United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE, United States District Judge
THE COURT is Defendant's Motion for Summary
Judgment (Dkt. 28), Plaintiffs response in opposition, (Dkt.
41), and Defendant's reply. (Dkt. 44). Upon
consideration, Defendant's motion is
GRANTED on Plaintiffs FMLA retaliation, ADA,
and FCRA claims, and DENIED on his FMLA
Plaintiff worked in sales for Defendant. (Dkt. 28 at p. 4;
Dkt. 41 at p. 1). His performance was evaluated largely on
his ability to meet quotas for new customer interactions,
potential sales, and closed sales. (Dkt. 28 at pp. 5-6). In
Defendant's business, the amount of time between the
first contact with a prospective customer and the time of
closing a sale can range from a week on the short end to
several months on the long end. (Galloway Deposition, Dkt.
39-13 at 28:13-22).
December 2013 to July 2014, Reginald Campbell was Plaintiffs
direct supervisor. (Campbell Declaration, Dkt. 28-3).
Beginning in May 2014, Plaintiffs performance began to
decline, including taking several sick days and failing to
make any progress towards his quotas. (Dkt. 41 at p. 2).
Plaintiff testified that he advised Campbell around this time
that he was dealing with anxiety and drinking a lot because
of personal problems at home. (Plaintiff Deposition, Dkt.
29-1 at 147-148). In July 2014, Dina Galloway became
Plaintiffs supervisor. (Galloway Declaration, Dkt. 28-2).
Plaintiff testified that he shared less information about his
issues with Galloway than he had with Campbell, but informed
Galloway that he was having "a ton of anxiety"
about his personal, issues at home that affected his ability
to focus at work. (Plaintiff Deposition, Dkt. 29-1 at 151
August 28, 2014, Galloway informed Campbell that she wished
to issue a written warning to Plaintiff, and Campbell agreed
with Galloway's decision. (Galloway Declaration, Dkt.
28-2; Campbell Declaration, 28-3). Campbell and Galloway
issued a Written Warning ("Initial Warning") to
Plaintiff on August 29, 2014. (Dkt. 39-2). The Initial
Warning set performance standards that Plaintiff was expected
to meet to demonstrate improvement. (Dkt. 39-2). At no time
during the discussion about the Initial Warning did Plaintiff
indicate that he was suffering from depression, anxiety, or
issues with alcohol, or indicate that he had any problems
other than going through the, "saddest experience"
of his life at home. (Galloway Declaration, Dkt. 28-2;
Campbell Declaration, Dkt. 28-3; Plaintiff Deposition, Dkt.
29-1 at 163-164). Plaintiff testified that he does not
believe Defendant issued the Initial Warning because of any
disability he had. (Dkt. 29-1 at 156-157).
the Initial Warning, Plaintiff was absent from work the next
two business days and told Galloway he was at the hospital
because he was ill. (Dkt. 39-8). Plaintiff was then out of
the office for two and a half hours during lunch on September
5, explaining to Galloway that he was having car trouble.
(Dkt. 39-8). He missed a conference call on September 8.
(Dkt. 39-8). He also missed mandatory training on September
9, again explaining to Galloway that he had car trouble.
(Dkt. 39- 8). On September 10, he was absent from work, and
Galloway could not reach him. (Dkt. 39-8).
September 9, 2014, Galloway made the decision to issue a
Final Written Warning to Plaintiff based on his conduct
following the Initial Warning, (Galloway Declaration, 28-2),
with his absence from mandatory training being the final
"nail, so to speak." (Galloway Deposition, Dkt.
39-13 at 81:10-15). Galloway informed Campbell and
Defendant's Human Resources Department about her decision
by September 10, 2014. (Hopkins Declaration, Dkt. 28-1:
Galloway Declaration, 28-2; Campbell Declaration,
28-3).On September 11, 2014, Plaintiff
submitted an electronic application for FMLA leave, and began
his leave that day. (Dkt. 39-4; 39-8).
returned to work on November 3, 2014. (Dkt. 29-1 at 174). On
the morning he returned, ' Galloway issued the Final
Warning to him. (Dkt. 29-9). Galloway informed Plaintiff that
"we essentially have to pick back up where we left off
before you went out on leave .. . and being out on leave does
not pause or halt anything from a performance standpoint. So
due to this, we're going to issue the Final Written
Warning." (Dkt, 39-13, at 62:2-6).
Plaintiffs overall sales quotas remained the same, the Final
Warning required him to meet 100% of his sales goals each
fiscal week stalling the next week, rather than each fiscal
month as the Initial Warning had required. Compare
(Dkt. 39-2) with (Dkt. 39-9). Plaintiff resigned
after, receiving the Final Warning. (Dkt. 28-2). He claims
that he was subjected to discrimination under the Americans
with Disabilities Act ("ADA") and the Florida Civil
Rights Act ("FCRA"), as well as retaliation and
interference under the Family Medical Leave Act
("FMLA"). (Dkt. 20).
Summary judgment is appropriate where "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). "A genuine factual dispute exists only if a
reasonable fact-finder 'could find by a preponderance of
the evidence that the [non-movanfj is entitled to a
verdict.'" Kernel Records Oy v. Mosley, 694
F.3d 1294, 1300 (11th, Cir. 2012) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact
is material if it may affect the outcome of the suit under
governing law. Allen v. Tyson Foods, Inc., 121 F.3d
642, 646 (11th Cir. 1997). All facts are viewed and all
reasonable inferences are drawn in the light most favorable
to the non-moving party. See Scott v. Harris, 550
U.S. 372, 380 (2007).
moving party bears the initial burden of showing that there
are no genuine disputes of material fact. Hickson Corp.
v. Northern Crossarm Co., Inc., 351 F.3d 1256, 1260
(11th Cir. 2004) (citing Celolex Corp. v. Catrett,
477 U.S. 317, 323 (1986)). Once the moving party demonstrates
the absence of a genuine issue of material fact, the
nonmoving party must go beyond the pleadings through the use
of affidavits, depositions, answers to interrogatories, and
admissions on file to designate facts showing a genuine issue
for trial. See Celotex Corp., 477 U.S. at 324. The
nonmoving party's evidence "cannot consist of
conclusory allegations or legal conclusions."
Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir.
1991). The Court will not weigh the evidence or make findings
of fact. Morrison v. Amway Corp., 323 F.3d 920, 924
(11th Cir. 2003). Rather, the Court's role is limited to
deciding whether there is sufficient evidence upon which a
reasonable juror could find for the non-moving party. See
ADA and FCRA Discrimination
III and IV of Plaintiff s Amended Complaint assert claims
under the ADA and FCRA, respectively, based on
Defendant's alleged discrimination against Plaintiffs
disability of anxiety and depression "by terminating
Plaintiffs employment with Defendant." (Dkt. 20 at
¶¶ 46, 56), Defendant moves for summary judgment on
the ground that Plaintiff cannot establish a prima
facie case of discrimination because he was not
qualified to perform the essential functions of his position,
he has no evidence that Defendant knew of his disability, and
he voluntarily resigned after receiving the Final Warning. In
a brief response, Plaintiff argues that he has presented
sufficient evidence to create a genuine dispute of material
fact on these issues.
ADA provides that no covered employer "shall
discriminate against a qualified ' individual on the
basis of disability in regard to . .. discharge of
employees.'" Knowles v. Sheriff, 460
F.App'x 833, 834 (11th Cir. 2012) (per curiam) (quoting
42 U.S.C. § 12112(a)). ADA discrimination claims are
analyzed under the McDonnell Douglas burden-shifting
framework. Id. at 835 (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973)). Claims under the
FRCA use the same framework as the ADA and need not be
addressed separately. Id. A plaintiff establishes a
prima facie case of discrimination by showing: (1)
he has a disability; (2) he is qualified to perform the
essential functions of the position with or without
reasonable accommodation; and (3) his employer discriminated
against him because of his disability. Id.
axiomatic that in order for there to be a causal relationship
between the employer's action and the disability, the
employer must have actual knowledge of the disability.
See Cordoba v. Dillard's, Inc., 419 F.M 1169,
1186 (11th Cir. 2005) ("[I]t is evident that an employee
cannot be fired 'because of a disability unless the
decisionmaker has actual knowledge of the
disability."). "Vague or conclusory statements
revealing an unspecified incapacity are not sufficient to put
an employer on notice of its obligations under the ADA."
Morisky v. Broward Cnty., 80 F.3d 445, 448 (11th
Cir. 1996) (per curiam) (adopting lower court's reasoning
that a prospective employee's ' statements that
"she could not read and had taken special education
courses" were insufficient to put the employer "on
notice of her developmental disorder"); see also
O'Keefe v. Niagara Mohawk Power Corp., 714 F.Supp.
622, 625-26 (N.D.N.Y. 1989) (cited in Morisky, 80
F.3d at 448, for the proposition that an employer did not
have actual knowledge of an employee's alcoholism
disability, even though the employee's supervisors knew
that he had multiple DWI convictions and had to attend
court-mandated alcohol rehabilitation programs).
the causation analysis explicated by the Eleventh Circuit,
the employer's agent who makes the termination decision
must have actual knowledge of the employee's disability
in order for ' the employee to establish that the
disability was a causal factor in the employer's action.
Cordoba, 419 F.3d at 1175. Even when the
employee's direct supervisor has knowledge of information
indicating that an employee suffers from a disability, that
information will not be imputed to the employer when the
supervisor is not the one making the termination decision.
Id. at 1174 (noting that a direct supervisor's
knowledge that the plaintiff was diagnosed with a congenital
heart disorder and had to occasionally leave work when
suffering from an episode is not imputed to another
supervisor who made the termination decision).
concedes for purposes of summary judgment that Plaintiffs
statements that he ' suffered from anxiety, depression,
and alcohol dependency must be accepted as true. Defendant
instead argues that "Plaintiff has no evidence that
anyone was aware that he suffered from a disability, much
less that his purported disabilities were the but-for cause
of the adverse employment actions.” (Dkt. 28 at p. 16).
Defendant's argument is well-taken under the established
precedent that vague statements of physical or mental
impairment are not sufficient to establish an employer's
actual knowledge of a disability. See Cordoba, 419
F.3d at 1186; Morisky, 80 F.3d at 448.
undisputed that by September 10, 2014 at the latest, Galloway
made the decision to issue the Final Warning.
Accordingly, Galloway's knowledge of Plaintiff s
condition on September 10, 2014 determines whether his
alleged disabilities of anxiety and depression were a factor
in her decision.
the evidence in the light most favorable to Plaintiff, it
indicates that by September 10, 2014, he had informed
Galloway that he was dealing with "a ton of
anxiety" because of his personal issues at home that
made it difficult for him to perform his duties at work.
(Dkt. 41 at p. 2). He admits that he was not as forthcoming
with Galloway about his personal problems, including issues
with alcohol, as he had been with his former supervisor,
Campbell. Campbell was not, however, the decisionmaker who
issued the Final Warning and therefore any information he
knew about Plaintiffs condition is immaterial. (Galloway
Declaration, Dkt. 28-2; Campbell Declaration, Dkt 28-3).
statements to Galloway about his anxiety relating to his
problems at home are insufficient to establish knowledge on
her part of an alleged disability when she decided to issue
the Final Warning. Just as "it does not always follow
that someone who is illiterate is necessarily suffering from
a physical or mental impairment, " it does not follow
that it follows from Plaintiffs anxiety about his home life
that he was suffering from a mental disability. See
Morisky, 80 F.3d at 448. Plaintiffs evidence, therefore,
fails to create a material issue of fact as to whether his
claimed disability had any role in Galloway's decision,
and Defendant is therefore entitled to summary judgment on
Counts III and IV.
are two claims under the FMLA: interference and retaliation.
29 U.S.C. § 2615(a); Hurlbert v. St. Mary's
Health Care Sys.,439 F.3d 1286, 1293 (11th Cir. 2006).
A retaliation claim asserts that an employer discriminated
against an employee for engaging in FMLA protected activity,
while an interference claim asserts that an employer
interfered with an employee's exercise of ...