMF are deemed
admitted. Where Mr. Spilker has identified and supported facts that have not been
disputed, those facts are included below. Even if the SOMF’s facts were not deemed
admitted, Mr. Spilker fails to come forth with evidence in support of his claims, there
is no genuine dispute of material fact, and Cleveland Clinic is entitled to summary
judgment.
The following facts are undisputed for purposes of the Motion:
Mr. Spilker obtained his Certified Nursing Assistant license on January 15,
2015. ECF No. 97 ¶1; ECF No. 95-1. Cleveland Clinic hired Mr. Spilker as a Patient
Care Nurse Assistant on April 10, 2023. ECF No. 94-6. He rotated to different
departments. ECF No. 64, Spilker Dep. 164: 15-17. Mr. Spilker obtained an Associate
in Arts degree on August 4, 2023, and a Bachelor of Applied Science degree on
December 8, 2023. ECF No. 86-1 at 66-68.
Mr. Spilker applied for various jobs within Cleveland Clinic during his
employment:
1. Manager – Patient Transportation. ECF No. 94-2 at 1, ECF No. 94-38. The
position required a minimum of three years of supervisory experience, with
a preference for patient transportation experience. ECF No. 94-13.
Mohammed Shdifat was hired for the position. ECF No. 64, Spilker Dep.
59:9-15, 103:14-16. Mr. Spilker had no information about Mr. Shdifat’s
experience or qualifications. Id. 103:14-24. Mr. Shdifat’s qualifications
included: (i) over three years of experience as an Assistant Director of
Environmental Services and Patient Transport at three facilities operated
by Crothall Healthcare; (ii) an additional year as Bureau Chief for the State
of Delaware Department of Public Health; and (iii) a Master of Science
degree in Health Services Administration. ECF No. 94-14. On March 10,
2024, Spilker was notified that he did not receive the position of Manager-
Patient Transportation. ECF No. 94-38.
2. SQPE Specialist. Mr. Spilker applied for this position October 30, 2024.
ECF No. 94-2 at 1. Cleveland Clinic hiring manager, Michelle Comeaux,
interviewed Mr. Spilker and did not select him for the position; she selected
Marilyn Sherman. ECF No. 64, 107:6-17. Mr. Spilker later attended a
meeting with Ms. Comeaux, Linda Walton and Lorna Landherr. ECF No.
64, 77:21-80:6. Ms. Comeaux explained to Spilker that her decision was
based on the interview. Id. at 80:21-18. She provided Mr. Spilker with a
specific example of a question and answer from his interview, but he was
unable to remember the details. Id. at 81:6-18.
3. Director of Human Resources. On February 19, 2023, Mr. Spilker applied
for the position of Director of Human Resources, which required a bachelor’s
degree. ECF Nos. 94-2, 94-3, 94-36. Mr. Spilker did not have a bachelor’s
degree. ECF No. 64 45:13-46:7. Mr. Spilker was notified that he could not
be considered for the position because he did not meet the minimum
requirements for the position. ECF No. 94-36. Mr. Spilker again applied for
Director of Human Resources on July 7, 2023. ECF No. 94-2. He still did
not possess a bachelor’s degree and was notified that he did not meet the
minimum qualifications for the position. ECF No. 94-3, 94-37; ECF No. 64
45:13-46:7.
4. Patient Service Navigator. On February 20, 2023, Mr. Spilker applied for
the position of Patient Service Navigator. ECF No. 94-2 at 2. The position
was received by Jasmine Johnson. ECF No. 96-1, Resp. to No. 11. Mr.
Spilker has no knowledge about the job-related qualifications or experience
of Ms. Johnson. ECF No. 64 101:23-102:4.
5. Patient Companion. On February 23, 2023, Mr. Spilker applied for the
position of Patient Companion, which was filled by Mikaela Robinson. ECF
Nos. 94-2, 96-1, Response to No. 11. Spilker has no knowledge about the
qualifications or experience of Ms. Robinson. ECF No. 64 102:5-11.
6. Department Supervisor III. On November 25, 2023, Mr. Spilker applied for
the position of Department Supervisor III, which requires a bachelor’s
degree and at least four years of supervisory experience. ECF Nos. 94-2, 94-
45. Mr. Spilker did not have a bachelor’s degree nor four years of
supervisory experience. ECF No. 64 45:13-46:7, 27:14-28:3, 28:24-29:18,
30:6-16, 30:24-31:20, 35:3-12; ECF No. 94-15. Cleveland Clinic notified Mr.
Spilker that he did not meet the minimum requirements and could not be
considered for the position, which was filled by Ashley Ruiz. ECF Nos. 94-
46; 96-1 ¶11. Mr. Spilker had no knowledge of Ms. Ruiz’s experience or
qualifications. ECF No. 64, 102:12-18.
7. Director – Ambulatory Operations. On November 27, 2023, Mr. Spilker
applied for the position of Director – Ambulatory Operations and withdrew
his application after he was informed that another candidate had been
selected. ECF No. 94-2, at 2; ECF No. 64, 168:17-170:7. Mr. Spilker never
compared his qualifications for the position to those of the person who he
believes received the position. Id. at 171:14-17.
Mr. Spilker applied for a number of other positions within Cleveland Clinic for
which he was not selected, including Registration Liaison, Account Representative
II, Corporate Compliance Coding/Billing Specialist, Candidate Experience Associate,
Department Manager I, Program Manager III, Administrative Program Coordinator,
Clinical Technician, OR Service Assistant, Talent Acquisition Preboarding
Coordinator, and HR Generalist. ECF Nos. 94-2, 96-1; ECF No. 64, 102:19-107:5. He
has no knowledge of the qualifications or experience of any of the individuals who
filled the positions. Id.
Cleveland Clinic’s Behavioral Health Center (“BHC”) is a facility that adjoins
the hospital where Mr. Spilker worked and treats patients with mental health
conditions or illnesses. ECF No. 64, 204:10-205:2. Mr. Spilker worked as a floater and
sometimes provided patient care at the BHC. Id. 204:3-9. On June 21, 2024, an
altercation occurred at the BHC between Mr. Spilker and two other employees, and
those employees complained about Mr. Spilker. Id. 205:3-206:5; ECF No. 94-17. The
Nurse-Manager informed Mr. Spilker’s supervisor, Barbara Sills, of various concerns
regarding his interactions and conduct. ECF No. 94-17. After Ms. Sills received the
information, she indicated that Mr. Spilker should not return to the BHC to work.
ECF No. 64, 207:7-21.
Cleveland Clinic uses an electronic medical recordkeeping system known as
EPIC. ECF No. 64, 188:5-17. Mr. Spilker was allowed to use EPIC solely for what was
necessary to provide and document patient care. Id. at 188:5-17, 197:3-7, 212:6-10.
Caregivers such as Mr. Spilker are permitted to access confidential information,
which includes patient and clinical information, “solely for authorized work-related
activity and strictly on a need to access basis to perform such work.” ECF No. 94-42
at 1-2.
Mr. Spilker was an hourly employee, was required to “clock in,” and was
prohibited from working “off the clock.” ECF No. 94-6, 94-39 at 2; ECF No. 64 at
185:8-10. Reviewing patient records on the EPIC system before clocking in is
considered working off the clock. Id. at 263:18-264:5, 267:7-22.
On January 10, 2025, a Nursing Operations Manager, Melody Noelke, reported
to Mr. Spilker’s supervisor, Ms. Sills, that she had witnessed Mr. Spilker accessing
EPIC off the clock. ECF No. 94-29 at 2. Ms. Noelke expressed concern about Mr.
Spilker’s access and if he had accessed information about BHC patients because he
appeared to have information about BHC patients obtained through EPIC even
though he no longer worked at the BHC and had not worked there since June 2024.
Id. On January 13, 2025, a compliance specialist was notified about Mr. Spilker’s
EPIC access, and she identified nine patient charts that were accessed on January
10, 2025, using Mr. Spilker’s credentials before Mr. Spilker clocked in for his shift
that day. ECF Nos. 94-30, 94-7 at 1. The specialist emailed Mr. Spilker on January
27, 2025, to ask his availability to discuss her findings. ECF No. 94-8. Mr. Spilker
called her within moments of receiving the email, then requested a meeting with Ms.
Sills. ECF No. 64, 181:4-20, 182:10-183:10, 216:7-22; ECF No. 94-9. While meeting
with Ms. Sills, Mr. Spilker admitted he had accessed the computer before clocking in
and stated that he was accessing the computer to “look[ ] up” employees working at
the BHC. ECF No. 64, 216:20-217:22.
The next day, January 28, 2025, Mr. Spilker attended a meeting with Ms. Sills
and an HR official, Jennifer Roosa. ECF No. 64, 220:12-221:8, 233:5-7. In this
meeting, Mr. Spilker was asked if he had ever shared his EPIC password, which he
denied. ECF No. 64, 224:3-227:2. He did indicate that he would use his ID badge to
sign in to train (or “precept”) employees on how to use a medical testing device, called
a glucometer, that tests blood sugar. Id. In those instances, the medical record would
reflect that Mr. Spilker performed the test when the other employee had actually
performed it. ECF No. 64, 265:7-266:24. On January 29, 2025, Mr. Spilker requested
a personal leave of absence through February 5, 2025. Id. at 234:2-17.
On February 11, 2025, Cleveland Clinic’s investigators completed their Final
Investigative Report, which closed the investigation and recommended terminating
Mr. Spilker’s employment. ECF No. 94-7 at 1. Cleveland Clinic concluded that Spilker
had violated workplace policy by accessing medical records without a job-related
reason to do so. ECF No. 94-12 at 3. Cleveland Clinic also concluded that by allowing
others to access the glucometer using his ID badge, it was inaccurately documented
in patient records that Mr. Spilker had performed tests when others performed them.
ECF No. 94-12 at 3. Cleveland Clinic further concluded that by performing work prior
to clocking in, Spilker violated the timekeeping policy. Id. Altogether, Cleveland
Clinic concluded that Spilker was responsible for two major infractions and one minor
infraction. Id. On February 14, 2025, Spilker was notified that his employment was
terminated. ECF No. 94-12.
On February 12, 2025, Mr. Spilker filed a charge of discrimination with the
Equal Employment Opportunity Commission (“EEOC”) and the Florida Commission
on Human Relations (“FCHR”). ECF No. 8 ¶32, ECF No. 86-1 at 3–5. He filed an
amended charge on February 25, 2025. Id.
DISCUSSION
Mr. Spilker brings the following claims against Cleveland Clinic: (1) Race
Discrimination under the Florida Civil Rights Act (“FCRA”); (2) Sex/Gender
Discrimination under the FCRA; (3) Retaliation under the FCRA; (4) Race
Discrimination under 42 U.S.C. § 1981; (5) Race Discrimination under Title VII; (6)
Sex/Gender Discrimination under Title VII; and (7) Retaliation under Title VII. ECF
No. 8.
A. Race Discrimination
Mr. Spilker contends that he applied to positions at Cleveland Clinic that were
given to less experienced, less qualified individuals who were women and/or
minorities, and attributes his rejection to Cleveland Clinic’s discriminatory policies.
ECF No. 81-1 ¶19. He also alleges that his race and gender were motivating factors
in Cleveland Clinic’s termination of his employment. Id. ¶45–50.
Title VII makes it unlawful for an employer to discharge or otherwise
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment because of his race or sex. 42 U.S.C. § 2000e-
2(a)(1); Horace v. ARIA, No 23-12414, 2024 WL 1174398, at *4 (11th Cir. Mar. 19,
2024). Similarly, the FCRA makes it unlawful for an employer to “discharge ... any
individual, or otherwise to discriminate against any individual with respect to
compensation, terms, conditions, or privileges of employment, because of such
individual's race ... [or] sex.” Fla. Stat. § 760.10(1)(a). Under 42 U.S.C. § 1981, “[a]ll
persons ... shall have the same right ... to make and enforce contracts ... as is enjoyed
by white citizens,” which in an employment context has been interpreted to mean
protection against discrimination based on race. Felder v. Bradford Health Servs.,
493 F. App’x 17, 19 (11th Cir. 2012) (citing Webster v. Fulton Cnty., Ga., 283 F.3d
1254, 1256 (11th Cir. 2002)). Discrimination claims brought under Title VII, § 1981,
and the FCRA are analyzed under the same framework. See, e.g., Surtain v. Hamlin
Terrace Found., 789 F.3d 1239, 1245 n.6 (11th Cir. 2015); Felder, 493 F. App’x at 19
n.3 (citing Rice-Lamar v. City of Fort Lauderdale, Fla., 232 F.3d 836, 843 n.11 (11th
Cir. 2000)); Jenkins v. Nell, 26 F.4th 1243, 1249 (11th Cir. 2022).
A plaintiff may use either direct evidence or circumstantial evidence to show
race discrimination. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086–87 (11th
Cir. 2004), abrogated on other grounds by Lewis v. City of Union City, 918 F.3d 1213,
1218 (11th Cir. 2019). If the plaintiff uses circumstantial evidence to support his
discrimination claim, courts generally apply the McDonnell Douglas burden-shifting
framework. Brown v. Ala. Dep't of Transp., 597 F.3d 1160, 1174, 1181 (11th Cir.
2010); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under McDonnell Douglas, a plaintiff must show (1) he belongs to a protected
class; (2) he suffered an adverse employment action; (3) he was qualified to perform
the job in question, and (4) his employer treated similarly situated employees outside
his protected class more favorably. Jenkins, 26 F.4th at 1249. In the failure-to-
promote context, the prima facie case requires showing (1) that the plaintiff belongs
to a protected class; (2) that he applied for and was qualified for a promotion; (3) that
he was rejected despite her qualifications; and (4) that other equally or less-qualified
employees outside her class were promoted. Brown v. Ala. Dep’t of Transp., 597 F.3d
1160, 1174 (11th Cir. 2010). To establish the fourth prong, a plaintiff must present
evidence of a comparator, someone who is “similarly situated in all material respects.”
Jenkins, 26 F.4th at 1249 (quoting Lewis, 918 F.3d at 1224). “Although what
constitutes a ‘material’ similarity or difference will differ from case to case, ordinarily
a similarly situated comparator and the plaintiff will: have engaged in the same basic
conduct or misconduct, be subject to the same employment policies, have the same
supervisor(s), and share an employment or disciplinary history.” Id.
If a plaintiff establishes a prima facie case, the employer must articulate a non-
discriminatory reason for the adverse employment decision. Kidd v. Mando Am.
Corp., 731 F.3d 1196, 1205 (11th Cir. 2013). “Because the employer’s burden is one
of production—not persuasion—the employer “need not persuade the court that it
was actually motivated by the proffered reason[ ].” Id. (quoting Chapman v. AI
Transp., 229 F.3d 1012, 1024 (11th Cir.2000)) (emphasis added in Kidd). Once the
employer identifies a reason, the burden shifts back to the plaintiff to introduce
evidence “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.” Id.
Cleveland Clinic argues that Mr. Spilker fails to (1) show he was qualified for
the positions he sought, (2) show that the jobs were given to less qualified individuals,
or (3) identify any similarly situated comparators. ECF No. 98 at 14–17. Mr. Spilker
argues that his qualifications include an associate in arts degree obtained August 4,
2023, a bachelor’s degree and healthcare administration certificate obtained
December 8, 2023, various letters and commendations praising his work, and serving
as chair for “monthly council meetings.” ECF No. 102 at 3–6. He claims he was given
“intermittent supervisory roles” in which he was asked to train new employees and
those roles gave him the requisite supervisory experience to qualify for the positions
he sought at Cleveland Clinic. Id. at 5. Mr. Spilker does not provide any evidence
regarding the qualifications of other employees who filled these positions, and
testified that he does not have any information regarding those qualifications. Id.;
ECF No. 64.
Here, it is clear that Mr. Spilker was not qualified for at least some of the
positions sought, such as HR Director, which required a bachelor’s degree at the time
he did not have one and several years of human resources experience. For those
positions he was arguably qualified for, he fails to show that the positions were given
to less-qualified individuals and fails to identify any proper comparators. He simply
speculates that because women and/or minority candidates received the jobs,
Cleveland Clinic must have discriminated against him. A plaintiff cannot succeed on
a failure-to-promote discrimination claim “by simply quarreling with the wisdom” of
the employer’s reasons for hiring another candidate and “cannot prove pretext by
simply arguing or even by showing that [s]he was better qualified than the person
who received the position [s]he coveted.” Kidd v. Mando Am. Corp., 731 F.3d 1196,
1206 (11th Cir. 2013). Mr. Spilker “must show that the disparities between the
successful applicant’s and [his] own qualifications were of such weight and
significance that no reasonable person, in the exercise of impartial judgment, could
have chosen the candidate selected over [him].” Id. (quoting Convergys Consumer
Mgmt. Grp., 509 F.3d 1344, 1349 (11th Cir. 2007)). Mr. Spilker provides no
information or evidence whatsoever regarding the other candidates’ qualifications,
admits he knows nothing about those qualifications, and made no effort to ascertain
those qualifications. ECF Nos. 64, 102, 109. He simply assumes there must have been
discrimination because he was not selected. Cleveland Clinic provides evidence of
some other candidates’ qualifications. For example, the Manager – Patient
Transportation position required “[h]igh-level management and leadership skills”
and “[a] minimum of 3 years of supervisory experience,” with a preference for patient
transportation experience. ECF Nos. 97 ¶3, 94-13 at 2. The candidate who filled the
position, Mr. Shdifat, had qualifications that included more than three years’
experience as a director of patient transportation, a year as Bureau Chief for the
State of Delaware Department of Public Health, and a Master of Science degree in
health care administration. ECF No. 97 at ¶5; ECF No. 94-38. Mr. Spilker does not
dispute these qualifications, nor does he dispute the qualifications of any other
candidates who were selected for positions he sought. ECF Nos. 64, 102, 109.
Accordingly, his claim for race and gender discrimination on the theory that he was
not promoted or selected for certain positions must fail. See Kidd, 731 F.3d at 1206.
Mr. Spilker also attributes his termination, at least in part, to race and gender
discrimination, but fails to identify any potential comparators or show that any
similarly situated employees engaged in the same or similar conduct and were
terminated. Regarding comparators and termination, Jenkins is instructive. In
Jenkins, the plaintiff, Jenkins, was a white male who worked as a crane operator. Id.
at 1246. Nell, his supervisor, was a Black male. Id. Jenkins was upset that Nell
denied his request for leave while granting the same request for a Black crane
operator, among other complaints. Id. at 1246–47. Jenkins scheduled an appointment
with the human resources department, but had a contentious meeting with Nell the
evening before after which Nell told Jenkins to go home and not work his shift. Id. at
1247. The next morning, Jenkins learned his HR appointment had been canceled and
the incident with Nell was under review. Id. Ultimately, Jenkins was terminated for
failing to carry out direct orders, insubordination, disrespect for a supervisor, and
threatening a supervisor. Id. Jenkins argued that Nell’s conduct was racially
motivated and provided three Black crane operators as potential comparators for the
fourth prong of McDonnell Douglas. The court determined that the crane operators
were not proper comparators because, for two of them, there was no evidence they
engaged in similar misconduct, and the circumstances surrounding the third
operator’s misconduct differed from those of the plaintiff. Id. at 1250. Because the
plaintiff failed to identify a comparator, summary judgment was appropriate. Id.
Here, Mr. Spilker does not identify anyone as a comparator nor provide any
evidence that another similarly situated employee was terminated for similar
conduct. Therefore, summary judgment should be entered in favor of Cleveland Clinic
on all of Mr. Spilker’s claims for discrimination. See Adewumi v. Wellstar Med. Grp.,
No. 24-12243, 2025 WL 831584, at *6 (11th Cir. Mar. 17, 2025) (insufficient
comparator evidence failed to give rise to presumption of discrimination and
summary judgment was appropriate); Lewis, 918 F.3d at 1225, 1227–28.
B. Retaliation
Regarding his retaliation claims, Mr. Spilker asserts that he was terminated
in retaliation for filing a charge of discrimination with the EEOC and for making
internal complaints about discrimination. ECF No. 81-1 ¶¶24-25. He states that he
filed charges of discrimination with the Equal Employment Opportunity Commission
(“EEOC”) and Florida Commission on Human Relations (“FCHR”) on February 12,
2025, and an amended charge on February 25, 2025. ECF No. 8 ¶32, ECF No. 86-1 at
3–5. He was terminated on February 14, 2025. ECF No. 94-12. The only specific
internal complaint Mr. Spilker references is an email he sent to Kelly Hancock on
March 21, 2024, approximately eleven months prior to his termination. ECF Nos. 81-
1 ¶¶14, 23; ECF No. 95-7 ¶15.
To establish a prima facie case for retaliation under Title VII, a plaintiff must
show (1) he engaged in protected activity, (2) he suffered an adverse employment
action, and (3) there is some causal connection between the two events.1 Thomas v.
Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007). If the plaintiff satisfies
his burden, then the employer must articulate a legitimate, non-retaliatory reason
for the adverse action. Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1135 (11th
Cir. 2020). The burden of causation may be met by showing close temporal proximity
between the statutorily protected activity and the adverse employment action, but
mere temporal proximity, without more, must be “very close.” Thomas, 506 F.3d at
1364 (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)). Further,
“[a] causal link between protected expression and the materially adverse action arises
where the defendant was aware of the protected expression and took materially
adverse action as a result.” Burks v. Bd. of Trustees of Fla. Agric. & Mech. Univ., 505
F. Supp. 3d 1273, 1282 (N.D. Fla. 2020); Addison v. Gwinnett Cnty., 917 F. Supp. 802,
810 N.D. Ga. 1995 (no evidence that employer knew of employee’s protected activity
when employee was terminated). “[W]hile a short lapse of time might raise an
1 Title VII and FCRA retaliation claims are analyzed under the same framework. See
Decoste v. City of Boynton Beach, 818 F. Supp. 3d 1360, 1372 (S.D. Fla. 2026) (citing
Johnson v. Miami-Dade Cnty., 948 F.3d 1318, 1325 (11th Cir. 2020)).
inference of discrimination, such an inference does not arise when intervening factors
are established” such as warnings about job performance or a plaintiff’s workplace
errors. Spence v. Panasonic Copier Co., 46 F. Supp. 2d 1340, 1348 (N.D. Ga. 1999).
See Hall v. AT&T Mobility Servs., LLC, No. 10-CV-150, 2011 WL 3425642 (M.D. Fla.
Aug. 5, 2011) (warning given about performance prior to protected activity “severs
the causal connection necessary for a prima facie case”) (quoting Spence, 46 F. Supp.
2d at 1348–49).
Mr. Spilker engaged in protected activity by filing a charge with the EEOC,
and he suffered an adverse employment action by being terminated. There is close
temporal proximity, as he was officially terminated two days after filing the EEOC
charge; however, this proximity is insufficient to establish a causal connection when
all the evidence is considered. Weeks prior to the termination, beginning January 13,
2025, Cleveland Clinic began investigating Mr. Spilker’s conduct in accessing EPIC
medical records, working off the clock, and misreporting who performed certain tests
on patients. ECF Nos. 64, 94-7, 94-8. On February 11, 2025, the day before Mr.
Spilker filed the charge, Cleveland Clinic closed its investigation and recommended
terminating Mr. Spilker’s employment. ECF No. 94-7 at 1. In its February 11
recommendation, Cleveland Clinic determined that Mr. Spilker violated workplace
policy by accessing medical records without a job-related reason to do so, performing
work prior to clocking in, and allowing others to access the glucometer using his
identification badge. ECF Nos. 94-7 at 1, 94-12 at 3. Mr. Spilker comes forth with no
evidence that Cleveland Clinic knew about his EEOC and FCHR charges when it
terminated his employment; indeed, it could not have known about the charge being
filed when Cleveland Clinic closed its investigation and recommended termination
before the charge was filed. Thus, Cleveland Clinic had already decided to fire Mr.
Spilker before he filed his charge, and the charge could have no bearing on that
decision.
Regarding Mr. Spilker’s March 2024 letter to Ms. Hancock, there is no evidence
that it constituted protected activity, and there is no causal connection between that
letter and Mr. Spilker’s termination. In the letter, Mr. Spilker said he was grateful
and honored to work for Cleveland Clinic, noted his achievements and qualifications
for obtaining new positions at Cleveland Clinic, and sought assistance in securing a
managerial position. ECF No. 94-5. The letter makes no mention of anything that
could be remotely construed as discriminatory; rather, it is a polite and flattering
letter seeking ways to move up the ranks in the workplace. Id.
Accordingly, Mr. Spilker failed to present evidence from which a reasonable
jury could find in his favor on his retaliation claims. Therefore, the Court should enter
summary judgment in favor of Cleveland Clinic. Thomas, 506 F.3d at 1364.
RECOMMENDATION
Accordingly, it is RECOMMENDED that Cleveland Clinic’s Motion for
Summary Judgment, ECF No. 98, be GRANTED and judgment entered in Cleveland
Clinic’s favor.
NOTICE OF RIGHT TO OBJECT
A party shall serve and file written objections, if any, to this Report and
Recommendation with the Donald M. Middlebrooks, United States District Court
Judge for the Southern District of Florida, within SEVEN (7) DAYS of being served
with a copy of this Report and Recommendation. Failure to timely file objections shall
constitute a waiver of a party's "right to challenge on appeal the district court’s order
based on unobjected-to factual and legal conclusions." 11th Cir. R. 3-1 (2016).
If parties do not intend to file objections, they shall file a notice
advising the District Court within FIVE DAYS of this Report and
Recommendation.
DONE and SUBMITTED in Chambers at West Palm Beach, Palm Beach
County, in the Southern District of Florida, this 17th day of August 2026.
BRUCE E.REINHART ——™
UNITED STATES MAGISTRATE JUDGE
22
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