This cause comes before the Court pursuant to Defendants' Motion for Summary Judgment (Doc. # 40), which was filed on August 31, 2011. Pro se Plaintiff Justin Smiley filed successive "Motions to Dismiss Summary Judgment," which this Court construes as Smiley's Response in Opposition to the Motion for Summary Judgment. (Doc. ## 45, 47, 48).
For the reasons that follow, the Court grants Defendants' Motion for Summary Judgment.
Defendants are nursing homes for the elderly. (McClory Aff. Doc. # 40-15 at ¶ 3). Defendants became acquainted with Smiley through the Abilities of Florida non-profit group that assists individuals with disabilities in obtaining employment. Id. at ¶ 4. Even though Smiley had no relevant work experience, Defendants hired Smiley and paid for his training so that he could earn his Certified Nursing Assistant (CNA) license and certificate. Id. Smiley worked for Defendants from March 12, 2007, until April 22, 2008, as a CNA. Id. at ¶¶ 5, 15.
Smiley worked under the supervision of Sharon Truesdale, the Director of Nursing. Id. at ¶ 3. On November 9, 2007, Smiley failed to answer a patient call light. (Smiley Dep. Doc. # 40-16 at 80-81). Instead, he was sitting in the residents' lounge watching television. (Smiley Dep. Doc. # 40-16 at 86; Doc. # 40-3). Rather than disciplining Smiley, Defendants issued Smiley a "teachable moment" slip in his file regarding "answering call light promptly; respect and dignity issues related to resident care." (Doc. # 40-3). Truesdale counseled Smiley regarding the "proper way to manage a situation" but did not discipline him. Id.
Smiley's performance did not improve. Smiley was tardy on 23 occasions between September 2, 2007, and December 8, 2007. (McClory Aff. Doc. # 40-15 at ¶ 7). Smiley agrees that he was chronically tardy but testified that being tardy at least 23 times in three months was "nothing" and even "lovely." (Smiley Dep. Doc. # 40-16 at 76, 77). In addition, Smiley admits that he did not come to work on September 10, 2007, September 11, 2007, October 12, 2007, November 19, 2007, and November 21, 2007. Id. at 83-84. Smiley acknowledges that at least one of the aforementioned absences was a "no-call/no-show" absence. Id. at 82. Smiley was issued a disciplinary action report on November 25, 2007, commenting on his "excessive tardiness; absenteeism" and patient care issues. (Doc. # 40-4).
In December 2007, Smiley sustained back injuries in a car accident. (Smiley Dep. Doc. # 40-16 at 88). After a month-long leave of absence, Smiley returned to work on January 22, 2008, with physical restrictions as outlined by Hess Spinal and Medical Centers. Id. at 103; Doc. # 40-6.
On March 4, 2008, Smiley filed a Charge of Discrimination with the EEOC. (Smiley Dep. Doc. # 40-16 at 69; Doc. # 40-5 at 2). In his Charge, Smiley alleged that Defendants discriminated against him on the basis of his sex, race, and disability as follows:
My employer is aware of my disabilities and the accommodations required due to the fact that Abilities of Pinellas helped me obtain employment here. I have been treated differently in the terms and conditions of my employment. I am orally disciplined by Sharon, the [Director of Nursing], for being late after calling and notifying the job that I would be late. Other employees are not disciplined for being tardy or absent. After having to leave work with permission I was again disciplined.*fn1 (Doc. # 40-5). Smiley testified that no one in management made any comments to him about his Charge of Discrimination. (Smiley Dep. Doc. # 40-16 at 88). On March 11, 2008, shortly after filing his Charge of Discrimination, Smiley reported to Truesdale that he was injured while moving a patient, and Truesdale directed Smiley to create an incident report. (Id. at 106; Doc. # 40-7). Defendants investigated Smiley's incident report and paid him a $6,250.00 settlement for his alleged back injuries. (Doc. # 40-9 "Settlement Agreement for Release and Waiver of Worker's Compensation Claims Under § 440.20(11)(c)(d) and (e), F.S., (2003)").*fn2
On April 8, 2008, Smiley sought non-FMLA leave until April 14, 2008, due to injuries stemming from his December 2007 car accident. (Doc. # 40-11). Defendants approved the leave request, which was supported by a note from Hess Spinal and Medical Center. (Smiley Dep. 118-119; Doc. 40-11 at 2).
On April 10, 2008, Smiley submitted another note from Hess indicating that he needed leave until April 21, 2008, and Defendants approved the request for leave. (Doc. # 40-12).
McClory, Defendants' Human Resources Manager, filed an affidavit stating that Smiley did not communicate with Defendants during the April 2008 leave periods. (McClory Aff. Doc. # 40-15 at ¶ 14). According to Defendants, Smiley did not request additional leave on or before his scheduled shift of April 22, 2008. Id. "[Smiley] did not show up for work on April 22 [and] [h]e did not call in the evening before or that morning." Id. at ¶ 15.
Smiley offered conflicting testimony regarding whether he called in before his scheduled shift. During his August 13, 2009, deposition taken in conjunction with his Worker's Compensation case, Smiley testified that he called in on April 21, 2008, indicating that he would not be at work on April 22, 2008, because he had to take his girlfriend to the hospital. (Doc. # 40-18 at 112-113). However, during his June 13, 2011, deposition Smiley testifed that he called in to state that he had "low back pain" and would not be able to come into work. (Smiley Dep. Doc. # 40-16 at 124). During the same deposition, Smiley remarked: "'Cause I called that night [April 21, 2008]-- Oh, did I call that night? No. I called that day or something like that." (Smiley Dep. Doc. # 40-16 at 129). Upon further questioning, Smiley could not remember when he called in, or if he called in at all. Id. at 129-130.*fn3
On April 22, 2008, Smiley "was called by Lexington to come in and report to the Administrator's office." (McClory Aff. Doc. # 40-15 at ¶ 15). On April 22, 2008, when Smiley arrived at Defendants' facility, he "diverted" to the HR office and filled out a form requesting leave from April 23, 2008, to May 20, 2008. (Id. at ¶ 15; Doc. # 40-13). On this form he indicated, "stress related to job. doctor recommends time off to cope with working conditions. Seeing psychologist." Id.*fn4
This time, rather than approving the request for more time off, Defendants terminated Smiley. Defendants considered Smiley's absence on April 22, 2008, to be a second "no- call/no- show." (McClory Aff. Doc. # 40-15 at ¶ 15; Smiley Dep. Doc. # 40-16 at 129). It is not contested that Defendants' employee handbook applicable to Smiley indicated that two no-call/no- shows within a twelve-month period was punishable by termination. (Doc. # 40-14 at 6). Specifically, the handbook states, "The Center will consider that the employee has voluntarily terminated their employment when he/she fails to show for two (2) scheduled workdays in a 12 month period." Id.
On August 12, 2010, Smiley filed a pro se discrimination and retaliation Complaint against Defendants, with the assistance of an unknown attorney, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), 42 U.S.C. § 1981, and the Florida Civil Rights Act of 1992, Florida Statute Section 760, et seq. (Doc. # 1). In Count One of the Complaint, Smiley alleges that Defendants subjected him to disparate treatment on the basis of his race, African American, and sex and also alleges that he was terminated due to his race and sex. In Count Two, Smiley alleges that Defendants retaliated against him for objecting to unlawful discrimination and that Defendants terminated his employment in retaliation for filing a Charge of Discrimination.
Defendants move for summary judgment as to each Complaint count. Smiley filed successive "Motions to Dismiss Summary Judgment," which this Court construes as Smiley's Response in Opposition to the Motion for Summary Judgment. (Doc. ## 45, 47, 48). Although Smiley's "Response" to the Motion is ...