Labor & Employment Law Daily Wrap Up, DISCHARGE—M.D. Fla.: Gay director who complained of CEO’s ‘flamboyant’ remark advances discrimination, retaliation claims, (Mar 18, 2025)

By Marjorie Johnson, J.D.

While the employer argued that he had been under investigation for weeks prior to his complaint about the “flamboyant” comment, “the evidence supporting this timeline is ambiguous at best.”

A former call center director who, eight days after complaining that the CEO had offended him as a gay man by referring him as “flamboyant,” was fired ostensibly due to employee complaints made against him before he passed his 90-day review and received an equity-based award, survived summary judgment on Title VII and Florida Human Rights Act claims of sex discrimination and retaliation. However, a federal court dismissed his hostile work environment claims since the single remark was neither subjectively nor objectively sufficiently severe or pervasive (Clark-Hilery v. Marketopia LLC, No. 8:23-cv-00284-AEP (M.D. Fla. Mar. 14, 2025)).

Employee complaints. On August 9, 2021, the marketing agency—owned by the CEO and his wife—hired the plaintiff as the director of call center services. Between September and October, three employees complained to the HR leader about his behavior. One claimed he remarked he would “suck the f*ck out [the employee’s] toes,” another claimed he remarked the two would be together if the employee were not married, and the third feared retaliation. It was disputed whether the HR leader (who left the company) reported these complaints to the owners.

Social media post. On December 3, a negative review was left on Glassdoor about the company which stated, “the call center manager is getting away with sexual harassment and covered by human resources under the nose of the CEO” and advised the company to “help promote your top performers instead of firing them because they didn't reciprocate the sexual harassment.” The review was attributed to one of the complainants who the director had fired the previous day. The wife-owner learned about the review that same day and tasked an HR specialist with investigating the matter.

Meeting to discuss. On December 15, the CEO’s wife and the HR rep met with the director to discuss the complaints. The wife then sent an email recapping the discussion and indicating that the director was “working hard to be sensitive with the members on the floor so that situations do not come up such as this.” She also stated that she was “looking forward” to his “continuing to do great work,” “am glad we were able to have a healthy and productive conversation,” and had “no doubt that [he] will work hard to ensure this type of feedback is not an issue.”

“Flamboyant” comment controversy. On January 18, 2022, the CEO conducted the director’s 90-day review and brought up the HR complaints, told him that he had “passed” his review, and gave him an equity-based award. He sent the CEO an email the next day detailing his grievances with certain topics that had been discussed, including the “false accusations.” He also complained the CEO referred to his clothing choices as “flamboyant” in an executive meeting in September 2021, which he found offensive as a gay man. The CEO responded by pasting a definition of the word from the dictionary and argued that he had used it only to mean “showy” and that it had nothing to do with “being gay, LGBTQ+, or anything else.”

The email chain quickly became heated, and the CEO’s wife and interim HR leader were added to the chain. The wife scheduled a meeting on January 21, to “have a productive and executive conversation,” after which the CEO and director exchanged a series of text messages indicating the two were in a better place.

Terminated. From January 24 thru January 27, the HR leader conducted recorded interviews with five employees who had complained about the director, purportedly at the direction the CEO’s wife. On January 27, the HR leader provided an investigative summary to the wife, and the director was terminated later that day.

Remark did not create HWE. While the court found that a triable issue existed as to whether the CEO’s use of the term “flamboyant” could be considered anti-homosexual hostility, the director’s own testimony indicated that he did not subjectively believe it to be sufficiently abusive to create an actionable hostile work environment. His assertion that he considered resigning because of the remark occurred months later and the day after the CEO gave him a review that displeased him. Moreover, the remark was not sufficiently severe or pervasive to create an objectively abusive environment as it only occurred once, was not physically threatening or humiliating, and did not affect his work performance.

Suspicious timing. Allowing his sex discrimination claim to advance to trial, the court found that, while he admittedly could not establish a prima facie case under the McDonnell Douglas framework, he presented sufficient evidence “from which a convincing mosaic of discrimination may be inferred,” including the suspicious timing. While the employer argued that he had been under investigation for weeks prior to his complaint about the CEO’s comment, and the HR leader’s January 27 investigative summary was an intervening act justifying his termination, “the evidence supporting this timeline is ambiguous at best.”

The company undisputedly began an investigation into the complaints against him on December 3, and the CEO’s wife and the HR specialist met with him about the matter on December 15. He was not fired then, and there was little evidence suggesting an investigation continued after this meeting. Indeed, the interim HR leader testified that the CEO’s wife came to her after the “flamboyant” comment controversy and requested that she interview a designated list of individuals since she had received an additional “anonymous complaint” about the director.

While the HR leader’s summary appeared to provide some new information about the director’s behavior, the substance and sources of the complaints mirrored much of which was already known by both owners prior to his passing of his 90-day review and equity-based award. Plus, every person the HR leader interviewed in late January was referenced in some manner in the wife’s recap email of the December 15th meeting. While it was possible that these witnesses were more forthcoming with the HR leader and the totality of the complaints was the motivating factor behind the decision to terminate the director, such a determination would be for a jury.

Dissimilar treatment. The court also acknowledged that while a sales employee who allegedly engaged in sexually harassing behavior but not terminated may not qualify as a true comparator under the McDonnell Douglas framework, the evidence of his behavior did “establish an inference of systematic treatment.” However, the court noted that evidence in his favor was “scant and narrowly establishes the minimum threshold required to survive summary judgment.”

Retaliation. His retaliation claims also advanced to trial. He engaged in protective activity when objected to the CEO’s use of the term “flamboyant” on January 19, and causation could be inferred since only eight days separated this activity and his termination. Moreover, the suspicious timeline and dissimilar treatment suggested pretext.

The case is No. 8:23-cv-00284-AEP.

Judge: Porcelli, A.

Attorneys: Gregory A. Owens (Owens Mediation) for Jose Clark-Hilery. Stephanie Leigh Adler-Paindiris (Jackson Lewis) for Marketopia LLC.

Companies: Marketopia LLC

Cases: SexDiscrimination Discrimination Discharge Retaliation FloridaNews