Opinion
Case No. 2:02-cv-301-FtM-29SPC.
October 20, 2004
OPINION AND ORDER
This matter comes before the Court on cross motions for summary judgment. Plaintiff filed his Motion and supporting Memorandum of Law (Doc. #40) and additional material in support thereof (Docs. #41-48). Defendants filed their Motion for Summary Judgment (Doc. #65) and supporting Memorandum of Law (Doc. #66). Both parties have filed responses (Docs. #61 and 77). Plaintiff's Complaint (Doc. #2) alleges claims of violation of the American With Disabilities Act, the Florida Civil Rights Act, and Florida Statute § 440.205.
In its September 28, 2004 Order (Doc. #95), the Court dismissed Counts I and II with prejudice. Therefore, Defendants' Motion for Summary Judgment will be denied as moot as to these counts.
I.
Summary judgment is appropriate only when the Court is 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(c). An issue is "genuine" if there is sufficient evidence such that a reasonable jury could return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it may affect the outcome of the suit under governing law. Id.The moving party bears the burden of identifying those portions of the pleadings, depositions, answers to interrogatories, admissions, and/or affidavits which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Rice-Lamar v. City of Ft. Lauderdale, Fla., 232 F.3d 836, 840 (11th Cir. 2000), cert. denied 534 U.S. 815 (2001). In order to avoid the entry of summary judgment, a party faced with a properly supported summary judgment motion must come forward with extrinsic evidence, i.e., affidavits, depositions, answers to interrogatories, and/or admissions, which are sufficient to establish the existence of the essential elements to that party's case, and the elements on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322; Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11th Cir. 1999). If there is a conflict in the evidence, the non-moving party's evidence is to be believed and all reasonable inferences must be drawn in favor of the non-moving party. Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1164 (11th Cir. 2003).
II.
For summary judgment purposes, the court accepts the following facts: Plaintiff was hired by defendants in November, 2000, as the Director of Purchasing. On August 25, 2001, plaintiff suffered a heart attack while traveling on a plane for personal reasons. Plaintiff's fiancee informed defendants of his heart attack approximately two days after its occurrence, and plaintiff was given a week off with pay. On September 4, 2001, plaintiff was evaluated by his physician, who diagnosed heart disease and instructed him to take the rest of September off from work and then to return on a half-time basis through October, 2001. Plaintiff relayed these medical instructions to defendants on September 4, 2001, and defendants approved plaintiff's medical leave request with pay.On September 6, 2001, plaintiff filed a claim for workers compensation under Florida Statute 440, asserting that his heart attack was due to stress from upper management. Plaintiff's claim included unflattering comments about defendants and their upper management employees. Plaintiff also applied for and ultimately received Social Security disability insurance benefits on the basis of total disability.
Defendants terminated plaintiff's employment on September 12, 2001, and informed him of the termination on September 24, 2001. The reasons defendants now give for the termination are the disparaging comments plaintiff made to the workers compensation carrier concerning upper management, plaintiff's statements that he could no longer work for the company, work deficiencies discovered in plaintiff's performance when his job was covered by other employees during his time off after the heart attack, or some combination of the above.
III.
In Count III Musarra alleges that defendants violated the ADA by failing to provide a reasonable accommodation. Plaintiff asserts that he could perform the essential functions of his job if he was provided a modified work schedule, permitted to be absent while recovering from the heart attack, and then return to work on a part-time basis for a short time before returning on a full-time basis. (Doc. #2, ¶ 33). Plaintiff asserts that defendants initially granted him this accommodation (Doc. #2, ¶ 35), but then revoked the accommodation and terminated his employment. (Doc. #2, ¶ 36). In Count IV, plaintiff asserts that he was discriminated against in violation of the ADA when defendants revoked the initial accommodation and terminated his employment because of his disability. In Count V Musarra alleges the failure to accommodate as a violation of the FCRA, and in Count VI alleges the disability discrimination as a violation of the FCRA. The FCRA is analyzed under the same framework as the ADA, Chanda v. Englehard/ICC, 234 F.3d 1219, 1221 (11th Cir. 2000), so the Court's analysis will focus on the ADA.
A.
The ADA prohibits discrimination "against a qualified individual with a disability because of the disability of such individual. . . ." 42 U.S.C. § 12112(a). The ADA "imposes upon employers the duty to provide reasonable accommodations for known disabilities unless doing so would result in undue hardship to the employer." Davis v. Florida Power Light Co., 205 F.3d 1301, 1305 (11th Cir. 2000), cert. denied, 531 U.S. 927 (2000).
The Eleventh Circuit has recognized that ADA claims are to be construed by the framework set out by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). Lubetsky v. Applied Card Sys., Inc., 296 F.3d 1301, 1305 (11th Cir. 2002). Under this framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802; Lubetsky, 296 F.3d at 1305. To establish a prima facie case of discrimination under the ADA, plaintiff must show that he: (1) is disabled, (2) was a qualified individual at the relevant time, and (3) was subjected to unlawful discrimination because of his disability. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001); Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000). By establishing a prima facie case, the plaintiff creates a rebuttable presumption that the challenged action was motivated by a discriminatory intent.Equal Employment Opportunity Comm'n v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002); see also Burdine, 450 U.S. at 254. The burden then shifts to the defendant to produce a "legitimate, nondiscriminatory reason" for the challenged employment action. McDonnell Douglas, 411 U.S. at 802;Lubetsky, 296 F.3d at 1305. If the defendant articulates one or more such reasons, the presumption of discrimination is rebutted and the burden shifts back to the plaintiff to prove that the reasons offered by the defendant are a pretext for unlawful discrimination. McDonnell Douglas, 411 U.S. at 805; Lubetsky, 296 F.3d at 1305; Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000). "Although the intermediate burdens of production shift back and forth, the ultimate burden of persuading the trier of fact that the employer intentionally discriminated against the employee remains at all times with the plaintiff." Joe's Stone Crabs, 296 F.3d at 1273.
B.
Defendants argue that Summary Judgment is warranted on Counts III through VI because plaintiff "cannot show that he was a qualified individual with a disability who was entitled to a reasonable accommodation or who was protected by the anti-discrimination provisions of the ADA and the FCRA." (Doc. #65, p. 2). This is so, defendants argue, because plaintiff applied for and received social security disability insurance benefits on the basis of total disability as of the date of his heart attack, and applied for (but did not receive) workers' compensation benefits.
A "qualified individual with a disability" is an "individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). "An individual is `qualified' if he, with or without reasonable accommodation, can perform the essential functions and job requirements of the position the individual holds." Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000). Determination of whether plaintiff is an individual "qualified" for a job is a two step process: First, does he satisfy the prerequisites for the position? Second, can he perform the essential functions of his job either with or without reasonable accommodation? Reed v. Heil Co., 206 F.3d 1055, 1062 (11th Cir. 2000); Cramer v. Florida, 117 F.3d 1258, 1264 (11th Cir. 1997).
If plaintiff is unable to perform an essential function of his job, even with an accommodation, he is not a qualified individual. Davis, 205 F.3d at 1305. "`Essential functions' are the fundamental job duties of a position that an individual with a disability is actually required to perform." Earl, 207 F.3d at 1365, citing 29 C.F.R. § 1630.2(n)(2)(1). "Whether a function is essential is evaluated on a case-by-case basis by examining a number of factors." Davis, 205 F.3d at 1305. Consideration must be given to the employer's judgment as to what functions of a job are essential and the employer's written description for that job. See 42 U.S.C. § 12111(8). Other factors to consider include: (1) the amount of time spent on the job performing the function, (2) the consequences of not requiring the incumbent to perform the function, (3) the terms of the collective bargaining agreement, (4) the work experience of past incumbents in the job, and (5) the current work experience of incumbents in similar jobs. See 29 C.F.R. § 1630.2(n)(3); Davis, 205 F.3d at 1305;see also Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1526 (11th Cir. 1997).
The parties have not identified any summary judgment information about plaintiff's job other than that he was hired as the Director of Purchasing; the summary judgment motions have failed to identify the essential functions of Mr. Musarra's job. Rather, defendants assert that because Mr. Musarra "applied for and received disability benefits from the SSA and Premier's private insurance carrier, on the basis that he was totally disabled as of August 25, 2001, Mussara is estopped from claiming that he is a qualified individual who could have performed the essential functions of his job with a reasonable accommodation." (Doc. #66, pp. 9-10).
The Court rejects plaintiff's argument that defendants have not plead estoppel or any other affirmative defenses, and therefore have waived this argument. (Doc. #77, p. 12). On October 15, 2004, the Court entered an Order (Doc. # 104) granting defendants Motion to Amend Their Answer (Doc. #86) to add this as an affirmative defense.
Plaintiff responds that regardless of the retroactive application of his Social Security Disability Benefits back to August 25, 2001, and the application for Jefferson Pilot disability benefits, he had not been classified as disabled at the time defendants terminated his employment. Plaintiff argues that the relevant inquiry is whether defendants believed plaintiff to be permanently disabled at the time defendants terminated his employment. In other words, "[t]he determination as to whether a individual is a qualified individual with a disability must be made at the time of the employment decision." (Doc. #77, p. 12-13).
The Supreme Court has held that receiving social security disability insurance benefits does not automatically estop a plaintiff from claiming discrimination under the ADA. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 805-06 (1999). The analysis is not actually one of estoppel, but rather focuses on whether plaintiff can show that he is a qualified individual with a disability. The Supreme Court held that to defeat a summary judgment motion, a plaintiff who has applied for and received Social Security Disability Insurance benefits must make an explanation as to the apparent inconsistency between his prior claim that he was totally disabled and his current claim that he was a qualified individual who could perform the work with or without an accommodation. The explanation must be sufficient to warrant a reasonable juror's conclusion that, assuming the truthfulness and good faith belief in plaintiff's earlier statement of total disability, plaintiff could nonetheless perform the essential functions of his job, with or without a reasonable accommodation. 526 U.S. at 807. In essence, the Court must decide whether plaintiff's assertions are genuinely in conflict, and if so, evaluate plaintiff's attempt to explain away the inconsistency. Detz v. Greiner Industries, Inc., 346 F.3d 109, 118 (3rd Cir. 2003).
The difficulty with the summary judgment motion is that none of the Social Security documents are included in the record. The Court therefore cannot determine from that source precisely what plaintiff stated in order to obtain his benefits. Although it seems likely that plaintiff's statements are inconsistent with his litigation position, Cleveland makes clear that this is not a foregone conclusion. Indeed, the Court must determine that plaintiff made the inconsistent statements in order forCleveland to apply, not simply that his physician made such statements. E.g., Murphey v. City of Minneapolis, 358 F.3d 1074, 1078-79 (8th Cir. 2004). In light of the record in this case so far, the Court must deny the motion for summary judgment on this ground.
C.
Defendants also argue that summary judgment should be granted as to Counts III through VI because plaintiff failed to "prove that the stated reasons for his termination were pretextual" and that "the evidence clearly demonstrates that Musarra was terminated for legitimate, nondiscriminatory reasons." (Doc. #66, p. 11). Defendants state that Musarra was terminated for "disparaging comments made to the worker's comp carrier concerning upper management, his statements that he could no longer work for the company, and newly discovered work deficiencies." Id.
The Court finds that issues of material fact exist as to whether defendants' proffered reasons for terminating Mr. Musarra were pretextual. A reasonable jury could easily find that defendants simply were mad at plaintiff for filing a workers compensation claim after they had granted a medical leave. The termination was in close proximity to the medical leave, defendants initially granted the medical leave request after being advised of plaintiff's physician's instructions, but terminated plaintiff a week later after learning of his alleged disparaging remarks. Assuming for summary judgment purposes that defendants' evidence of statements by the workers compensation carrier employee to Ms. Rice is admissible, defendants' positions can reasonably be viewed as inconsistent. While on the one hand asserting that they will not prove plaintiff made the disparaging statements, defendants' court papers are replete with statements that he was terminated for making such statements. There is also evidence that defendants did not act in good faith. Defendants were told that plaintiff's physician said he could come back to work first part time and then full time, yet they credited information to the contrary from a workers compensation carrier without ever asking plaintiff if he made such statements or if he could come back to work. Contrary to the facts in Wood v. Green, 323 F.3d 1309 (11th Cir. 2003), the accommodation requested in this case was not an indefinite leave. Issues of material disputed facts preclude summary judgment.
IV
In Count VII, plaintiff asserts defendants violated Fla. Stat. § 440.205 by firing him in retaliation for filing a workers' compensation claim. (Doc. #2, p. 10). Section 440.205 provides:
No employer shall discharge, threaten to discharge, intimidate or coerce any employee by reason of such employee's valid claim for compensation or attempt to claim compensation under [this law].
This "creates a statutory cause of action for a wrongful discharge in retaliation for an employee's pursuit of a workers' compensation claim. . . ." Smith v. Piezo Tech. Prof'l Adm'rs, 427 So. 2d 182, 183 (Fla. 1983). "In order to establish a prima facie case of retaliatory discharge, Plaintiff must show that he (1) engaged in statutorily protected activity, (2) an adverse employment action occurred, and (3) the adverse action was causally related to the Plaintiff's protected activities." Humphrey v. Sears, Robuck, and Co., 192 F. Supp. 2d 1371, 1374 (S.D. Fla. 2002) (internal citations omitted). See also Russell v. KSL Hotel Corp., ___ So. 2d ___ (Fla. 3d DCA 2004). To prevail on this claim plaintiff must show that defendant's desire to retaliate for the workers' compensation claim was a substantial factor in plaintiff's discharge. Allan v. SWF Gulf Coast, Inc., 535 So. 2d 638, 639 (Fla. 1st DCA 1988) (noting that while there may be other reasons for the discharge, the statute prohibits any discharge "by reason of" an attempt to claim compensation). Section 440.205 does not, however, provide a blanket prohibition against the discharge of an employee for legitimate business reasons once the employee has filed or pursued a workers' compensation claim, but prohibits only the retaliatory discharge of an employee for the act of filing a workers' compensation claim. Pericich v. Climatrol, Inc., 523 So. 2d 684, 685 (Fla. 3rd DCA 1988).
Defendants argue that summary judgment is warranted as to the retaliatory termination charge because Musarra did not file a "valid claim" under § 440.205. Florida law has defined a "valid claim of compensation" under this statute to be a claim which is "meritorious," as distinguished from a claim which is "compensable" on the one hand or "frivolous" on the other hand.Smalbein v. Volusia County School Board, 801 So. 2d 169, 170 (Fla. 5th DCA 2001). The Court finds that the material facts are disputed, and that depending upon the factual resolutions a reasonable jury could find the claim to be meritorious and neither compensable nor frivolous. Additionally, it seems clear that plaintiff's conduct was an "attempt to claim compensation" within the meaning of § 440.205. Therefore, summary judgment is denied on this ground.
Defendants also seek summary judgment on Count VI because Musarra cannot establish that the reasons for his termination were pretextual. (Doc. #66, p. 14). Plaintiff on the other hand argues that he is entitled to summary judgment on this claim because "the record clearly establishes that Defendants made the decision to terminate Musarra during the course of learning of statements he allegedly made while attempting to claim worker's compensation benefits (how), after listening to the voice mail, talking with the worker's compensation individual and receiving the computerized printout (when), and because of statements allegedly made by Musarra while engaging in a statutorily protected activity (why)." (Doc. #40, p. 10). The Court concludes that there are material issues of disputed fact regarding whether the decision was pretextual, as discussed above. The Court further concludes that there are material issues of disputed fact whether the decision was substantially motivated by the workers compensation claim. Neither party is entitled to summary judgment.
Accordingly, it is now
ORDERED:
1. Defendants' Motion for Summary Judgment (Doc. #65) is DENIED.
2. Plaintiff's Motion for Summary Judgment (Doc. #40) is DENIED.