United States District Court, S.D. Florida
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
G. COOKE United States District Judge
Baldomero Guasch (“Plaintiff” or
“Guasch”) brings this action against Defendant
Carnival Corporation (“Defendant” or
“Carnival) for disability discrimination and
retaliation under the Florida Civil Rights Act of 1992
(“FCRA”), Chapter 760 Fla. Stat., and the Family
and Medical Leave Act (“FMLA”). 29 U.S.C. §
2615(a). Carnival filed a Motion for Summary Judgment
(“Motion”) (ECF No. 22), which Guasch has failed
to respond to despite multiple extensions of time (ECF Nos.
33, 38). For the reasons below, Carnival's Motion is
is an HIV-positive male. ECF No. 1-1. He worked as a
“Tele-Solutions Specialist” at Carnival from
October 16, 2000 through October 9, 2014, handling telephone
inquiries related to existing cruise bookings and travel
plans. Def.'s Concise Statement of Undisputed Material
Facts ¶¶ 1, 4, ECF No. 23 (“Def.'s
Facts”). Guasch reported to the Guest Solutions
Supervisor-Andres Borrero (“Borrero) at first, and then
Hilda Perez (“Perez”)-who in turn reported to the
Director of Service, Solutions, and Support, Mitzi White
(“White”). Id. ¶¶ 5 -6. Guasch
fell under White's supervisory authority starting in
early 2011. Id. ¶ 7. He worked from home during
his time under White, meeting White and Borrego in-person a
handful of times and never meeting Perez at all. Id.
maintains phone productivity standards for Solutions
Specialists like Guasch. Id. ¶¶ 8 -10.
Instances where a Solutions Specialist is unavailable to take
calls during a regular workday, such as for restroom breaks
or personal calls, are known as “AUX time.”
Id. ¶ 11. Excessive use of AUX time on multiple
days can result in unsatisfactory phone productivity ratings,
and disciplinary actions including termination. Id.
¶¶ 12 - 13. Guasch failed to meet Carnival's
phone productivity standards many times during his
employment, and was warned about his high AUX time at several
monthly and annual reviews. Id. ¶¶ 14 -
received multiple corrective counseling notices at the start
of 2014 about his excessive AUX time. Id.
¶¶ 16 - 18. This was the first time Guasch received
multiple corrective notices in a one-year period.
Id. ¶ 22. Guasch then received a written
reminder notification of his excessive AUX time in August
2014, followed by a final warning the following month.
Id. ¶¶ 19 - 20. Nonetheless, Guasch
exceeded his AUX time on three separate days in September
2014. Id. ¶ 21. After an in-person meeting with
White on October 9, 2014, Guasch was terminated. Id.
¶ 23 - 24.
was approved for intermittent FMLA leave at some point in
July 2014, though parties dispute exactly when and whether it
was a sufficient amount of leave. While the parties agree to
Guasch's history of requesting and being granted FMLA
leave throughout his time at Carnival, id.
¶¶ 29, 31, they disagree about whether Guasch's
supervisors knew of his HIV-positive medical condition.
Carnival asserts that its Human Resources Department does not
share an employee's medical information with his or her
supervisor. Id. The parties also dispute whether
Guasch's earlier AUX time entries were properly adjusted
to account for computer glitches and FMLA leaves.
judgment “shall be granted if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law.” Allen v. Tyson Foods, Inc., 121 F.3d 642
(11th Cir. 1997) (internal quotation marks omitted); see
also Fed. R. Civ. P. 56. In making this assessment, a
court “must view all the evidence and all factual
inferences reasonably drawn from the evidence in the light
most favorable to the nonmoving party, ” Stewart v.
Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278,
1285 (11th Cir. 1997), and “must resolve all reasonable
doubts about the facts in favor of the non-movant.”
United of Omaha Life Ins. Co. v. Sun Life Ins. Co. of
Am., 894 F.2d 1555, 1558 (11th Cir. 1990).
its very terms, this standard provides that the mere
existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 -
48 (1986) (emphasis in original). “As to materiality,
the substantive law will identify which facts are material.
Only disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry
of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.” Id. at 248.
“For factual issues to be considered genuine, they must
have a real basis in the record . . . mere conclusions and
unsupported factual allegations are legally insufficient to
defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citations
in an unopposed motion, the moving party still bears the
burden of identifying [the evidence] which it believes
demonstrates the absence of a genuine issue of material
fact.” Mann v. Taser Int'l, Inc., 588 F.3d
1291, 1303 (11th Cir. 2009) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). Further, the
“district court need not sua sponte review all
of the evidentiary materials on file at the time the motion
is granted, but must ensure that the motion itself is
supported by evidentiary materials.” United States
v. 5800 SW 74th Ave., 363 F.3d 1099, 1101 (11th Cir.
2004). After review of the evidence, summary judgment is
proper “against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial.” Celotex, 477
U.S. at 322. In those cases, there is no genuine issue of
material fact “since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Id. at 323.
establish a prima facie case of FCRA discrimination,
a plaintiff must show that “(1) he has a disability;
(2) he is a qualified individual; and (3) he was subjected to
unlawful discrimination as the result of his
disability.” Gordon v. E.L. Hamm & Assocs.,
Inc.,100 F.3d 907, 910 (11th Cir. 1996); see also
Dulaney v. Miami-Dade Cty., 481 F. App'x 486, 489
n.2 (11th Cir. 2012) (noting how FCRA claims “are
analyzed using the same framework as [Americans with
Disabilities Act] claims”). “To succeed on a
claim of disability discrimination, the plaintiff must show
the decision-maker of the adverse employment action was aware
of the disability.” Moreira v. Am. Airlines,
Inc., 157 F.Supp.3d 1208, 1215 (S.D. Fla. 2016).
“Further, neither statements revealing a general health
problem nor a general ...