Aparicio v. Creative Glass Products, Inc.

Filing 36

ORDER granting in part and denying in part 28 Defendant Creative Glass Products, Inc.'s Motion for Summary Judgment The Motion is granted as to Counts I and II of the Complaint, but it is denied as to Count III. Plaintiff Victor Aparicio's Motion to Dismiss Without Prejudice Counts I and II of the Complaint 27 is DENIED as moot. Signed by Judge Sheri Polster Chappell on 1/13/2015. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
VICTOR APARICIO,
Plaintiff,
v.

Case No: 2:14-cv-467-FtM-38DNF

CREATIVE GLASS PRODUCTS,
INC., a Florida Corporation.
Defendant.
/
ORDER1
This matter is before the Court on Defendant Creative Glass Products, Inc.'s
Motion for Summary Judgment (Doc. #28) filed on December 8, 2014. Plaintiff Victor
Aparicio filed an Opposition to Motion for Summary Judgment (Doc. #33) on December
30, 2014. The Court held a Preliminary Pretrial Conference on January 12, 2015, at which
time the parties argued the Motion for Summary Judgment. Thus, this matter is ripe for
review.
BACKGROUND
This case arises from Plaintiff's former employment with Defendant. On March 19,
2012, Plaintiff suffered a workplace injury. (Doc. #1 at ¶ 11). The next day, he reported

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not affect the opinion of the Court.

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his injury to Defendant and stated that he would pursue worker's compensation benefits.
(Id.at ¶ 12). Defendant discharged Plaintiff that same day. (Id.).
Sometime later, Plaintiff filed a charge of discrimination with the United States
Equal Employment Opportunity Commission ("EEOC"). On June 12, 2014, the EEOC
issued Plaintiff a Right to Sue Letter, finding reasonable cause to believe a violation had
occurred. (Doc. #1-1).
Plaintiff commenced this three-count action against Defendant on August 18,
2014. In Counts I and II, he alleges Defendant discriminated against him based on a
perceived disability in violation of the Americans With Disabilities Act ("ADA") and the
Florida Civil Rights Act ("FCRA"). (Doc. #1 at ¶¶ 15-42). In Count III, Plaintiff asserts
Defendant violated Florida Statute § 440.205 by discharging him in retaliation for pursuing
worker's compensation benefits. (Id. at ¶ 43-56).
On October 14, 2014, Defendant moved to dismiss the Complaint for lack of
subject matter jurisdiction. (Doc. #16). Defendant argued it was not an "employer" under
the ADA and FCRA because it has always employed fewer than fifteen (15) employees.
(Id. at 1-2). The Court rejected Defendant's challenge to the Court's subject matter
jurisdiction because the ADA's numerical employee threshold is not a prerequisite to
jurisdiction. (Doc. #22 at 5).
On December 8, 2014, Plaintiff filed a Motion to Dismiss Without Prejudice Counts
I and II of the Complaint. (Doc. #27). Although titled a motion to dismiss, Plaintiff actually
seeks a dismissal of Counts I and II (disability discrimination) under Rule 41 of the Federal
Rule of Civil Procedure. Plaintiff concedes that Defendant employs less than fifteen (15)
employees, and thus is not an employer under the ADA and FCRA. (Id. at 1). Although

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the parties agree to dismiss Counts I and II, they disagree on doing so with or without
prejudice. Plaintiff wants to dismiss without prejudice, whereas Defendant wants to
dismiss with prejudice. (Id. at 2).
Also pending is Defendant's Motion for Summary Judgment.

(Doc. #28).

Defendant's motion starts with Counts I and II given the parties inability to agree on
whether to dismiss these claims with or without prejudice. In addition, Defendant moves
for summary judgment on Count III, the retaliatory discharge claim under Florida Statute
§ 440.205.
Against this backdrop, the Court will discuss Defendant's Motion for Summary
Judgment.
DISCUSSION
A. Legal standard
"The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and [she] is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(a). An issue is genuine if there is sufficient evidence such that
a reasonable jury could return a verdict for either party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Similarly, an issue of fact is material if it may affect the
outcome of the suit under governing law. Id.
The moving party bears the burden of showing the absence of any genuine issue
of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In deciding
whether the moving party has met this initial burden, courts must review the record and
draw all reasonable inferences from the record in a light most favorable to the non-moving
party. See Whatley v. CNA Ins. Co., 189 F.3d 1310, 1313 (11th Cir. 1999). Once the

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court determines the moving party has met this burden, the burden shifts to the nonmoving party to present facts showing a genuine issue of fact exists to preclude summary
judgment. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).

"The evidence presented cannot consist of conclusory allegations, legal

conclusions or evidence which would be inadmissible at trial." Demyan v. Sun Life
Assurance Co. of Can., 148 F. Supp. 2d 1316, 1320 (S.D. Fla. 2001) (citing Avirgan v.
Hull, 932 F.2d 1572, 1577 (11th Cir. 1991)). Failure to show sufficient evidence of any
essential element is fatal to the claim and the court should grant summary judgment. See
Celotex, 477 U.S. at 322-23. Conversely, if reasonable minds could find a genuine issue
of material fact then summary judgment should be denied. See Miranda v. B & B Cash
Grocery Store, Inc., 975 F.2d 1518, 1532 (11th Cir. 1992).
B. Counts I and II
Defendant argues it is entitled to judgment as a matter of law on Counts I and II
because it is not a covered employer under the ADA and FCRA. (Doc. #28 at 5). The
ADA defines an "employer" as "a person engaged in an industry affecting commerce who
has 15 or more employees for each working day in each of 20 or more calendar weeks in
the current or preceding calendar year, and any agent of such person[.]" 42 U.S.C.
§ 12111; see also Fla. Stat. § 760.02 (same). Defendant's longtime president and
manager, Lance M. Carney and Beverly Carney, respectively, affirm that Defendant
employed no more than seven (7) employees at the time Plaintiff's claim arose. (Doc.
#28-1). Plaintiff does not contest this point. (Doc. #33 at 3; Doc. #27 at 1). The Court,
therefore, finds no material issue of fact in dispute that Defendant employed more than
15 employee at the time Plaintiff's claim arose. Since the ADA and FCRA do not (and

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cannot) cover Defendant for those claims, the Court grants summary judgment in favor
of Defendant on Counts I and II of the Complaint.
C. Count III
Next, Defendant moves for summary judgment on Count III, the retaliatory
discharge claim under Florida Statute § 440.205.

(Doc. #28 at 5).

According to

Defendant, Plaintiff waived his right to assert this claim because he signed a Settlement
Agreement and Release (the "Agreement") in 2012, that released Defendant from "all
workers' compensation and bodily injury claims arising from the workplace accident[.]"
(Id.; Doc. #28-2).
Plaintiff opposes summary judgment. He argues that he signed the Agreement
thinking he was only waiving the right to challenge the settlement amount that he received
for his worker's compensation benefits. (Doc. #33 at 3). In other words, he allegedly did
not know the Agreement's release language barred him from bringing other actions
against Defendant such as the instant claim. (Id. at 3, 5). For that reason, Plaintiff avers
a material issue of fact exists as to whether he intended to waive his right to bring the
retaliatory discharge claim under Florida Statute § 440.205. (Id. at 4-6).
At this current juncture, the Court finds that Defendant's Motion for Summary
Judgment is premature. It is well settled that "summary judgment should not be granted
until the party opposing the motion has had an adequate opportunity for discovery."
Snook v. Trust Co. of Ga. Bank, 859 F.2d, 865, 870 (11th Cir. 1988); see also Blumel v.
Mylander, 919 F. Supp. 423, 428 (M.D. Fla. 1996) (stating, "district courts should not grant
summary judgment until the non-movant 'has had an adequate opportunity for discovery"
(citations omitted)). Discovery in this case has barely begun, and the Court has not issued

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a Case Management and Scheduling Order. See Blumel, 919 F. Supp. at 423 (denying
plaintiff's motion for summary judgment as 'blatantly premature" after finding that "there
ha[d] been inadequate time for discovery"); see also Sanborn v. Jagen Pty. Ltd., No. 8:10cv-142, 2010 WL 173076, at *3 (M.D. Fla. Apr. 28, 2010) (denying defendant's motion for
summary judgment as premature where it was filed a week after it filed its answers and
affirmative defenses).

Defendant even acknowledged that its Motion for Summary

Judgment was premature at the Preliminary Pretrial Conference. Since Plaintiff has not
had a meaningful opportunity to develop the facts through discovery as to Count III, the
Court denies Defendant's Motion for Summary Judgment. Defendant, however, may file
an amended motion for summary judgment on Count III after the parties have engaged
in discovery.
Accordingly, it is now
ORDERED:
1. Defendant Creative Glass Products, Inc.'s Motion for Summary Judgment
(Doc. #28) is GRANTED in part and DENIED in part. The Motion is granted
as to Counts I and II of the Complaint, but it is denied as to Count III.
2. Plaintiff Victor Aparicio's Motion to Dismiss Without Prejudice Counts I and II of
the Complaint (Doc. #27) is DENIED as moot.
DONE and ORDERED in Fort Myers, Florida this 12th day of January, 2015.

Copies: All Parties of Record

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