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Ponce v. City of Naples

United States District Court, M.D. Florida, Fort Myers Division

March 20, 2018

MANUEL A. PONCE, Plaintiff,
CITY OF NAPLES, Defendant.



         This matter comes before the Court on defendant's Motion for Summary Judgment (Doc. #39) and supporting documentation filed on December 18, 2017. Plaintiff filed a Response in Opposition (Doc. #44) and supporting documentation on January 29, 2018. A Reply (Doc. #48) and Sur-reply (Doc. #22) were filed. For the reasons set forth below, the Motion is denied.


         A court may grant summary judgment only if satisfied that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it goes to “a legal element of the claim under the applicable substantive law” and thus may impact the case's outcome. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). “An issue of fact is ‘genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004).

         “The burden of establishing that there is no genuine issue of material fact lies with the moving party.” Walker v. Darby, 911 F.2d 1573, 1576 (11th Cir. 1990) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). “[O]nce the moving party has met that burden by presenting evidence which, if uncontradicted, would entitle it to a directed verdict at trial, ” the party opposing summary judgment must “set forth specific facts showing that there is a genuine issue for trial. A mere ‘scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Id. at 1576-77. In ruling on the motion, the court must view all evidence and draw all reasonable inferences in favor of the non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007); Tana v. Dantanna's, 611 F.3d 767, 772 (11th Cir. 2010).

         Summary judgment should be denied not just where the parties disagree on issues of material fact, but also “where the parties agree on the basic facts, but disagree about the factual inferences that should be drawn from these facts.” Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983); see also Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir. 2007) (“If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, then the court should not grant summary judgment.”). Put simply, if the resolution of a material fact or the inference to be drawn therefrom presents a “he said, she said” scenario, and if the record has evidence genuinely supporting both sides of the story, then summary judgment is not appropriate.


         This case alleges unlawful retaliation and discrimination in violation of the Florida Civil Rights Act (FCRA), the federal Family and Medical Leave Act (FMLA), and the Americans with Disabilities Act (ADA) against the City of Naples (defendant or City), which is plaintiff Manuel A. Ponce's (plaintiff or Ponce) former employer. (Doc. #22.)[1] Plaintiff seeks injunctive relief, back pay, front pay, reimbursement for lost expenses, declaratory relief, compensatory damages, and his attorney's fees and costs. (Id.)

         The undisputed material facts are as follows: Ponce, a Hispanic male, started working at the City in the Solid Waste Division of the Utilities Department (the “Division”) as a Service Worker II in 1988, and worked there for the next 27 years until he involuntarily resigned in 2016. (Doc. #44-1, 5:4-5.) Throughout his employment, Ponce held various job classifications as Service Worker III, Equipment Operator III, Meter Reader, and Equipment Operator V. From about 2009, until his resignation in 2016, plaintiff worked as a front load driver, emptying commercial dumpsters throughout the City as Heavy Equipment Operator V. (Id., pp. 8-9.)

         During the relevant time period, Ponce's immediate supervisor was William Wilcox. The Superintendent of the Solid Waste Division, Brad White, was above Wilcox. Ponce had a good relationship with White and on days when Wilcox was out of the office, White would put Ponce in charge and White had hopes that Ponce would progress to a supervisor position. (Doc. #39-1, 8:1-8, 9:11-19.) White died in 2015 and was replaced by Denny Kotala, although Ponce had also applied for the position. Bob Middleton, the Director of the City's Utilities Department, which encompasses solid waste, was above Kotala. Prior to his death, White sent a memo to Middleton dated January 22, 2015, recommending reclassification of Ponce's job to Solid Waste Coordinator to include advanced duties and responsibilities, as well as a higher salary. (Doc. #44-6.) In doing so, White praised Ponce's work performance. (Id.)

         A. Timeline of Plaintiff's Performance

         The parties have submitted Ponce's performance evaluations from 1988-2016. (Doc. #39-1, pp. 72-74; Doc. #44-1.) Throughout the years, Ponce generally performed as “expected” or “competent, ” but he did receive some unsatisfactory ratings and at times was disciplined and reprimanded. See, e.g., Doc. #44-1, p. 9, 2010-11, written reprimand for windshield damage and not servicing a container/neglect of duty; p. 13, 2008-09, written reprimand for not using personal eye protection, needs to improve compliance with safety procedures and written reprimand for mailbox damage; p. 22, 2005, involved in a preventable accident; Doc. #44-3, p. 3, 2000-01, involved in an accident. Although he was reprimanded, Ponce's total overall ratings remained “expected” on every evaluation until 2015.

         1. Plaintiff's Health Problems Begin

         In October 2013, Ponce suffered a heart attack and remained out of work for approximately one month. Upon his return, he started driving a smaller dumpster carrier truck. On March 1, 2015, Ponce was admitted to the hospital with chest pains, but was released two days later and returned to work without restrictions. (Doc. #39-5, 15:9-24; Doc. #44-8.)

         In April 2015, Wilcox assigned Ponce to residential garbage collection to cover for a coworker, which entailed manually picking up garbage containers and emptying them into collection bins. While climbing into the truck, Ponce strained his shoulder, re-aggravating a rotator cuff injury. (Doc. #44-9.) Following treatment, in May 2015 his physician returned him to work on light duty with restrictions of lifting no greater than 20 pounds and no overhead work, as well as physical therapy three times a week for four weeks. (Id.; Doc. #44-10.) The restrictions were later adjusted to no lifting, carrying, pushing, or pulling greater than 10 and then 15 pounds with his right arm. (Doc. #44-10, p. 4.)

         When Ponce returned to work on light duty, the City did not assign him to drive a dumpster carrier truck. Instead, the City assigned him to various jobs, including picking weeds, trimming hedges, and emptying rattraps, tasks all solid waste employees are required to do. (Doc. #39-1, 19:10-15; Doc. #39-4, 23:2-5.) In July 2015, while pulling weeds and trimming hedges outside, Ponce suffered two heat strokes, a week apart from each other. After this, Kotala began having concerns about Ponce's performance, believing that Ponce was unable to perform the simplest of assignments. (Doc. #39-3, 24:6-17.) Yet other than trimming bushes, Kotala could not recall what other simple assignments Ponce was unable to perform. (Id., 24:18-22.) Kotala relayed his concerns to Middleton. (Id., 24:9-13.)

         On July 21, 2015, the City's workers compensation carrier denied Ponce's claim for his shoulder injury on the basis that the injury was not work-related, but was the result of a personal, preexisting medical condition. (Doc. #39-7, 51:23-52:2.) As a result, on July 28, 2015, the City advised Ponce that it could no longer accommodate his right shoulder light work restrictions. (Id., 50:10-61:9.) Therefore, effective immediately, the City took Ponce out of work and placed him on personal leave and provided him with FMLA paperwork. (Id., 66:20-67:3.) The City advised Ponce that he could not return to work until he had been released to full duty with no work restrictions. (Id., 68:21-25.)

         2. Negative Annual Performance Evaluation Immediately Following FMLA Leave

         Ponce subsequently went on FMLA leave, had shoulder surgery in August 2015 (Doc. #44-15), and did not return to work until on or about December 28, 2015[2] after his doctor had determined he was able to return to his job as a Heavy Equipment Operator with no restrictions. (Doc. #44-33, Fitness for Duty Evaluation). During his absence, Ponce's annual evaluation for fiscal year October 1, 2014 to September 30, 2015 came due. Although Ponce was on light duty work restriction from May to August 2015, and absent from August to December 2015, any performance during that time period was evaluated, including the time on light duty. (Doc. #39-4, 28:5-13; Doc. #39-2, 94:19-95:1.) Wilcox prepared the evaluation and it was a poor one. Out of sixteen performance factors, Ponce ranked “unsatisfactory” in eleven and “expected” in the rest. (Doc. #39-1.) The total overall rating was “unsatisfactory.” (Id.) This was the first time Ponce's total overall rating was unsatisfactory in the 26 years he had been employed by the City. His evaluation stated:

Manuel needs to improve job performance. His dumpster repair skills need to improve so he can perform sufficient work that will last. He needs to improve initiating work on his own and be more efficient with the time he takes to complete assignments and do so with minimal supervision.

(Id., p. 2.) At his deposition, Wilcox was unable to provide any specific examples of things Ponce did or failed to do that would lead to an overall unsatisfactory rating.[3] (Doc. #39-2, 48:1-55:15.) Since unsatisfactory performance requires automatic performance probation for up to 90 days, when Ponce returned to work from FMLA leave in December 2015, he was immediately placed on 90-days probation. (Doc. #39-4, 25:6-12.)

         During the probationary period, Ponce was not assigned to the dumpster carrier driving position. Instead, the City briefly assigned him to work on a recycling truck, after which he was assigned to drive a large 40-yard roll-off dumpster carrier, which plaintiff testified he had no experience nor adequate training to operate.[4] (Doc. #39-1, 26:21-27:5.)

         3. Three Instances of Misconduct on January 19, 2016

         On January 19, 2016, Wilcox submitted a memorandum to Kotala, describing three instances of insubordination/neglect by Ponce that had occurred that day.[5] (Doc. #44-21.) The parties' version of events as to what transpired vary; therefore, the following is a summation of the three instances but is not necessarily accepted as undisputed evidence.

         First, on January 19, 2016, Ponce left his truck unattended and idling in the yard, which was a violation of the City's policy against letting trucks idle for no more than three minutes. Kotala asked Ponce why he left the vehicle running and Ponce stated that the vehicle was performing a “burn off, ”[6] but Ponce had failed to inform his supervisor that he was doing so, in violation of City policy.[7] (Doc. #39-3, 59:17-60:21.) Kotala told Ponce that he needed to tell his supervisor when he changes assignment areas and that they could talk about it on Friday, to which Ponce replied “You can talk all you want.” (Id., p. 1.) Ponce testified that when he was performing the burn off Kotala approached him about the idle policy, and Ponce said he was aware of the policy but in his defense, he was performing a burn off and stated “you could talk about it all you want, but on my defense you have to let the truck run for 15, 20 ...

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