Russ v. NF Windsor, LLC

Filing 30

ORDER granting 9 Windsor's Motion for Summary Judgment. The Clerk shall enter judgment in favor of Defendant NF Windsor, LLC and against Plaintiff Eulinda Russ, terminate all pending motions and deadlines, and close the file. Signed by Judge Timothy J. Corrigan on 4/25/2017. (SEJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
EULINDA RUSS,
Plaintiff,
v.

Case No. 3:14-cv-1174-J-32JRK

NF WINDSOR, LLC,
Defendant.
ORDER
This disability discrimination case is before the Court on Defendant NF
Windsor, LLC’s Case-Dispositive Motion for Summary Judgment (Doc. 9), to which
Plaintiff Eulinda Russ has responded (Doc. 22). With the Court’s permission (Doc. 27),
Windsor filed a reply (Doc. 28).
I.

BACKGROUND1
In October 2010, Windsor, a health and rehabilitation center, hired Russ as a

certified nursing assistant (“CNA”). According to Windsor’s official Job Description, a
CNA performs activities of daily living for the residents assigned, including providing
personal care, grooming, and hygiene; assisting residents to and from the bathroom;
ambulating residents; and assisting residents in and out of chairs and wheelchairs.2

Russ agrees that “the basic facts are substantially as [Windsor] presents
them.” (Doc. 22 at 2). Thus, the Court has taken most of the background from
Windsor’s motion for summary judgment (Doc. 9), supplementing it when appropriate.
1

The corporate name on the job description is not Windsor, but Gulf Coast
Health Care, which the Court presumes is an affiliate or parent of Windsor. Russ does
2

(Doc. 9-4). The physical requirements include “walking, reaching, climbing, bending,
and lifting,” among other actions. Id. In addition, the job description includes a safety
provision, which requires that CNAs “adhere to safety rules and regulations.” Id.
Patient sitters are CNA assigned to residents who need individual attention from the
CNA, who must always be prepared to lift residents in and out of bed and wheelchairs.
(Doc. 9 at 2).
When she was hired, Russ informed Windsor that she had been injured in a
work-related accident during her most recent past employment. Windsor regularly
gave Russ time off to go to doctor’s appointments related to her injury during her
tenure there. On Friday, July 20, 2012, Russ’s worker’s compensation physician placed
her on medical restrictions, prohibiting her from lifting or carrying more than ten
pounds, bending, squatting, or twisting.3 (Doc. 9-8). Russ did not report her medical
restrictions to Windsor, and that weekend, she worked several shifts as a CNA
assigned as a patient sitter. (Doc. 9-11).
On Monday, July 23, 2012, Russ used Windsor’s copier to photocopy the
worker’s compensation form detailing her medical limitations and left the document
in the machine. That day, Samantha Brown, one of Russ’s supervisors, found the
document on the copier and brought it to Administrator Melanie McWhite. Brown
called Russ at home to tell her she had found the document and not to return to work

not contest that this is the relevant job description for a Windsor CNA.
Both parties refer to the healthcare provider as a “physician,” though the form
states that the provider was an “advanced registered nurse practitioner” (“ARNP”).
(Doc. 9-8). The distinction does not affect the Court’s analysis.
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the following day. The accidental discovery of Russ’s worker’s compensation form was
the first Windsor had learned of her medical restrictions. According to Windsor, Russ’s
actions “placed both Windsor’s residents and herself at risk” because she was
“restricted by her workers’ compensation doctor from performing her duties as of the
time of the shifts that she worked as a patient sitter.” (Doc. 9 at 2).
On July 24, 2012, Windsor suspended Russ for “conduct regarded as improper,”
specifically her failure “to notify nursing administration of work restrictions,” a
violation of Policy Number 11. (Doc. 9-10). According to the Gulf Coast Health Care
Human Resources Policies and Procedures Manual, violations of Policy Number 11 are
Category I violations and include “conduct that would be widely regarded as improper
or inappropriate in a work group (to include, but not limited to resident abuse or
neglect) or serious violations of Corporate Compliance Policies and Privacy Rule
Policies.”4 (Doc. 9-5). Windsor investigated the incident, including interviewing Russ
and obtaining a written statement from her regarding her actions. (Doc. 9-9).
Following the investigation, Windsor concluded that Russ had committed a Category
I offense, which constitutes a “most serious” offense that may subject an employee to
discharge on a first offense.5 (Doc. 9-5). Windsor terminated Russ’s employment on
July 27, 2012. (Doc. 9-11).

On October 26, 2010, Russ signed a form acknowledging that she received a
copy of the Gulf Coast Health Care Associate’s handbook. (Doc. 9-7).
4

The policy states, “Because of the seriousness of the nature of these offenses,
the associate should be immediately suspended pending investigation, and if
found to have committed the offense, terminated.” (Doc. 9-5 at 1) (emphasis in
original).
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On June 13, 2014, Russ filed a two-count complaint in the Circuit Court of the
Eighth Judicial Circuit in and for Bradford County, Florida. (Doc. 2). Windsor removed
the case pursuant to 28 U.S.C. §§ 1331 and 1441. (Doc. 1). In her complaint, Russ
alleges that Windsor unlawfully discriminated against her in violation of the
Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., and the Florida
Civil Rights Act (“FCRA”), §§ 760.01-11, Fla. Stat. (2000) (Count I); and retaliated
against her for exercising her rights under Florida’s Workers’ Compensation Law, §
440.205, Fla. Stat., (Count II). (Doc. 2). On August 15, 2016, the Court remanded
Count II for lack of subject matter jurisdiction, as retaliation claims brought under §
440.205 are non-removable. (Doc. 17). Thus, Windsor’s motion for summary judgment
(Doc. 9) as to Count I is ripe for review.
II.

STANDARD OF REVIEW
Summary judgment is proper where “there is no genuine issue as to any

material fact” and “the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(c). “The burden of demonstrating the satisfaction of this standard lies with the
movant, who must present pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, that establish the absence of
any genuine material, factual dispute.” Branche v. Airtran Airways, Inc., 342 F.3d
1248, 1252-53 (11th Cir. 2003) (internal quotations omitted). An issue is genuine when
the evidence is such that a reasonable jury could return a verdict for the non-movant.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).
In determining whether summary judgment is appropriate, a court must draw
inferences from the evidence in the light most favorable to the non-movant and resolve
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all reasonable doubts in that party’s favor. See Centurion Air Cargo, Inc. v. United
Parcel Serv. Co., 420 F.3d 1146, 1149 (11th Cir. 2005). However, “Rule 56 mandates
the entry of summary judgment, upon motion, against a party who fails to make a
showing sufficient to establish an element essential to his case on which he bears the
burden of proof at trial.” Schechter v. Ga. State Univ., 341 F. App’x 560, 562 (11th Cir.
2009) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
III.

ANALYSIS
A.

ADA Discrimination

To prevail on an ADA discrimination claim, a plaintiff must establish that (1)
she had a disability, (2) she was qualified to perform her job, (3) she was subjected to
an adverse employment action, and (4) her disability was a substantial or motivating
factor that prompted the defendant to take the adverse employment action. Collado v.
United Parcel Serv. Co., 419 F.3d 1143, 1152 n.5 (11th Cir. 2005).
After a plaintiff has shown a prima facie case of discrimination and, thereby,
has raised the presumption of discrimination, the burden of production shifts to the
employer to articulate a legitimate, nondiscriminatory reason for its actions. See Rojas
v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002); Combs v. Plantation Patterns, 106
F.3d 1519, 1528 (11th Cir. 1997). The employer “need not persuade the court that it
was actually motivated by the proffered reasons.” Texas Dept. of Community Affairs
v. Burdine, 450 U.S. 248, 254-55 (1981); Chapman v. AI Transport, 229 F.3d 1012,
1024 (11th Cir. 2000). “If the employer successfully articulates such a reason, then the
burden shifts back to the plaintiff to show that the proffered reason is really pretext

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for unlawful discrimination.” Corning v. LodgeNet Interactive Corp., 896 F. Supp. 2d
1138, 1144 (M.D. Fla. 2012) (citation omitted).
Even assuming arguendo that Russ has made out a prima facie case for
disability discrimination, there is no dispute that Windsor proffered a legitimate, nondiscriminatory reason for terminating Russ—namely, she failed to report her work
restrictions to Windsor in violation of its policies and continued to work as a CNA,
caring for residents in a position that required frequent lifting in violation of her lifting
and carrying restrictions of ten pounds. (Doc. 9 at 10). As a result of Russ’s actions,
Windsor determined that Russ put both herself and its residents at risk of harm. Id.
The record supports Windsor’s proffered reason. The notes in the official
Windsor memorandum memorializing the termination specify that Russ was
terminated “for failure to notify supervisor of physical restrictions” and “could have
caused potential harm to Associate and/or resident.” (Doc. 9-11). Indeed, McWhite
testified that Russ’s termination “was not based on the fact that she was on workers’
comp; it was based on her failure to report her limitations to Windsor.” (Doc. 9-2 at
13:15-18). Further, McWhite testified that if Russ had disclosed the limitations that
she could not lift, she would not have been fired. (Id. at 32:2-5). To the contrary,
McWhite explained that Windsor offers medical leave, FMLA, or other available
alternatives to support employees through whatever restrictions they have at the
time. (Id. at 9-17). This legitimate, non-discriminatory reason for Russ’s termination
would rebut any presumption of discrimination and require Russ to demonstrate that

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this reason was mere pretext. See Alvarez v. Royal Atl. Developers, Inc., 610 F.3d
1253, 1264 (11th Cir. 2010).
To show pretext, the plaintiff must present sufficient evidence “to permit a
reasonable fact finder to conclude that the reasons given by the employer were not the
real reasons for the adverse employment decision.” Gerard v. Bd. of Regents of State
of Ga., 324 F. App’x 818, 826 (11th Cir. 2009) (quoting Combs v. Plantation Patterns,
106 F.3d 1519, 1528 (11th Cir. 1997)). Further, “conclusory allegations, without more,
are insufficient to show pretext.” Id. (citing Mayfield v. Patterson Pump Co., 101 F.3d
1371, 1376-77 (11th Cir. 1996)). “Instead, the plaintiff must meet the proffered reason
‘head on and rebut it.’” Id. (quoting Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th
Cir. 2000) (en banc)). A reason is not pretext for discrimination unless it is shown both
that the reason was false, and that discrimination was the real reason. St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). The Court must “not act as a superpersonnel department that reexamines an entity’s business decisions; rather we limit
our inquiry to whether the employer gave an honest explanation of its behavior.”
Thomas v. CVS/Pharmacy, 336 F. App’x 913, 914 (11th Cir. 2009) (internal quotations
and citations omitted).
Russ provides some reasons for why Windsor’s explanation is mere pretext for
disability discrimination. First, she notes that “only two days passed prior to [Brown]
learning of the restrictions and that the punishment imposed was overly harsh in
response to the alleged infraction.” (Doc. 22 at 13). Russ also points out that she
worked for Windsor for over a year and a half without suffering any discipline and

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won the employee of the month award a month before her termination. (Id.; Doc. 9-1
at 109:11-13). In addition, Russ highlights that her failure to report the restrictions
was an “innocent oversight,” for “she did not understand that she was under
restrictions until faxing or copying the document on Monday, July 23, 2012.” (Doc. 22
at 13). Finally, Russ emphasizes that no residents were injured during her shifts as a
patient sitter. (Id. at 14).
Notably, Russ cites no case law to support any of these arguments. More
importantly, Russ fails to present evidence that Windsor’s proffered reason for firing
her—the failure to report the restrictions, which physically endangered Russ and the
residents, as well as exposed Windsor to liability—is “unworthy of credence.” Alvarez,
610 F.3d at 1265-66. The evidence shows that Windsor knew about Russ’s doctor’s
appointments related to her injury and always let her have time off to see her
physician. (Doc. 9-1 at 81:3-88:13). It was only when Windsor learned that Russ had
worked as a patient sitter while on medical restrictions, without having informed
Windsor of those limitations, that Windsor concluded a violation of company policy
occurred. (Doc. 9-2 at 20:17-22; 30:3-5). To the extent Russ asserts that no one was
actually injured during the shifts she worked while on restrictions, that argument
misses the point. Russ testified that a patient sitter is there “to keep the patient safe,”
and “had to have the ability to lift [and] hold.” (Doc. 9-1 at 149:20-150:6). The
possibility that someone could have been injured had Russ been called upon to lift a
resident while working as a patient sitter constitutes reason enough in Windsor’s eyes
to immediately suspend and ultimately terminate her under its policies, and it is not

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this Court’s “role to second-guess the wisdom of an employer’s business decisions.”
Alvarez, 610 F.3d at 1266.
To show pretext, the plaintiff must “meet [the proffered] reason head on and
rebut it, and . . . cannot succeed by simply quarreling with the wisdom of that reason.”
Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160, 1163 (11th Cir. 2006)
(citations omitted). Russ’s argument that Windsor’s decision to terminate her was
“overly harsh” is a quintessential example of a plaintiff quarreling with the wisdom of
an employer’s reason. Therefore, even if Russ had met her prima facie case, summary
judgment would be appropriate in Windsor’s favor because Russ failed to demonstrate
that Windsor’s reason for termination was pretextual.
B.

Failure to Reasonably Accommodate a Disability

The ADA defines the phrase “discriminate against a qualified individual on the
basis of disability” to include the failure to make “reasonable accommodations to the
known physical or mental limitations of an otherwise qualified individual with a
disability who is an . . . employee, unless such covered entity can demonstrate that the
accommodation would impose an undue hardship on the operation of the business of
such covered entity.” 42 U.S.C. § 12112(b)(5)(A). Thus, to establish a reasonable
accommodation claim under the ADA, a plaintiff must show that (1) she had a
disability, (2) there was a reasonable accommodation which would have allowed her
to perform the essential functions of the job, and (3) the defendant failed to provide
her with a reasonable accommodation. See Mazzeo v. Color Resolutions Int’l, LLC, 746
F.3d 1264, 1268 (11th Cir. 2014). If the plaintiff satisfies the requisite elements, the
defendant then has an opportunity to show that providing a reasonable
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accommodation would impose an “undue hardship on the operation of [its] business.”
42 U.S.C. § 12112(b)(5)(A).
Here, Windsor is entitled to judgment as a matter of law because—based on the
evidence in the record—Russ cannot establish the third element of her claim: that
Windsor failed to provide her with a reasonable accommodation. For employment
discrimination claims under the ADA, to establish that an employer failed to provide
a reasonable accommodation, a plaintiff must first show that she made a specific
demand for an accommodation. See Warren v. Volusia Cnty., Florida, 188 F. App’x
859, 863 (11th Cir. 2006) (“An employee’s failure to request a reasonable
accommodation is fatal to the prima facie case; the duty to provide a reasonable
accommodation is not triggered unless a specific demand for an accommodation has
been made.”) (internal citations and quotation marks omitted).
In her response, Russ does not even argue that she made a specific request for
an accommodation. Instead, she states “upon receipt of Plaintiff’s lifting restrictions,
Defendant did nothing to engage in the interactive process with her to determine what
accommodations would be appropriate.” (Doc. 22 at 10). Russ ignores the fact that the
initial burden to request an accommodation lies with her, not Windsor, and points to
no evidence that she did so. See Quitto v. Bay Colony Golf Club, Inc., No. 206CV-286FTM-29DNF, 2007 WL 2002537, at *9 (M.D. Fla. July 5, 2007) (“Plaintiff bears the
burden of identifying an accommodation and demonstrating that it would enable him
to perform the essential functions of his job.”); Hickmon v. TECO Energy, No. 8:10CV-1147-T-30MAP, 2012 WL 39582, at *5 (M.D. Fla. Jan. 9, 2012) (defendant was

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entitled to summary judgment on claim that it failed to reasonably accommodate
plaintiff’s disabilities because plaintiff failed to identify record evidence reflecting that
she identified to or requested from defendant a specific accommodation, which was
both reasonable and would have allowed plaintiff to perform the essential functions of
her job). Indeed, Russ was asked in her deposition whether she ever asked “for any
type of accommodations so [she] could perform [her] job other than for the time off for
[her] appointments,” to which she responded “no.” (Doc. 9-1 89:16-25). As such, Russ’s
failure to accommodate claim fails as a matter of law.6
Accordingly, it is hereby
ORDERED:
1.

Defendant NF Windsor, LLC’s Case-Dispositive Motion for Summary

Judgment (Doc. 9) is GRANTED.
2.

The Clerk shall enter judgment in favor of Defendant NF Windsor, LLC

and against Plaintiff Eulinda Russ, terminate all pending motions and deadlines, and
close the file.
DONE AND ORDERED in Jacksonville, Florida the 25th day of April, 2017.

sj
Copies:
The scenario might have been different if Russ had disclosed her restrictions
and then sought accommodations. But she did not.
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Counsel of record

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