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Russell v. City of Tampa

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

June 15, 2017

DEE RUSSELL, Plaintiff,
v.
CITY OF TAMPA, FLORIDA, Defendant.

          ORDER

          JAMES S. MOODY, JR. UNITED STATES DISTRICT JUDGE

         THIS CAUSE comes before the Court upon Plaintiffs Motion to Strike Defendant's Expert Witness and Expert Report (Dkt. 18) and Defendant's Response in Opposition (Dkt. 28). The Court, upon review of the motion, response, and being otherwise advised in the premises, grants Plaintiffs motion because Defendant's expert, Christian Yates, will not assist the trier of fact.

         BACKGROUND

         On April 15, 2016, Plaintiff Dee Russell, a former employee of Defendant The City of Tampa, filed an action against the City for unlawful retaliation in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. §12101, et seq., as amended ("ADA") and the Florida Civil Rights Act of 1992, §760.01, Florida Statute, et seq. ("FCRA").

         Plaintiff was employed at the City as a Solid Waste Collection Driver during the relevant time. At some time during his employment, Plaintiff was diagnosed with a medical condition that allegedly limited one or more of his major life activities. On July 30, 2013, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”), asserting that the City failed to reasonably accommodate his disability. On March 13, 2014, Plaintiff filed, pro se, a lawsuit under the ADA for disability discrimination against the City. Plaintiff was still employed by the City at the time he filed his pro se lawsuit.

         On December 18, 2014, during the pendency of his ADA lawsuit against the City, Plaintiff was involved in an accident involving the City's solid waste truck. Specifically, while waiting in the queue at the McKay Bay transfer station to unload debris from City vehicle #1240, Plaintiff exited the vehicle to speak to another driver. According to Plaintiff, he believed he had pulled the parking brake prior to exiting the vehicle. However, while he was talking to the other driver, the vehicle began moving forward, went over a speed bump, and struck the vehicle in front of it, causing approximately $6, 800 in damages. The accident did not result in any injuries. Plaintiff repeatedly told the police officers who arrived at the accident scene and the City, during its subsequent investigation of the accident, that he had set the brake.[1]

         The City ultimately concluded that Plaintiff had not set the brake and, on March 10, 2015, issued Plaintiff a “Letter of Counseling” related to the incident because the accident was preventable. The City relied on the recommendation from its Safety Review Committee, which had concluded that Plaintiff had not pulled the parking brake, the traffic report, and statements from a mechanic who inspected the vehicle after the accident.

         On April 1, 2015, Plaintiff took the deposition of Mark Wilfalk, the City's Solid Waste Director, as part of his pro se lawsuit against the City, which was still pending at that time. According to Plaintiff, Wilfalk's deposition was “heated” and Wilfalk was “visibly irritated during the deposition.” (Dkt. 1).

         The complaint alleges that within a month of his deposition, Wilfalk issued Plaintiff a notice of disciplinary action, accusing Plaintiff of making false statements, and thus violating the City's policy on “Moral Turpitude.” At a May 7, 2015 hearing, the City showed Plaintiff video footage of the accident, which revealed Plaintiff exiting the vehicle without setting the parking brake. Based on the video, the City terminated Plaintiff's employment for intentionally lying to the police officers and the City when he repeatedly maintained throughout the investigation and grievance process that he had pulled the parking brake.

         Plaintiff alleges that the City's stated reason for terminating his employment is “not worthy of belief.” (Dkt. 1). Plaintiff contends that the City had already concluded in January 2015, based upon the mechanic's report, that Plaintiff had not set the parking brake. Plaintiff's retaliation claims in this case are premised on the timing of Wilfalk's April 1, 2015 deposition and Plaintiff's May 7, 2015 termination-according to Plaintiff, these two events are causally related. Plaintiff now admits that he did not pull the parking brake. Plaintiff argues that the real reason he was terminated was because he pursued the initial discrimination case against the City.[2]

         On May 8, 2017, the City designated Christian Yates, a mechanical engineer specializing in accident reconstruction, as an expert witness. The City served Yates' expert report on May 10, 2017. Yates opines as follows:

1. The driver of the City of Tampa solid waste truck did not engage the parking brake prior to exiting the vehicle at the time of the accident.
2. The driver of the City of Tampa solid waste truck did not put the vehicle in neutral prior to exiting the vehicle at the time of the accident.
3. The driver of the City of Tampa solid waste truck did not follow the proper procedure to exit his vehicle in that he did not put the vehicle in neutral and apply the ...

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