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Baussiquot v. Akal Security, Inc.

United States District Court, S.D. Florida

May 7, 2018




         THIS CAUSE came before the Court on the Defendant, AKAL Security, Inc.'s Motion for Summary Judgment [ECF No. 23][1], and Plaintiff, Herbert Baussiquot's[2] Motion for Partial Summary Judgment [ECF No. 25].[3] The Court has carefully considered the parties' written submissions and applicable law.

         I. BACKGROUND

         Defendant hired Baussiquot to work as an armed detention officer at the Krome Detention Center in Miami, Florida, on July 1, 2014. (See Def.'s SMF ¶ 1 (undisputed)). Akal had a subcontract with Akima Global Services, LLC, a contractor of Immigration and Customs Enforcement tasked with providing care, custody, and control of immigration detainees in federal custody at Krome. (See Id. ¶ 2 (undisputed)). In 2014, Akal hired Baussiquot to work on the Akima/Akal Subcontract. (See Id. ¶ 5 (undisputed)). Baussiquot was terminated on November 17, 2016. (See Pl.'s SMF ¶ 1; see also Def.'s SMF Opp'n ¶ 1).

         A. Baussiquot Took Intermittent FMLA Leave

         On June 20, 2016, Baussiquot requested intermittent Family and Medical Leave Act (FMLA) leave beginning on July 7, 2016, to care for his mother. (See Def.'s SMF ¶ 14 (undisputed)). Under the Akima/Akal Subcontract, Akima was responsible for processing and approving all requests for FMLA leave for both Akima and Akal officers. (See Id. ¶ 12 (undisputed)). Baussiquot requested FMLA leave from Karen Sinanan, an Akima Human Resources Generalist responsible for processing and approving all requests for FMLA leave for both Akima and Akal officers. (See Id. ¶ 13; see also Pl.'s SMF Resp. ¶ 13). Baussiquot's initial FMLA leave was approved for July 7, 2016 through October 8, 2016. (See Def.'s SMF ¶ 14 (undisputed)).

         On September 2, 2016, Baussiquot informed Sinanan he needed additional intermittent FMLA leave to continue caring for his mother. (See Def.'s SMF ¶ 15 (undisputed)). Sinanan approved the request, allowing Baussiquot to continue his intermittent leave until December 31, 2016. (See Id. (undisputed)). Baussiquot was never denied a request for FMLA leave. (See Id. ¶ 19 (undisputed)). In total, Baussiquot took 44 days of intermittent FMLA leave. (See Pl's SMF ¶ 13 (undisputed)).

         While on intermittent FMLA leave, Baussiquot took leave as needed and was not on a set leave schedule. (See Def.'s SMF ¶ 18 (undisputed)). The absences were then excused. (See Pl.'s SMF ¶ 14 (undisputed)). On the days Baussiquot needed FMLA leave and was scheduled to be at work, he would call a transportation supervisor and inform the supervisor he was taking FMLA leave that day. (See Def.'s SMF ¶ 18 (undisputed)). Throughout 2016, Akal Lieutenant, Lenora Seymour, was one of Baussiquot's supervisors. (See Pl.'s SMF ¶ 4 (undisputed)). According to Seymour, Akal policy requires that after a transportation supervisor is notified an officer is calling out for approved intermittent FMLA leave, the transportation supervisor must inform the officer's direct supervisor, who then assigns others to cover for the officer who is not coming to work. (See Affidavit of Lenora Seymour (“Seymour Affidavit”) [ECF No. 21-3] ¶¶ 1, 13).

         Joe Olmedo, the Krome site manager and an Akal employee (see Joe Olmedo Deposition (“Olmedo Deposition”) [ECF No. 24-3] 8:1-8), made inquiries regarding Baussiquot's FMLA absences (see Pl.'s SMF ¶ 15 (citing Olmedo Dep. 14:9-15:3, 23:23-24:9; Emails to Olmedo [ECF No. 24-12] 00391, 00400)). Olmedo forwarded an email to Angela Robeson from Telise Gay, a transportation officer supervised by Olmedo (see Olmedo Dep. 9:22-10:6), in which she reported to Olmedo that Baussiquot had “called out” on September 7, 2016. (See Olmedo's Email re: Plaintiff's FMLA Leave [ECF No. 32-12] 000375). In the email to Robeson, Akal's Director of Detention Services, Olmedo added, “this employee is showing a pattern of FMLA call outs . . . I can[']t count on this officer showing up to work, ” and requested “one more hire to train as an armed officer so we can assist in eliminating the overtime caused by [Baussiquot].” (Id. 000375 (alterations added); see also Affidavit of Josephine Coker (“Coker Aff.”) [ECF No. 21-1] ¶ 27)).

         On September 19, 2016, Olmedo asked Sinanan for the dates Baussiquot was approved for FMLA leave, to which Sinanan responded by attaching Plaintiff's FMLA documentation. (See Emails to Olmedo 00391). That same day, Olmedo received another e-mail notifying him Baussiquot had called out for 36 days of FMLA leave between July 10 and September 14, 2016. (See id. 00400).

         B. Baussiquot Missed a Quarterly Firearm Re-Qualification

         As an armed detention officer, Baussiquot was required to attend quarterly firearm re-qualifications. (See Pl.'s SMF ¶ 18 (undisputed)). The firearm re-qualification training can be scheduled every two weeks or once a month, depending on operational needs, officers' availability and the availability of the range. (See id. ¶ 19 (undisputed)). The schedule for firearm re-qualification is created by the training manager and is then provided to the officer's supervisor and posted outside the office. (See id. ¶ 21 (undisputed)). Baussiquot completed a quarterly re-qualification in June 2016. (See id. ¶ 20 (undisputed)).

         On September 24, 2016, Baussiquot received a call stating he was a “no call no show for his quarterly firearm requalification.” (Id. ¶ 27 (undisputed)). Baussiquot states since he was on FMLA leave, he was not aware he had been placed on the schedule and was never notified by email or phone that he had been scheduled for his quarterly firearm re-qualification prior to September 24, 2016. (See Id. ¶ 28 (citing Information Report Form [ECF No. 24-18] 00182-83); Pl.'s Dep. 187:3-16). According to Akal, Baussiquot was aware he was scheduled because Seymour notified Baussiquot by phone of the re-qualification, and regardless, Baussiquot could have called a supervisor to find out when he was scheduled. (See Def.'s SMF Opp'n ¶ 28 (citing Deposition of Lenora Seymour (“Seymour Dep.”) [ECF No. 32-1] 65:14-22, 66:8-13)).

         Baussiquot asked if he could attend the re-qualification course late, but the request was denied. (See Def.'s SMF ¶¶ 32-33 (citing Affidavit of Marc Elias (“Elias Aff.”) [ECF No. 21-5] ¶¶ 14-16; Seymour Aff. ¶ 23; Pl.'s Dep. 180:7-18); Pl.'s SMF Resp. ¶ 32 (citing Pl.'s Dep. 183:1-14)). Baussiquot claims non-Haitian officers have been allowed to show up to re-qualifications late. (See Pl.'s Dep. 28:5-23). An Akal officer, Peterson Acluche, also testified that he saw non-Haitian officers arrive late to re-qualifications. (See Deposition of Peterson Acluche (“Acluche Deposition”) 14:1-9, 66:10-14). Akal states it has no record of any officer being allowed to attend a quarterly firearm re-qualification late. (See Def.'s SMF ¶ 41 (citing Coker Aff. ¶ 45; Seymour Aff. ¶ 25; Elias Aff. ¶ 18)).

         On September 26, 2016, Olmedo sent an email to Baussiquot stating Baussiquot was being removed from the schedule for failure to attend the quarterly firearm re-qualification on September 24, 2016, and notifying him the next qualification was scheduled for Saturday, October 8, 2016. (See Seymour Aff. Ex. A 00412). Baussiquot states while he was notified there was an upcoming qualification set to take place on October 8, 2016, it was not clear to him that he was scheduled to attend that day. (See Pl.'s SMF Resp. ¶ 36 (citing Pl. Aff. ¶ 19)). A Personal Action Report (“PAR”) [ECF No. 32-26] was prepared on September 26, 2016, indicating Baussiquot was being suspended for 10 days because he was a “no call/no show” for quarterly firearm re-qualifications, which the PAR stated “triggered a hardship within the company: having to cover [his] assigned shifts and incurring nonsensical over time at an additional cost to the company.” (Id. (alteration added)). Baussiquot was presented with the PAR on October 4, 2016. (See Pl.'s SMF ¶ 32 (citations omitted); Def.'s SMF Opp'n ¶ 32 (citation omitted)).

         C. Baussiquot is Accused of Handling his Firearm in an Unsafe Manner

         The parties cannot agree about events that transpired on September 26, 2016 beyond the fact that Baussiquot went to the facility to meet with Seymour. (See Def.'s SMF ¶ 46 (citing Seymour Aff. ¶ 34; Pl.'s Dep. 199:20-22)).

         According to Akal, Seymour instructed Plaintiff several times not to bring her his firearm and only to give her his gun locker key (see Def.'s SMF ¶ 48 (citing Seymour Aff. ¶ 38)); but Baussiquot walked to his gun locker and unlocked it (see Id. SMF ¶ 50 (citing Seymour Aff. ¶¶ 39-40)), and then carried his firearm, baton, 3 magazines filled with ammunition, and a loose bullet to Seymour (see id. ¶ 51 (citing Seymour Aff. ¶ 41; Pl.'s Dep. 213:19-214:6, 215:21-24)). Akal claims Plaintiff handled his firearm in an unsafe manner when he removed it from his locker and carried the firearm without encasing it in a holster, gun box, or pouch (see id. ¶ 52 (citing Seymour Aff. ¶ 42)); and without first clearing his firearm with a gun-clearing barrel, in violation of company policy (see id. ¶ 53 (citing Seymour Aff. ¶ 43; Pl.'s Dep. 214:17-20)).

         Baussiquot claims Seymour had asked him to come in to turn in his gun locker key and gun (see Pl.'s Dep. 200:1-22); and once he arrived, he also requested an inventory of his locker (see id. 207:16-23). In the past, when Baussiquot was removed from the schedule, an inventory of his locker was done and he was provided a record of the property he returned to Akal. (See Pl.'s SMF Resp. ¶ 49 (citing Pl.'s Dep. 284:24-285:25)). On September 26, 2016, Seymour declined to send someone to do an inventory of Baussiquot's locker (see Pl.'s Dep. 207:9-15), but did approve Baussiquot's request to go through his locker and show her everything issued to him (see id.). Baussiquot states he was authorized to approach his locker and so did not disregard Seymour's orders. (See Pl.'s SMF Resp. ¶ 51 (citing Pl.'s Dep. 207:9-15)). Baussiquot claims he safely retrieved his gun and walked it over to Seymour. (See id. ¶¶ 51-53 (citing Pl.'s Dep. 207:9-15, 214:7-16); Coker Aff. Ex. G 00461). While Baussiquot admits he carried the gun in his hands (see id. ¶ 54), he testified he carried the gun with Seymour's permission in order to bring the contents of his locker to her for inspection (see id. 207:1-15). Baussiquot also testified he made sure the weapon was not loaded. (See Pl.'s Dep. 214:7-16).

         D. Baussiquot is Terminated

         On October 11, 2016, Olmedo submitted a Disciplinary and Termination Request form and memorandum to Defendant's Employee Relations Manager, Josephine Coker. (See Pl.'s SMF ¶ 33 (undisputed); see also Coker Aff. ¶ 1). In addition to the Disciplinary and Termination Request form and memorandum, Coker received: (1) an Information Report Form prepared by Seymour; (2) an October 4, 2016 witness statement prepared by Baussiquot concerning the September 26, 2016 incident; (3) a Summary of Investigation Report prepared by Jorge Perez with findings from his investigation of the September 26, 2016 incident; (4) Baussiquot's acknowledgements of receipt of various policies and manuals; (5) Baussiquot's PAR for not attending the firearm re-qualification on September 24, 2016; and (6) an October 4, 2016 memo to Baussiquot concerning his removal from the schedule. (See Def.'s SMF ¶ 62 (citing Coker Aff. ¶ 25); Coker Aff. Ex. G, 00452-65). Coker asked Robeson to request additional information from Olmedo about the video surveillance (see Deposition of Josephine Coker (“Coker Dep.”) [ECF No. 24-4] 86:12-16; Coker Aff. ¶ 27), which Olmedo produced in an affidavit (see Coker Aff. Ex. H, 00175-76). Akal claims Coker then conducted an independent review of the documentation. (See Def.'s SMF ¶ 65 (citing Coker Dep. 85:5- 87:25)).

         Ultimately, Coker recommended Baussiquot be terminated, explaining it was “because of his violation of numerous company policies and procedures, in particular, his firearm violations, his unauthorized firearm handling, his failure to follow policies and procedures regarding firearms, and his insubordination.” (Coker Aff. ¶ 29). At the time, Coker had no knowledge of Baussiquot's national origin or FMLA leave, including the reason Baussiquot needed FMLA leave. (See Def.'s SMF ¶ 68 (undisputed)). Coker met with Carol Frost, Akal's then-director of Human Resources, and recommended Baussiquot be terminated. (See Coker Aff. ¶ 30). Frost approved the termination. (See id.). On November 17, 2016, Coker sent a letter informing Baussiquot his employment was terminated effective immediately. (See Def.'s SMF ¶ 67 (citing Coker Aff. ¶¶ 31-33; id. Exs. I & J); see also Termination Letter [ECF No. 32-30]).

         E. Complaint

         On May 23, 2017, Baussiquot filed his Complaint alleging Akal retaliated against him for taking FMLA leave; interfered with his ability to take leave; and terminated him based on his taking FMLA leave, his association to an individual with a disability, and his national origin. (See generally Compl.). On June 30, 2017, Akal filed a Notice of and Petition for Removal [ECF No. 1]. Thereafter, Baussiquot filed an Amended Complaint [ECF No. 13] alleging: (1) retaliation under the FMLA (Count I) (see id. ¶¶ 25-38); (2) interference under the FMLA (Count II) (see id. ¶¶ 39-47); (3) disability discrimination in violation of the Americans with Disabilities Act (Count III) (see id. ¶¶ 48-64); (4) discrimination based on national origin in violation of the Florida Civil Rights Act (“FCRA”) (Count IV) (see id. ¶¶ 65-83); and (5) violation of Title VII of the Civil Rights Act of 1964 for discrimination based on national origin (Count V) (see id. ¶¶ 84-104). Baussiquot seeks declaratory and injunctive relief as well as lost wages and benefits; compensatory damages for emotional distress, embarrassment, and humiliation; reinstatement; and attorneys' fees. (See generally id.).


         Summary judgment shall be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a), (c). In making this assessment, the Court “must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party, ” Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997) (citation omitted), and “resolve all reasonable doubts about ...

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