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Russell v. City of Tampa

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

August 31, 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 Defendant's Motion for Summary Judgment (Dkt. 40) and Plaintiff's Response in Opposition (Dkt. 44). The Court, having reviewed the motion, response, record evidence, and being otherwise advised in the premises, concludes that Defendant's motion should be granted and final judgment should be entered in Defendant's favor because Plaintiff failed to show that Defendant's reason for Plaintiff's termination was pretextual.

         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.[1]

         On January 15, 2015, the City's Solid Waste Safety Review Committee, which was comprised of seven of Plaintiff's former co-workers, reviewed the December 18, 2014 accident. The Safety Review Committee unanimously found that the accident was “preventable.” On January 26, 2015, Plaintiff was issued a letter that outlined the Safety Review Committee's findings.

         On January 29, 2015, Plaintiff appealed the Safety Review Committee's finding that the December accident was “preventable, ” by filing a Step 1 Grievance. In his Step 1 Grievance, Plaintiff alleged that the members of the panel were not qualified to evaluate the accident, that they did not ask enough questions, and that the panel “disregarded” the facts that were presented to them. Plaintiff noted that a mechanic inspected the truck at the scene of the accident and determined that it was possible for the brakes to release while parked.

         On February 5, 2015, Plaintiff's supervisor, Nathan McGriff, issued Plaintiff a “Letter of Counseling” for the December 18, 2014 accident. Plaintiff refused to sign the Letter of Counseling.

         On February 6, 2015, McGriff and the Residential Services Manager, Kiana Bell (later, Kiana Romeo), denied Plaintiff's Step 1 Grievance. In their response, they stated, in relevant part, that the Florida Traffic Crash Report referenced that the truck's brakes “held” during its review of the accident; that the mechanic did not recall stating that the brakes may have released while parked; and that a request would be placed with the City of Tampa Fleet Maintenance Department to check the vehicle's brake system. The response also noted that: “At this time your requested remedy to change your accident from Preventable to Non-Preventable is denied.” (Dkt. 40-13).

         Plaintiff escalated his grievance to a Step 2 Grievance. The Step 2 Grievance hearing was conducted on February 24, 2015, by Director Mark Wilfalk. At the hearing, Plaintiff maintained that the accident was non-preventable and caused by a mechanical failure. Plaintiff also stated that he pulled the parking brake. At the conclusion of the hearing, Wilfalk told Plaintiff that he would thoroughly investigate his grievance.

         During Wilfalk's investigation, the subject vehicle was returned to the City from the vendor who had conducted the repairs. The repair work orders confirmed that there were no defects in the vehicle's air brakes. The memory cards from the vehicle's camera system were obtained. At this time, the City was able to view, for the first time, the footage of the accident. McGriff was the first City employee who viewed the footage of the accident. He then turned the video over to Wilfalk, who was in the middle of his investigation of Plaintiff's Step 2 Grievance.

         The video footage, which contains audio, shows Plaintiff exiting the vehicle without applying the air brakes or turning off the ignition. According to the City, the video made clear that Plaintiff had been lying to the police and the City during the investigation of his grievances when he consistently stated and maintained that he had properly secured the vehicle's air brake system. According to the City, the video formed the basis of the City's determination that Plaintiff intentionally misrepresented facts and was in violation of the Moral Turpitude provision in his employment contract.

         After viewing the video, Wilfalk drafted a document that outlined his investigation of Plaintiff's Step 2 Grievance. The record reflects that on March 13, 2015, Wilfalk sent an e-mail to Debra Cole, his assistant, with a copy to Daryl Stewart, the Chief of Administration, Adriana Colina, the Employee Relations Specialist/Human Resources, and Kiana Bell, the Superintendent of Residential Services, that attached a document. The body of the e-mail states: “Debra, Please proof and draft on the appropriate response form. Thanks, Mark W.” (Dkt. 40-17). The attached document states:

On February 24, 2015, a Step II grievance hearing was held to discuss an incident you were involved in while operating an automated side loading garbage truck number 1240. The details of this incident were reviewed by the department's Incident Review Panel (IRP) and determined to be preventable.
After the hearing, I had the opportunity to review the Tampa Police Department report, the IRP findings, the Division of Fleet Maintenance's post inspection report, and speak with the department's Solid Waste Mechanic, Jonathan Mullins who responded to the scene.
Additional research into this matter indicates you neglected to properly set and check your assigned vehicle's parking breaks [sic] while waiting in line to unload waste at the McKay Bay Waste-to-Energy (WTE) facility. Your failure to do so caused your truck to roll forward and collide into the rear end of a Republic Services, Inc. front-end loading garbage truck.
I have not been presented with enough factual evidence to contradict the findings of the IRP, police report, post-incident inspection report, or other City staff members who investigated this incident. Therefore, your ...

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