United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE UNITED STATES DISTRICT JUDGE
THE COURT is Defendant's Dispositive Motion for
Summary Judgment (Dkt. 36), which Plaintiff opposes in part
(Dkt. 45). Plaintiff, a former sales employee of Defendant,
brought a nine count complaint alleging violations of the
Uniformed Services Employment and Reemployment Rights Act of
1994 (USERRA), 38 U.S.C. § 4301, et seq., the
Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. §
2601, et seq., Title VII of the Civil Rights Act of
1964, § 701 et seq., 42 U.S.C. § 2OOOe
et seq., and the Florida Civil Rights Act of 1992,
Fla. Stat. §§ 760.01 -760.11 (Counts I, II, IV,
VIII, and IX). Plaintiff does not oppose summary judgment on
his claims of race discrimination in Counts V, VI, and VII,
or on his claim for FMLA interference in Count III. (Dkt. 45
at 1 n.l). Upon consideration, Defendant's motion (Dkt.
36) is GRANTED in part and DENIED in part.
MATERIAL UNDISPUTED FACTS
is a service member in the U.S. Navy Reserves, having served
in the military since June 2008. (Klingensmith Aff. ¶ 6,
Dkt. 36-2; Washington Aff. ¶ 4, Dkt. 45-1). He began
working for Defendant on June 1, 2015 as a sales
representative. (Dkt. 36 ¶ 6). To take off work, he was
required to obtain permission from his supervisor.
(Washington Dep. 143:2-18, July 7, 2017, Dkt. 47;
Klingensmith Aff. ¶ 11, Dkt. 36-2). On March 7, 2016, he
provided written notice of annual military leave for March 14
through March 25, 2016. (Dkt. 36-26). He attended military
training at MacDill Air Force Base. (Washington Dep.
268:17-269:1, Dkt. 48).
March 11, the last business day before his military training,
Plaintiff was placed on a performance plan. (Counseling
Record, Mar. 11, 2016, Dkt. 36-30). That same day, at 3:56
p.m., he notified his supervisor that he had a personal
emergency and would be out the remainder of the day, to which
his supervisor responded "Will be in touch[.]"
(Text Message Exchange, Mar. 11, 2016, Dkt. 45-3). On March
18, while on military leave, he filed a Charge of
Discrimination with the Equal Employment Opportunity
Commission. (Dkt. 36-32). On March 23, he submitted a request
for FMLA leave for June 13 through July 29, 2016. (Dkt.
36-33). On March 25, he was terminated. (Klingensmith Aff.
¶ 18, Dkt. 36-2). This action followed.
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-movant] 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
the governing law. Allen v. Tyson Foods, Inc., 121
F.3d 642, 646 (11th Cir. 1997).
moving party bears the initial burden of showing the court,
by reference to materials on file, that there are no genuine
disputes of material fact that should be decided at trial.
Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d
1256, 1260 (11thCir. 2004) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). If the moving party
fails to demonstrate the absence of a genuine dispute, the
motion should be denied. Kernel Records, 694 F.3d at
1300 (citation omitted). On the other hand, '"[i]f
no reasonable jury could return a verdict in favor of the
nonmoving party, there is no genuine issue of material fact
and summary judgment will be granted.'" Lima v.
Fla. Dep't of Children & Families, 627
Fed.Appx. 782, 785-86 (11th Cir. 2015) (quoting Beal v.
Paramount Pictures Corp., 20 F.3d 454, 459 (11th Cir.
Counts I and II: USERRA Violations - Discrimination and
Counts I and II, Plaintiff brings claims for discrimination
and retaliation in violation of USERRA. USERRA was enacted to
prohibit employment discrimination based on military service.
38 U.S.C. § § 4301, 4311. "Section 4311
prohibits employers from discriminating against employees on
the basis of military service and retaliating against
individuals[.]" Coffinan v. Chugach Support
Servs., Inc., 411 F.3d 1231, 1234 (11th Cir. 2005).
i. Discrimination - Failure to Promote; Failure to
Return to Previously Held Position
Section 4311 (a) provides that:
A person who is a member of, applies to be a member of,
performs, has performed, applies to perform, or has an
obligation to perform service in a uniformed service shall
not be denied... retention in employment... or any benefit of
employment by an employer on the basis of that membership,
application for membership, performance of service,
application for service, or obligation.
38 U.S.C. § 4311(a). An employer engages in a prohibited
action under subsection (a) if the employee's membership,
service, or obligation for service in the military is a
motivating factor in the employer's action, unless the
employer can prove that the action would have been taken in
absence of such membership, service, or obligation for
service. 38 U.S.C. § 4311(c)(1).
establish a prima facie case of discrimination,
Plaintiff must show by a preponderance of the evidence that
his status as a reservist was a substantial or motivating
factor in the employment action. Coffinan, 411 F.3d
at 1238. "Indeed, [m]ilitary status is a motivating
factor if the defendant relied on, took into account,
considered, or conditioned its decision on that
consideration." Id. (alteration in original,
internal quotations and ...