United States District Court, S.D. Florida
CECILIA M. ALTONAGA UNITED STATES DISTRICT JUDGE
CAUSE came before the Court on the Defendant, AKAL
Security, Inc.'s Motion for Summary Judgment [ECF No.
and Plaintiff, Herbert Baussiquot's Motion for
Partial Summary Judgment [ECF No. 25]. The Court has
carefully considered the parties' written submissions and
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).
Baussiquot Took Intermittent FMLA Leave
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)).
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)).
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).
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)).
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).
Baussiquot Missed a Quarterly Firearm
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)).
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)).
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)).
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)).
Baussiquot is Accused of Handling his Firearm in an Unsafe
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.
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)).
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).
Baussiquot is Terminated
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)).
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]).
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.).
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 ...