Cotora v. Lee County et al
Filing
44
OPINION AND ORDER granting in part and denying in part 27 Motion for summary judgment. The motion is granted as to the self-care provision of the FLMA claim and denied as to the family-care provisions of the FMLA. Signed by Judge John E. Steele on 7/23/2012. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CRAIG COTORA, an individual,
Plaintiff,
vs.
Case No.
2:10-cv-775-FtM-29SPC
LEE COUNTY, a political subdivision
of the State of Florida, LEE COUNTY
EMS, a political subdivision of
State of Florida,
Defendants.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Defendant’s CaseDispositive Motion for Summary Judgment and Supporting Memorandum
of Law (Doc. #27) filed on April 30, 2012.
Response (Doc. #28) on May 14, 2012.
Plaintiff filed his
For the reasons set forth
below, the motion is granted.
I.
Summary
judgment
is
appropriate
only
when
the
Court
is
satisfied that “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
R. Civ. P. 56(a).
Fed.
“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.”
Baby Buddies, Inc. v. Toys R Us, Inc., 611
F.3d 1308, 1314 (11th Cir. 2010)(citation omitted).
A fact is
“material” if it may affect the outcome of the suit under governing
law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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); Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d
1256, 1259-60 (11th Cir. 2004).
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, 477 U.S. at 322;
Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11th
Cir. 1999).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party.
Scott v. Harris, 550 U.S. 372, 378 (2007); Tana
v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).
However, “[i]f
reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods Inc. v. Am.’s Favorite Chicken Co., 198 F.3d 815,
819 (11th Cir. 1999)(quoting Warrior Tombigbee Transp. Co. v. M/V
Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983)(finding summary
judgment “may be inappropriate even where the parties agree on the
-2-
basic facts, but disagree about the factual inferences that should
be drawn from these facts”)).
“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.”
Allen v.
Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir. 2007).
II.
Plaintiff Craig Cotora filed a Complaint (Doc. #1) against Lee
County and Lee County Emergency Medical Services2 seeking relief
under the Family and Medical Leave Act of 1993 (FMLA) for unlawful
retaliation for the exercise of his statutory rights. His claim is
based on both the self-care and family-care provisions of the FMLA.
Viewed in the light most favorable to plaintiff, the facts are
as follows: plaintiff began his employment with Lee County on May
29, 2003, as a paramedic and emergency medical technician (EMT).
(Doc. #28, p. 3.)
Plaintiff requested and was granted FMLA leave
on July 28, 2005 to care for his parents.
(Id.)
The approved
family-care leave consisted of the following dates in 2005 and
2006: October 1, October 4, October 7, October 10, December 3,
December 6, May 20, May 23, August 12, August 15, August 18 and
August 21.
2
Lee County is a political subdivision of the State of
Florida.
Fla. Const. Art. VIII § 1(a).
Lee County Emergency
Medical Services is an operational division within Lee County’s
Department of Public Safety.
-3-
On July 2, 2007 and March 27, 2008, plaintiff requested and
was granted FMLA leave for self-care.
(Id.)
The approved self-
care leave consisted of the following dates in 2007 and 2008:
September 15, September 18, September 21, September 24, September
27, September 30, October 3, October 6, October 9, December 3,
December 6, December 9, December 15, April 19, April 22, April 25,
April 28, July 23, July 24, July 28, July 29, October 31, November
6, November 8, November 12, November 15, and November 18.
Lee County’s paramedics and EMTs are subject to a collective
bargaining agreement.
progressive
(Doc. #28-3, p. 20.)
disciplinary
system,
which
Lee County follows a
consists
of:
verbal
counseling, written counseling, suspension, performance improvement
plans, and last chance agreements.
Plaintiff
received
(Doc. #28-2, p. 19.)
counseling
forms
on:
July
2,
2004,
September 6, 2004, July 31, 2006, January 6, 2007, May 6, 2007,
February 8, 2008, July 1, 2008, September 13, 2008, and September
8,
2008.
(Doc.
disciplinary.
#28,
p.
5.)
The
counseling
forms
are
not
(Doc. #28-4, p. 41.)
On September 12, 2007, plaintiff was placed on a performance
improvement plan for: (1) unprofessional conduct as reported by the
Lee County Sheriff’s Office and the Pine Island Fire Department;
(2) unprofessional conduct toward a patient and the patient’s
family; and (3) unprofessional conduct at a private physician’s
office.
(Doc. #28-7.)
Plaintiff was required to attend and
-4-
complete
three
improvement
of
courses
on
harassment
customer/patient
avoidance
services.
training
(Id.)
and
Plaintiff
completed all required classes in connection with his performance
improvement plan.
(Doc. #28-1.)
During this process, plaintiff claims that he was told by his
union representative, Kevin Stephens, that plaintiff was on shift
commands’ “radar” for taking too much time off.
95.)
(Doc. #28-8, p.
Stephens testified that he “can’t say with 100 percent at
this time” whether he told him that.
(Doc. #28-10, p. 10.)
However, Stephens recalled saying something similar to several
employees but could not recall who it was with.
(Id., pp. 10-11.)
Stephens also recalled hearing the term “slacker” applied to
individual employees who were “using sick time and not available
for work, not related to FMLA.”
(Id., p. 53.)
On September 18, 2008, plaintiff was issued a notice of
corrective action for causing a significant delay in responding to
a request for an inter-facility transfer.
(Doc. #27-4, p. 17.)
Plaintiff was terminated on January 15, 2009 as a result of an
incident that occurred on November 30, 2008.
the facts.
The parties dispute
Lee County claims that plaintiff and his partner were
dispatched for a call and after his partner activated the received
and en route button, plaintiff left the ambulance and went into the
station for 5-6 minutes.
(Doc. #27, p. 5.)
Defendant also asserts
that plaintiff, when asked his location, gave a different location
-5-
to match-up with the time difference and that when plaintiff
arrived at the scene, he failed to enter the arrival time and made
up for the error by manually changing the times.
(Id.)
Plaintiff argues that the delay was not 5-6 minutes and cites
to the timing of radio calls to discredit his partner’s testimony.
(Doc. #28, pp. 8-10.)
Plaintiff also asserts that they arrived to
the scene one minute later than the standard response time of eight
minutes and fifty-nine seconds and the delay was a result of their
confusion as to whether another ambulance was going to respond.
(Id.)
Lee County argues that plaintiff’s termination was legitimate
and a direct result of his disciplinary record.
Plaintiff argues
that the termination was retaliation for his FMLA leave.
In
support, plaintiff cites to Lee County’s discipline of a similarly
situated employee, Michelle Teague, who had previously received a
suspension and three warnings.
On July 9, 2008, Teague and her
partner delayed their arrival by seven and a half minutes by
allowing a shift change to occur during an emergency response.
(Doc. #28-17.)
The patient was pronounced dead at the scene.
(Id.) As a result, unlike plaintiff, Teague was not terminated and
instead received a last chance agreement and a 240 hour suspension
on December 2, 2008.
(Id.)
-6-
III.
The FMLA provides eligible employees with up to twelve weeks
of unpaid leave annually if a serious health condition makes the
employee unable to perform the functions of his or her position as
an employee.
29 U.S.C. § 2612(a)(1)(D).
The FMLA also creates a
private right of action for equitable relief and money damages for
employer violations.
29 U.S.C. §§ 2615(a)(1), 2617(a).
The
Eleventh Circuit has recognized that the FMLA creates a retaliation
claim, in which an employee asserts that the employer discriminated
against him because he or she engaged in activity protected by the
FMLA.
Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d
1286, 1293 (11th Cir. 2006); Strickland v. Water Works and Sewer
Bd., 239 F.3d 1199, 1206 (11th Cir. 2001).
Defendant argues that plaintiff’s claim under the self-care
provision of the FMLA is barred by sovereign immunity and, in
support, cites to the recent Supreme Court case, Coleman v. Court
of Appeals of Md., 132 S. Ct. 1327 (2012).
Given the Coleman
opinion and earlier Eleventh Circuit precedent, it is well settled
that Congress has not successfully abrogated the states’ Eleventh
Amendment immunity through the self-care provision of the FMLA.
See Garrett v. Univ. of Ala. Bd. of Trs., 193 F.3d 1214 (11th Cir.
1999), rev’d on other grounds, 531 U.S. 356 (2001); see also
Batchelor v. S. Fla. Water Mgmt. Dist., 242 F. App’x 652 (11th Cir.
-7-
2007).
Therefore, plaintiff’s FMLA self-care retaliation claim
must be dismissed.3
The statutory claim based upon the family-care provisions of
the FMLA is not barred by sovereign immunity.
See Nevada Dept. Of
Human Resources v. Hibbs, 538 U.S. 721 (2003).
In the absence of
direct evidence, the Court applies the burden-shifting framework in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
439 F.3d at 1297.
Hurlbert,
To establish a prima facie case of retaliation,
plaintiff must demonstrate:
(1) that he engaged in statutorily
protected activity under the FMLA; (2) that he experienced an
adverse
employment
connection
between
employment action.
action;
the
and
(3)
protected
that
there
activity
and
is
the
a
causal
adverse
Hurlbert, 439 F.3d at 1297; Wascura v. City of
S. Miami, 257 F.3d 1238, 1248 (11th Cir. 2001)(citing Parris v.
Miami Herald Pub. Co, 216 F.3d 1298, 1301 (11th Cir. 2000)).
If
plaintiff can establish a prima facie case, the burden shifts to
the defendant to articulate a legitimate reason for the adverse
action.
If defendant is able to do so, plaintiff must show that
defendant’s proffered reason for the adverse action was pretextual.
3
Plaintiff asserts that defendant raised the defense of
sovereign immunity for the first time in its Motion for Summary
Judgment. (Doc. #28, p. 16 n. 2.) Sovereign immunity is tied to
the Court’s subject matter jurisdiction and, thus, cannot be waived
under Fed. R. Civ. P. 12. See Jennings v. Mukasey, No. 6:08-cv833-Orl-31GJK, 2008 WL 4371348, at *1 n. 4 (M.D. Fla. Sept. 22,
2008).
-8-
Smith v. BellSouth Telecomms., Inc., 273 F.3d 1303, 1314 (11th Cir.
2001).
In order to establish a claim for retaliation plaintiff must
demonstrate
intentional
discrimination
against
him
for
having
exercised a right under the FMLA.
Hurlbert, 439 F.3d at 1293-94;
Strickland, 239 F.3d at 1207.
“In other words, a plaintiff
bringing a retaliation claim faces the increased burden of showing
that his employer’s actions were motivated by an impermissible
retaliatory or discriminatory animus.”
Defendant
statutorily
does
not
protected
dispute
activity
Id. (citation omitted).
that
under
plaintiff
the
FMLA
engaged
and
experienced an adverse employment action (termination).
that
in
he
Defendant
argues, however, that no causal connection exists between the two
because
plaintiff’s
termination
was
based
on
November 30, 2008 and his disciplinary record.
his
actions
on
Plaintiff responds
that his termination when compared to Lee County’s discipline of a
similarly situated employee, Michelle Teague, for similar conduct
establishes a prima facie case of retaliation.
The causal connection is not supported by the proximity
between the protected conduct and plaintiff’s termination.
temporal
proximity
between
protected
conduct
and
an
“Close
adverse
employment action is generally ‘sufficient circumstantial evidence
to
create
a
genuine
issue
of
material
fact
of
a
causal
connection.’” Hurlbert, 439 F.3d at 1298 (quoting Brungart v.
-9-
BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000)).
Not all temporal proximity is close enough, however, to create an
issue of material fact as to causal connection.
The Eleventh
Circuit has held that “temporal proximity ‘must be very close’ and
‘[a] three to four month disparity . . . is not [close] enough.’”
Watkins v. Sec. Dep’t Of Homeland Sec., 401 F. App’x 461, 467-68
(11th Cir. 2010)(quoting Thomas v. Cooper Lighting, Inc., 506 F.3d
1361, 1364 (11th Cir. 2007)).
Here, the only FMLA leave at issue
was granted on July 28, 2005, and is not in close temporal
proximity
evidence
to
of
plaintiff’s
the
January
treatment
of
a
15,
2009
similarly
termination.
situated
The
employee,
however, is sufficient to create a material disputed fact as to
causal connection.
“The causal connection element is satisfied if
a plaintiff shows that the protected activity and adverse action
were ‘not wholly unrelated.’”
Krutzig v. Pulte Home Corp., 602
F.3d 1231, 1234 (11th Cir. 2010)(quoting Brungart, 231 F.3d at
799).
Accordingly, summary judgment is denied as to the family-
care provisions of the FMLA.
Accordingly, it is now
ORDERED:
1.
Defendant’s Case-Dispositive Motion for Summary Judgment
and Supporting Memorandum of Law (Doc. #27) is GRANTED as to the
self-care provision of the FMLA claim and is DENIED as to the
family-care provisions of the FMLA.
-10-
2.
The Clerk of the Court shall withhold entry of judgment
until the conclusion of the case.
DONE AND ORDERED at Fort Myers, Florida, this
July, 2012.
Copies:
Counsel of record
-11-
23rd
day of
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?