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Leme v. Southern Baptist Hospital of Florida, Inc.

United States District Court, M.D. Florida, Jacksonville Division

March 29, 2017

KRISTIANO LEME, Plaintiff,
v.
SOUTHERN BAPTIST HOSPITAL OF FLORIDA, INC., Defendant.

          ORDER

          MARCIA MORALES HOWARD United States District Judge

         THIS CAUSE is before the Court on Defendant's Motion for Summary Judgment and Memorandum of Law (Doc. 19; Motion), filed on June 1, 2016. Plaintiff filed a response to the Motion on June 21, 2016, (Doc. 22; Response), and annexed two affidavits, including the Affidavit of Tina Leme (Leme Aff.) as Exhibit A. Defendant filed an objection to certain portions of Tina Leme's Affidavit on September 20, 2016, see Objection to Portions of Tina Leme's Affidavit Filed by Plaintiff in Response to Defendant's Motion for Summary Judgment, Motion in Limine, and Memorandum of Law in Support (Doc. 25; Objection), and Plaintiff filed a response to the Objection on October 7, 2016, see Plaintiff's Response to Baptist's Challenge of Tina Leme's Affidavit (Doc. 26; Objection Response). Accordingly, this matter is ripe for review.

         I. Background[1]

         Plaintiff Kristiano Leme (Leme or Plaintiff) brings this case against Southern Baptist Hospital of Florida, Inc. (Baptist or Defendant) alleging disability/handicap, and perceived disability/handicap, discrimination based on his allegedly wrongful termination in violation of the Americans with Disabilities Act (ADA) of 1990 (ADA), 104 Stat. 327, as amended, 42 U.S.C. § 12101 et seq., [2] and the Florida Civil Rights Act (FCRA), Fla. Stat. § 760.01, et. seq.. See generally Amended Complaint and Demand for Jury Trial (Doc. 2; Complaint).

         A. Leme's Disability

         Leme has a degenerative visual disability known as optic nerve atrophy “that is neither curable nor correctable.” See Motion, Ex. A: Deposition of Kristiano Leme (Leme Dep.) at 10-11; Complaint ¶¶ 7, 14. As of November 18, 2009, Leme had a visual acuity of 20/40 in his right eye and 20/50 in his left eye, which means that with the aid of a corrective lens, Leme could see from 20 feet away what someone with perfect vision could see from 40 or 50 feet away, respectively. See Leme Dep., Ex. 3: November 18, 2009 Letter from Dr. Alejandro M. Tirado (Nov. 18, 2009 Letter); Motion, Ex. C: Deposition of Paul W. Brazis, M.D. (Brazis Dep.) at 12. Just four years later, according to a report dated November 27, 2013, his visual acuity dropped to 20/120 in both eyes. See Motion, Ex. B: Deposition of Dr. Katelyn W. Jordan, O.D. (Jordan Dep.) at 16, Ex 2: Brooks Rehabilitation Form, Nov. 27, 2013 (Nov. 27, 2013 Exam). Leme testified that his disability makes it difficult to see colors, regardless of the degree of contrast. See Leme Dep. at 246.[3] According to Dr. Katelyn W. Jordan (Dr. Jordan), an optometrist specializing in low vision, Leme met the Social Security Administration's definition of legal blindness. See Jordan Dep. at 18-19.[4]

         B. Leme's Introduction to Baptist

         Leme began his employment with Baptist on November 30, 2009. See Leme Dep. at 12; Complaint ¶ 6. Initially, he worked on a part-time basis in the Medical Records Department. See Leme Dep. at 12. In February or March 2010, Baptist transferred Leme to a full-time position in the Central Supply (Materials Distribution) Department as a materials handler.[5] Id. at 29-30, 35.

         Through his work in Materials Distribution, Leme built a relationship with Yvonne Carver (Carver), a regular customer and the supervisor and manager of the Anesthesiology Department.[6] Id. at 125; Carver Aff. ¶ 2. In July 2012, Carver mentioned to Leme that the Anesthesiology Department had a vacant anesthesia technician (Tech) position and encouraged him to apply. See Leme Dep. at 125, 152. Although Baptist hired a different candidate to fill that position, Carver informed him of another vacant Tech position in August 2013. Id. at 125-26, Ex. 21: Manage Applicant: Kristiano Leme (Application History). With Carver's encouragement, Leme reviewed the job description that Baptist posted on its website. Id. at 113, Ex. 19: Job Summary. According to the post, Baptist sought an “anesthesia tech for Surgical Services” whose duties would include: “assessing, planning and/or deliver[ing] anesthesia equipment and supplies, ” “cleaning/car[ing] and stocking of anesthesia carts, supplies and equipment, ” and most importantly, “assisting the anesthesiologist.” See Job Summary. Indeed, a Tech's primary function was to “assist the anesthesiologist in any way necessary with surgical procedures” and provide “an extra set of hands, eyes and ears” so that the anesthesiologist could focus on the patient. See Motion, Ex. M: Affidavit of Clifford Pierce (Pierce Aff.) ¶ 3; Carver Aff. ¶ 2; Leme Dep. at 124, 140. Generally, Baptist assigned only one Tech to each surgery. See Motion, Ex. G: Deposition of Clifford Pierce (Pierce Dep.) at 21.

         Leme applied for the Tech position, and in September 2013, underwent several rounds of interviews with various supervisors, including Carver and Clifford Pierce (Pierce), the Lead Tech responsible for training all new Techs. See Leme Dep. at 153; Carver Aff. ¶ 9; Pierce Aff. ¶ 2. According to Leme, they did not discuss his qualifications, physical abilities, or job duties at the interview; instead, they discussed the reasons Leme applied for the position, training periods, and scheduling issues. See Leme Dep. at 154. Shortly thereafter, Baptist transferred Leme to the Tech position and restarted his 90 day probationary period.[7] Id. at 183.

         C. Leme's Training

         Baptist divided Leme's Tech training into two phases. See Carver Aff. ¶10. During the initial phase, Steve Parks trained Leme on certain basic functions of a Tech at the Baptist South location. These basic functions consisted of non-clinical duties that did not involve patient care, including room turnover, restocking carts and medication, bringing blankets to patients, cleaning and preparing the operating rooms between surgical cases, connecting blood-pressure cuffs, and transporting patients to surgery. See Pierce Dep. at 11-12; Pierce Aff. ¶ 4; Carver Dep. at 11; Leme Dep. at 74, 112-17. After spending four weeks at Baptist South, Leme began the second phase of his training at the Baptist Downtown location.[8] See Leme Dep. at 170-73. There, Pierce attempted to train Leme on the clinical functions involving direct patient care. Id. at 88, 142-43, 170-71; Pierce Aff. ¶ 2.

         Pierce tried to teach Leme how to prepare and assist anesthesiologists with placing an arterial line (A-line)-“a catheter placed in an artery in the patient's wrist that monitors the patient's blood pressure, blood oxygen levels, heart rate, and body temperature in real time during surgery.” See Pierce Aff. ¶¶ 5, 6. The purpose of A-line preparation is to aseptically clear air bubbles from the line. Id. at ¶¶ 6, 8. Failing to clear bubbles from the line “pose[s] a significant risk of harm to the patient, ” and can cause “a massive embolus leading to stroke or death." Id. at ¶ 8; Leme Dep. at 166.[9] According to Pierce, this critical task was an "essential daily function" of the Tech position. See Pierce Aff. ¶ 5. Carver agreed that “placing and connecting [A-lines] while using proper aseptic technique to not contaminate the line” was an essential function of the Tech position, based on her “creation of the [Tech] position, ” “knowledge and supervision of the position, ” “performance of the duties, ” and “four decades of working with the [a]nesthesiologists.” See Carver Aff. ¶ 5. According to Dr. Velez, Techs “serve no purpose in the operating room” if they cannot provide “critical assistance with the placement of [Alines].” See Motion, Ex. O: Affidavit of Samuel Velez, M.D. (Velez Aff.) ¶ 4. When Techs fail to clear all bubbles, the anesthesiologist either has to instruct the Tech or "complete the process” himself. See Pierce Dep. at 52-53; Response, Ex. B: Affidavit of Lewis Crawford (Crawford Aff.) ¶ 8. Indeed, Crawford, a former co-worker of Leme, testified that he did not feel comfortable as a Tech until he mastered A-line preparation. See Motion, Ex D: Deposition of Lewis Page Crawford (Crawford Dep.) at 23. He described A-line connection as a regular function of the Tech position, and indicated that he prepared "a whole lot" of A-lines. Id. at 21, 29. Leme testified that when he began the clinical portion of his training, he did not think A-line preparation would be an essential function of the Tech position based on his training at Baptist South and the Job Summary. See Leme Dep. at 112-13, 117-18. He also testified that he had heard of a Tech who did not connect A-lines, although he did not know why. Id. at 118-19. Nevertheless, he recognized that his training at Baptist downtown consisted almost entirely of A-line preparation and draining fluid warmers.[10] Id. at 117-18, 142-43, 164, 172-73.

         A-line preparation consists of three stages. See Crawford Aff. ¶ 7. First, Techs prepare A-lines outside the operating room, see id., by “setting up and connecting the transducer[11] to the IV line (a thin clear tube approximately four (4) millimeters in diameter) that is connected to an IV bag and pressure bag.” See Pierce Aff. ¶ 6. The sterile ends and ports of the line have protective caps to protect against contamination. Id., Ex. 1: Arterial Lines. Without contaminating the line, the Tech removes a protective cap and flushes the line with clear fluid to eliminate all air, which is “visible as small pockets of air or tiny bubbles in clear fluid in clear tubing.” See Pierce Aff. ¶ 6. As the Tech flushes the line, he “must constantly look through the tubing to make sure that there are no air bubbles.” Id. Once all air is removed, the Tech places the protective cap back on the tip to keep the end sterile and prevent air from re-entering. Id. The anesthesiologists remain completely sterile during the procedure and rely on the Tech to touch unsterile items, such as the exterior of the cap. Id. at ¶ 12.

         In the second stage, the Tech brings the line into the operating room and the anesthesiologist inserts a catheter into an artery in the patient's wrist. Id. at ¶ 7. The Tech then removes the protective cap, and connects the sterile end of the line to the catheter, usually by using hemostat clamps to twist them into place. Id. According to Pierce, “[t]his requires good visual acuity and hand-eye coordination to prevent touching a sterile end to a non-sterile surface.” Id. The Tech next places a bandage on the patient's wrist to hold the catheter in place. Id. at ¶ 8. To ensure air from the catheter does not escape into the A-line, the Tech “aspirate[s] and flush[es] the air from the lines again in a very specific way.”[12] Id. When the air is removed, blood and fluid flow into the syringe. Id. According to Crawford, the bubbles are easier to see during this stage because “there is a higher contrast between blood and the clear bubbles.” See Crawford Aff. ¶ 7. Then, the Tech flushes the line “quickly and thoroughly so no air goes into the patient. Accordingly, the [Tech] must watch the line carefully during this process.” Id. Finally, the Tech flushes the entire line again. Id.

         Leme admitted that he had trouble connecting A-lines initially. See Leme Dep. at 142. For example, when taping an IV line onto a patient's wrist, Leme sprayed the anesthesiologist, Dr. J. Wesley Fleming (Dr. Fleming) with adhesive instead of the patient. See Motion, Ex. P: Affidavit of J. Wesley Fleming (Fleming Aff.) ¶ 5. Although Leme did not recall having an issue with Dr. Fleming, he did not deny that this incident occurred, see Leme Dep. at 200-01, 211. On another occasion, Pierce observed Leme attempt to connect the sterile end of an A-line to a catheter, but miss and touch the sterile portion to his non-sterile finger. See Pierce Dep. at 13-21. Although Leme testified that Pierce did not tell Leme that “he was concerned about [Leme] not being able to connect [an] A-line without contaminating it, ” Leme did not deny that this incident occurred, see Leme Dep. at 144-45, and stated that Pierce commented on Leme's vision on a daily basis, id. at 232.

         Despite having difficulty connecting A-lines initially, Leme found accommodations that he believed enabled him to prepare the A-lines successfully. Id. at 142, 144, 146, 165, 204. Crawford testified that he “worked with [Leme] several times directly, doing Alines and other procedures, ” and that he “was satisfied that [Leme] had the ability to perform all necessary duties as a Baptist Anesthesia Technician [sic].” See Crawford Aff. ¶ 5. As one accommodation, to improve his ability to see air bubbles in the lines, Leme held the line up to the light. See Leme Dep. at 165. In this regard, when asked if he believed he had "any trouble seeing the bubbles, " Leme responded, "No. … [T]he bubbles, if you hold the line and look, you can see, given the light catching in a bubble, it is basically a sphere; so when light travels through, there's a contrast between the fluid and the bubble." Id. Additionally, in order to connect the A-line to the catheter, Leme felt the tips. Id. at 145-46. He testified that in order to see where to make the connection, he held the line about two and a half feet from his face. Id. at 204.

         Baptist expressed concerns that Leme's accommodations jeopardized patient safety. As to Leme's first accommodation, Baptist provided testimony that once the line was connected to the catheter inside the patient's artery and bandaged to the patient's wrist, Leme could not hold it up, see Pierce Aff. ¶ 8, because “grabbing” at the line and “moving it in and out” of the patients put them at risk of a hematoma[13] and could have required re-starting the process, see Pierce Dep. at 21. Leme did not dispute that holding the line was only feasible during the first stage of A-line preparation, before the line was connected to the patient. See Leme Dep. at 204-05. Leme testified:

If the cords are long, I could -- prior to connecting the A-line is when you would be checking for the bubbles, so yeah, I could hold the thing closer. I could hold it to the light to see the air bubbles, at which point I would have flushed -- flushed the lines prior to connecting it.

Id. (emphasis supplied). Baptist also expressed concerns that Leme's second accommodation, touching the tips, jeopardized patient safety. Once the protective cap is removed, the sterile connector is exposed and cannot be contaminated. See Pierce Dep. at 20; Leme Dep. at 145-46. Pierce testified that on several occasions, he saw Leme touch sterile portions of the catheter with his non-sterile hands, thereby contaminating the lines. See Pierce Dep. at 13-15; Pierce Aff. ¶¶ 14, 17. Although Leme testified that he "[c]ould see the tips well enough to put them together without contaminating any part of the A-line, " id. at 146, he later clarified that in order to see where to connect the A-line and the catheter, he had to hold the line two or two and a half feet from his face, id. at 204. According to Pierce, contaminating the A-line by touching it with a non-sterile hand put patients at risk of serious infections. See Pierce Aff. ¶ 14. While an infection, at times, can be warded off simply by wiping the contaminated tip with two alcohol swipes, see Carver Dep. at 47-48, if the anesthesiologist deems this insufficient, it may be necessary to re-do the entire line or administer medication, see Carver Aff. ¶ 8; Velez Aff. ¶ 5; Fleming Aff. ¶ 5. Leme proposed that wearing gloves during the A-line connection process could prevent infection. See Notice of Identification of Reasonable Accommodation (Doc. 18; Notice) at 2. However, according to Pierce, the gloves would become contaminated when the Tech touched non-sterile objects, such as the protective caps, and it would be impractical to change gloves frequently because in a surgical setting, “time is of the essence.” See Pierce Aff. ¶ 15. Indeed, for high risk patients, time delays “could be the difference between having a successful surgery and a poor outcome.” See Velez Aff. ¶ 5. Leme also proposed having the anesthesiologist connect and clear the A-line instead of him. See Leme Dep. at 216, 227, 290; Notice at 2.

         Leme's inability to master A-line preparation to Baptist's satisfaction prevented him from completing the clinical portion of his training. See Pierce Dep. at 23; 57-58. Indeed, Leme acknowledged that his training “pretty much” ended after Pierce attempted to teach him how to prepare A-lines. See Leme Dep. at 172-73. Although Pierce usually taught new Techs how to setup and connect Central Venus Pressure monitors (CVPs)[14] and Swans[15] after training the Techs on A-line preparation, Pierce did not train Leme on these functions because, according to Pierce, Leme “did not demonstrate enough proficiency with A-line preparation.” See Pierce Aff. at ¶ 19.

         Throughout Leme's training, Carver received reports that Leme contaminated Alines, failed to see air bubbles, and frustrated physicians with his inability to move quickly through procedures while maintaining his aseptic technique. See Carver Dep. at 38-41; Pierce Dep. at 57; Pierce Aff. ¶ 17; Fleming Aff. ¶ 6. Carver met with Leme on December 20, 2013 to discuss these reports, id. at 85-90, 174-78; Carver Dep. at 14-17; 40-41, and he assured her that he would see a physician to get a new pair of glasses, see Leme Dep. at 85-86; Carver Dep. at 14-15; 39-40.[16] Although Leme obtained a prescription for surgical loupes in January 2014, [17] see Leme Dep. at 97-100; Ex. 12 (Jan. 23, 2014 Letter), he did not use the loupes in the operating room because the environment was too fast paced to put them on and remove them as needed, see Leme Dep. at 97-99.

         Towards the end of Leme's 90 day probationary period, Carver shadowed his performance and testified that she observed numerous errors. See Carver Aff. ¶ 11; Leme Dep. at 188-89, 212-13. She had concerns regarding Leme's inability to read information off the touchscreen computer display monitors, which Leme did not dispute. See Carver Aff. ¶ 11; Leme Dep. at 190, 195, Ex. 24: April 9, 2014 E-mail from Yvonne D. Carver (April 9, 2014 E-mail).[18] When Counsel asked Leme during his deposition whether Baptist could have done anything that would have enabled him to read the monitors, Leme responded that “other than other individuals in the room reading that particular monitor for the physician or the physician reading the monitor themselves, that's the only thing I can think of.” See Leme Dep. at 190-91. However, the parties disagree as to whether reading monitors was an essential function of the Tech position. Leme testified that he received no training on how to read or interpret the monitors, id. at 123, 156, and that he had never been asked to read a monitor before Carver instructed him to do so during the last week of his 90 day probationary period, id. at 158-59, 189. In accord with Leme's view, Crawford testified that Techs only read machines “as a courtesy, ” and that in Crawford's five years as a Tech at Baptist, he read the monitors fewer than ten times. See Crawford Dep. at 40-41; Crawford Aff. ¶ 13. Further, Dr. Samuel Velez (Dr. Velez), an anesthesiologist at Baptist, testified that anesthesiologists did not usually ask Techs to read the monitors more than once per case because the anesthesiologists “constantly” looked at the monitors themselves. See Motion, Ex. F: Deposition of Samuel Velez, M.D. (Velez Dep.) at 15. However, Pierce testified that in emergency situations, it was especially important for a Tech to read the monitor because the anesthesiologist must focus on the patient. See Pierce Aff. ¶11. According to Pierce, Techs must be able to read a patient's “blood pressure, heart rate, [and] oxygen level” from the monitor for the anesthesiologist, and know “whether certain waves are present.” Id.

         D. Leme's Evaluations

         In April, Carver and Tyrone Stewart (Stewart), Baptist's Senior Operations Manager for Surgical Services, discussed their concerns regarding Leme's performance with Lisa Rosa (Rosa), Baptist's Human Resources Business Partner. See Rosa Aff. ¶¶ 2, 4. On Monday, April 14, 2014, at Rosa's recommendation, Carver and Stewart met with Leme to discuss his performance. See Leme Dep. at 208-18, 238-39, Ex. 29: Baptist April 14, 2014 Note (April 14, 2014 Note);[19] Carver Dep. at 52-58; Motion, Ex. I: Deposition of Tyrone Jerod Stewart (Stewart Dep.) at 10-24. At the meeting, Stewart and Carver advised Leme that he must be able to keep the environment sterile, read and operate the monitors, and connect A-lines. See Leme Dep. at 239, Ex. 31: April 22, 2014 EEOC Intake Questionnaire Fax (EEOC Questionnaire) at 6; April 14, 2014 Note.[20]Following the meeting, Stewart and Carver allowed Leme to continue working as a Tech and scheduled him for another evaluation a week later on Monday, April 21st. See Carver Dep. at 34; Stewart Dep. at 21. Carver explained that she gave Leme a week to improve his performance, consider “what his needs were, ” and perhaps meet with another physician, although she did not expect him to be able to get an appointment with a physician within a week. See Carver Dep. at 58. According to Leme, Baptist's characterization of the week as “an opportunity to improve” was a sham because Stewart effectively told him to use the week to “correct” his vision, which would have been impossible. See Leme Dep. at 209-10.

         Leme continued to work as a Tech after the meeting. See Carver Dep. At 34-35. However, just three days later, on Thursday, April 17, Dr. Velez e-mailed Carver to share that Leme's “serious visual limitations” prevented Leme from noticing that an A-line “was full of air bubbles.” See Velez Dep. at 5-8, 21-22, Ex. 1: April 17, 2014 E-mail from Samuel Velez (the Velez E-mail). In his e-mail, Dr. Velez stated:

This is where patient safety becomes a huge concern because accidentally flushing air in to the arterial system would lead to a massive embolus leading to a stroke or death. Although it may seem that anyone could be an anesthesia tech, anyone with serious uncorrectable visual loss should not be considered a reasonable candidate to perform this task. I will state that this is not a personal vendetta or a bias, is a great concern for patient safety [sic] and the consequences for all parties should a preventable medical errors arise. [sic].

See the Velez E-mail. When asked about this in his deposition, Leme recalled an incident in which Dr. Velez grabbed the line from him, but insisted that “[t]here were no air bubbles in the line” and that he was in the middle of the flushing process. See Leme Dep. At 203. Although Leme stated that he did not know why Dr. Velez grabbed the line from him he neither disputed that Dr. Velez believed the line had bubbles and presented a danger to the patient, nor that Dr. Velez expressed that concern to Carver in the Velez E-mail. Id. Carver immediately forwarded the Velez E-mail to Stewart. See Carver Dep. at 58. They scheduled a telephone conference with Rosa and Christine Olinski (Olinski), Senior Consultant for Occupational Health and Leave Administration, to take place before Leme's re-evaluation. See Rosa Dep. at 14-18; Rosa Aff. ¶ 5; Stewart Dep. at 12-13, 34; Motion, Ex. J: Deposition of Christine Olinski (Olinski Dep.) at 18-19. Rosa advised Carver and Stewart to address their concerns with Leme at his scheduled evaluation, and afterwards, to arrange a meeting between Leme and Olinski to explore possible accommodations that would enable him to continue working as a Tech, or other available positions within Baptist. See Carver Dep. at 63-66; Rosa Dep. at 14-17, 34-39.

         As planned, Carver and Stewart met with Leme on Monday, April 21. See Stewart Dep. Ex. 4: April 21, 2014 Meeting Notes (April 21, 2014 Notes);[21] EEOC Questionnaire. Stewart's April 21, 2014 Notes indicate that Leme admitted that his visual impairment “was much more intricate and noticeable” in the Tech position, see Stewart Dep. at 22-23, 31-33; April 21, 2014 Notes at 2, although Leme did not recall this admission, see Leme Dep. at 220-21. At the end of the meeting, Carver and Stewart instructed Leme to meet with Olinski “prior to returning to the Anesthesia Department.” See Stewart Dep. at 13; April 21, 2014 Notes; Carver Dep. at 64-65. However, Leme testified that at this point, he knew Baptist would not have permitted him to continue as a Tech because his vision had not improved since the April 14th meeting, and he did not know of a single accommodation at that time that would have enabled him to fulfill his duties as a Tech.[22]See Leme Dep. at 222-24, 226; Olinski Dep. at 13, 23-24. Olinski asked Leme to provide her with a note from his physician discussing his visual limitations and any reasonable accommodations. See Leme Dep. at 224-25; Olinski Dep. at 16-17. Olinski then brought Leme to Rosa to discuss his potential transfer within Baptist. See Rosa Aff. ¶ 7. Rosa advised Leme that he had 30 days to review Baptist's job postings and apply for a transfer. Id.; Leme Dep. at 252-53.

         E. Leme's April 23, 2014 Removal from the Tech Position

         On April 23, 2014, at Rosa and Stewart's instruction, Carver officially removed Leme from his position as a Tech by e-mailing him his 90 Day Probationary Review indicating that he “did not meet requirements to continue employment.”[23] Despite his removal, on May 5, 2014, Leme e-mailed Olinski and Rosa to inform them that he had not applied for a transfer because he did not know whether he qualified for any of the available jobs. See Leme Dep. at 250-52, Ex. 33: May 5, 2014 E-mail from Kristiano Leme (May 5, 2014 E-mail). Leme attached a copy of Dr. Jordan's summary of an eye exam she performed on December 6, 2013 to the e-mail. See Leme Dep., Ex 11: Brooks Rehabilitation December 6, 2013 Patient Summary for Return to Work (Dec. 6, 2013 Summary). At that time, Dr. Jordan gave Leme a new prescription for distance viewing and recommended that Baptist accommodate Leme by: (1) permitting him to use a magnifying app on his phone;[24] (2) providing better lighting; (3) providing a “closer working distance” and magnifying the print; and (4) affording him “additional time to read materials.” See Dec. 6, 2013 Summary. Upon receiving the May 5, 2014 E-mail, Rosa urged Leme to contact her, but they were unable to connect. See Leme Dep. at 252-55; Rosa Aff. ¶ 9.

         On May 13, 2014, Rosa sent Leme a letter confirming that the Anesthesia Department would not be able to accommodate him. See Leme Dep., Ex. 34: May 13, 2014 Letter from Lisa Rosa (May 13, 2014 Letter); Rosa Aff. ¶ 10; Rosa Dep. at 24-33. She also reminded Leme that his 30 day window to apply for a transfer would expire on May 21, 2014. See May 13, 2014 Letter. Rosa advised Leme to contact her to discuss his options. Id. In response, Leme scheduled a meeting with Rosa and Olinski for May 22, 2014. See Leme Dep. at 256; Rosa Dep. at 18-21; Rosa Aff. ¶ 7. At the meeting, Rosa and Olinski gave Leme an additional 30 days to apply for alternative positions, and suggested that he consider a desk position with patient financial services or patient access services. See Leme Dep. at 260; Rosa Dep. at 20-21, 57; Rosa Aff. ¶ 7. However, within hours of the meeting, Leme e-mailed Rosa to inform her that he did not intend to apply for a transfer. See Leme Dep., Ex. 35: May 22, 2014 E-mail from Krisiano Leme (May 22, 2014 E-mail). On May 19, 2014, Leme filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC). See Leme Dep., Ex. 37: Charge of Discrimination.

         II. Standard of Review

         Under Rule 56, Federal Rules of Civil Procedure (Rule(s)), “[t]he court shall grant 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.” Rule 56(a). The record to be considered on a motion for summary judgment may include “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Rule 56(c)(1)(A).[25] An issue is genuine when the evidence is such that a reasonable jury could return a verdict in favor of the nonmovant. See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A] mere scintilla of evidence in support of the non-moving party's position is insufficient to defeat a motion for summary judgment.” Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

         The party seeking summary judgment bears the initial burden of demonstrating to the court, by reference to the record, that there are no genuine issues of material fact to be determined at trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). “When a moving party has discharged its burden, the non-moving party must then go beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (citations and quotation marks omitted). Substantive law determines the materiality of facts, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. In determining whether summary judgment is appropriate, a court “must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (citing Dibrell Bros. Int'l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)).

         III. Preliminary Issue: Admissibility of Tina Leme's Affidavit

         Before addressing the parties' respective positions with regard to the merits of Leme's claims, the Court must resolve Baptist's Objection to the admissibility of certain evidence. Baptist objects to Tina Leme's testimony in paragraph numbers 7 and 8 of her affidavit, in which she states:

7. In my capacity as the RN in the COPs Unit, [26] we routinely performed what are known as Bubble Studies. To do a bubble study, you intentionally inject air bubbles into a patient's circulatory system so the bubbles can be tracked using an Echocardiogram machine as they travel through the heart to assess whether the patient has a hole in their heart. I personally injected these bubbles several times a week. I continue to perform Bubble Studies occasionally and did so last week. When we do this, we are looking for bubbles that transfer improperly through a hole in the heart. In my experience, no patients were ever injured by the air bubbles that we injected in performing the studies.
8. In my experience, the size and quantity of the bubbles we routinely inject into patients for bubble studies exceeds the amount that might be inadvertently left in the A-line by poor line clearing technique.

Leme Aff. ¶¶ 7-8. Baptist moves the Court to exclude this testimony because Plaintiff failed to list Tina Leme on his Rule 26 Expert Witness Disclosure, and even if he had, Baptist contends that Tina Leme is not a qualified expert. See Objection at 2-3.[27]

         Generally, courts may not consider evidence for purposes of summary judgment that would not be admissible at trial. See Corwin v. Walt Disney Co., 475 F.3d 1239, 1249 (11th Cir. 2007) (excluding expert testimony because “[e]vidence inadmissible at trial cannot be used to avoid summary judgment.”). Therefore, the Court will apply the same standards it would use at trial to determine the admissibility of Tina Leme's testimony. To do so, the Court must determine whether Tina Leme's proffered testimony is expert testimony or lay witness testimony. If the Court finds it to be expert testimony, the Court will consider whether Leme has laid a proper foundation for its admission.

         Leme cites United States v. 0.161 Acres of Land, 837 F.2d 1036 (11th Cir. 1988) for the proposition that a court should not keep relevant evidence from the jury because it “is entitled to accept or reject” an expert's opinion. See Objection Response at 6. However, 0.161 is inapt because the Eleventh Circuit addressed whether a district court properly excluded evidence as unduly prejudicial under Rule 403 of the Federal Rules of Evidence. To resolve the parties' dispute over the admissibility of portions of Tina Leme's Affidavit, the Court need only to determine (1) whether Tina Leme's Affidavit contains expert testimony, and if so, (2) whether she is a qualified expert. Therefore, 0.161's analysis of Rule 403 is not applicable.

         A. Expert v. Lay Testimony

         Rule 701 of the Federal Rules of Evidence permits a lay witness to offer opinions or inferences that are “(a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Although a lay witness may not draw inferences, she can testify as to her observations even if the subject matter is technical. See Zamboni v. R.J. Reynolds Tobacco Co., No. 3:09-cv-11957 (SAS), 2015 WL 221150, at *2 (M.D. Fla. Jan. 13, 2015); see also United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005) (allowing a physician to provide lay testimony “based on his experience as a physician.”). Expert witnesses, on the other hand, testify based on scientific, technical, and specialized knowledge. See Fed.R.Evid. 702. They also differ from lay witnesses because of their “ability to answer hypothetical questions.” Henderson, 409 F.3d at 1300 (permitting a lay witness to diagnose an injury, but not to speculate on its cause.).

         Baptist avers that the testimony in paragraphs 7 and 8 of Tina Leme's Affidavit constitutes expert testimony because Tina Leme uses “scientific, technical, or specialized knowledge” to speculate that patients are unlikely to suffer harm from an uncleared A-line because none were harmed during her bubble studies. See Objection at 6. However, Baptist conflates Tina Leme's testimony with an argument raised in the briefing. In the Response, Leme relies on Tina Leme's testimony to argue that Baptist “substantially overstated any danger” with bubbles in an A-line. See Response at 16. The testimony in Paragraph 7 of Tina Leme's Affidavit, without Leme's inference, does not contain expert testimony. Although Tina Leme testifies about bubble studies, which are of a technical nature, her testimony is limited to her observations and experiences as a nurse performing bubble studies. As such, Tina Leme as a lay person can properly testify to these matters assuming they are relevant.

         The testimony in Paragraph 8 of Tina Leme's Affidavit, on the other hand, differs. There, Tina Leme hypothesizes that the “size and quantity” of bubbles used in bubble studies “exceeds the amount” one might fail to clear in an A-line. Nothing in her Affidavit suggests that this testimony is based on her personal knowledge. Instead it presents her theory or opinion about the danger presented by a ...


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