Gonzales v. Pasco County Board of County Commissioners

Filing 38

ORDER: Defendant's Motion for Summary Judgment 21 is GRANTED. Plaintiff's Motion to Amend the Complaint to Conform to the Evidence 34 is DENIED. Defendant's Unopposed Motion to Extend Pre-Trial Statement Deadline 37 is DENIED as moot. The Clerk is directed to enter final judgment in favor of Defendant and against Plaintiff. The Clerk is directed to close this case and terminate any pending motions as moot. Signed by Judge James S. Moody, Jr on 1/17/2013. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JERRY GONZALES,
Plaintiff,
v.

Case No. 8:11-cv-1397-T-30TGW

PASCO COUNTY BOARD OF COUNTY
COMMISSIONERS,
Defendant.
_____________________________________/

ORDER
THIS CAUSE comes before the Court upon Defendant’s Motion for Summary
Judgment (Dkt. 21), Plaintiff’s Response to Defendant’s Motion for Summary Judgment
(Dkt. 28), Plaintiff’s Motion to Amend the Complaint to Conform to the Evidence (Dkt. 34),
Defendant’s Response in Opposition to Plaintiff’s Motion to Amend the Complaint to
Conform to the Evidence (Dkt. 36), and Defendant’s Unopposed Motion to Extend Pre-Trial
Statement Deadline (Dkt. 37). The Court, having reviewed the motions, responses, record
evidence, and being otherwise advised in the premises, concludes the motion for summary
judgment should be granted, the motion to amend the complaint should be denied, and the
motion to extend the pretrial statement should be denied as moot.

BACKGROUND FACTS1
Plaintiff Jerry Gonzales (“Gonzales”) initiated this action by filing a four-count
complaint against Defendant Pasco County Board of County Commissioners (“Pasco
County”). In Count I, Gonzales alleges Pasco County violated his rights under the Family
Medical Leave Act (“FMLA”) by retaliating against him for attempting to exercise his
FMLA rights. In Count II, Gonzales alleges Pasco County violated Florida Statute § 440.205
by discharging him in retaliation for exercising his workers’ compensation rights. Gonzales
withdraws his racial discrimination claims in Counts III and IV in his response to Pasco
County’s motion for summary judgment.
Pasco County employed Gonzales as a grounds keeper and crew leader from 1993
until December 27, 2010. While working at Sam Pasco Park in Zephyrhills, Gonzales
injured himself while attempting to dismount from a tractor on July 28, 2010. He was taken
to Florida Hospital where he was diagnosed with bulging discs in his lower back. He then
timely completed and submitted his work related accident report and treated with workers’
compensation doctors for several months.
On November 3, 2010, Dr. Delgao, Gonzales’ treating workers’ compensation doctor,
deemed Gonzales at maximum medical improvement, finding that “he should certainly return
back to work with regular duty without restrictions, but using good body mechanics. He is

1

These facts are taken in a light most favorable to Gonzales, the non-movant on the summary
judgment motion.
Page 2 of 22

being discharged from my care.” (Dkt. 22-1, Ex. 15). Dr. Delgado suggested that Gonzales
seek treatment from his primary doctor for his continued complaints of lower back pain.
Around this same time, Pasco County transferred Gonzales to the west side of the
county under Parks and Recreation Manager Martin Paventi. Gonzales called Paventi to
advise that he had been released back to work from Dr. Delgado and to inform Paventi that
he was still in pain. The record is disputed whether Paventi told Gonzales that he would be
put on sick leave until further notice or whether Paventi would mark him down for sick leave
only for the dates of November 3rd, 4th, and 5th. However, it is not disputed that Pasco
County’s policy was for the employee to keep his supervisor informed about absences, and
Paventi testified that he told Gonzales to call every week with an update.
Gonzales sought treatment from his primary care physician, Dr. Finnerty. On
November 5, 2010, she gave Gonzales work restrictions, including “no lifting, running, or
walking, etc. limit driving to 10 miles,” and noted that he was “basically limited to sedentary
duties until cleared by Dr. Willey.” (Dkt. 33-1, Ex. 3). Dr. Finnerty referred Gonzales to Dr.
Willey for an orthopedic evaluation. Per Paventi’s request, Gonzales faxed Dr. Finnerty’s
restrictions to Paventi’s office. Paventi informed Gonzales that there was no position
currently open that could accommodate these light duty work restrictions.
On November 9, 2010, Gonzales presented to Dr. Willey who imposed work
restrictions of no driving over thirty minutes and referred him to a pain management
specialist for injections. (Dkt. 33-1, Ex. 4). Gonzales faxed a copy of these examination
notes to Kim Clawson, Paventi’s secretary. The record is unclear what date Clawson actually
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confirmed she received the faxes; however, it is not disputed that she received them no later
than November 16, 2010.
Around November 11, 2010, Gonzales exercised his one-time change of doctors for
his workers’ compensation claim, and was scheduled for an appointment with Dr.
Maniscalco for December 20, 2010. Between his initial workers’ compensation release by
Dr. Delgado on November 3, 2010, and his second workers’ compensation release by Dr.
Maniscalco on December 20, 2010, Gonzales was considered by Pasco County to be on
medical leave, not on workers’ compensation or FMLA leave.
On December 6, 2010, Dr. Weisman, a pain management specialist recommended by
Dr. Willey, suggested Gonzales have injections in his back for pain but that he wait until
after his workers’ compensation appointment with Dr. Maniscalco.
Because Gonzales had not returned to work, Pasco County sent FMLA paperwork to
Gonzales on December 7, 2010. The FMLA paperwork indicated that the deadline for
returning the medical certification was December 23, 2010. Gonzales received the FMLA
paperwork on December 9, 2010, and he attempted in the next several weeks to have one of
his physicians complete the FMLA certification. Unfortunately, Gonzales never submitted
any of the FMLA paperwork or medical certification to Pasco County.
Gonzales initially tried to have Dr. Finnerty fill out the FMLA forms, but she
declined, informing him that his “treating physician” must fill out the medical certification.
Gonzales next asked Dr. Willey to fill out the FMLA paperwork. On December 14, 2010,
Donna from Dr. Willey’s office called Gonzales to ask why Dr. Willey needed to fill out the
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certification and she requested that someone from Pasco County’s Risk Management contact
Dr. Willey regarding the paperwork. It is undisputed that Gonzales called Risk Management
on December 15, 2010, and requested Jane Calano to call Dr. Willey’s office regarding the
FMLA forms. However, as Calano testified in her deposition, the Department of Labor
forbids an employer from speaking to an employee’s physician regarding FMLA leave. As
such, Calano did not return Gonzales’ call or fulfill his request to call Dr. Willey.
On December 15, 2010, Donna again contacted Gonzales and instructed him to have
Dr. Weisman fill out the FMLA paperwork because he was the physician administering
treatment. Gonzales testified that Dr. Weisman declined to sign the FMLA forms until after
Dr. Maniscalco’s appointment because he believed injections might not be necessary. At this
point, Gonzales attempted to reach Barbara DeSimone in Personnel; however, she was not
available and did not return his call before his termination on December 27, 2010.
On December 20, 2010, Dr. Maniscalco saw Gonzales for his second workers’
compensation evaluation. Like Dr. Delgado, Dr. Maniscalco found Gonzales had “reached
maximum medical improvement and is capable of full gainful employment without
limitation. He has sustained 0% impairment of the whole body as a result of the industrial
injury of 7/28/10.” (Dkt. 22-1, Ex. 19). Gonzales testified that neither Dr. Maniscalco nor
Pasco County informed him he was required to return to work following this second
evaluation.
Gonzales did not return to work on December 21st, 22nd, or 23rd, nor did he contact
Paventi to inform him he was out on sick leave. On December 27, 2010, the next business
Page 5 of 22

day, Pasco County sent Gonzales a termination letter informing him that it considered him
to have resigned his position in accordance with Section A5.10 of the Career Service Manual
because of his three consecutive absences from workdays without approved leave. (Dkt. 221, Ex. 20).
Gonzales received the termination letter on December 30, 2010. There is no evidence
that Dr. Weisman completed the FMLA certification or that Gonzales ever submitted any
FMLA paperwork to Pasco County, either before or after December 27, 2010.
Gonzales filed the instant lawsuit against Pasco County on June 24, 2011. The Court
entered a Scheduling Order setting the dates for completion of fact discovery and submission
of dispositive motions before the pretrial conference set for February 5, 2013. Pasco County
moved for summary judgment on November 19, 2012. Gonzales moved to amend the
complaint to add a FMLA interference claim on December 17, 2012.
SUMMARY JUDGMENT STANDARD OF REVIEW
Motions for summary judgment should be granted only when the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits,
show 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); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). The existence of some factual disputes between the litigants will not defeat an
otherwise properly supported summary judgment motion; “the requirement is that there be
no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986) (emphasis in original). The substantive law applicable to the claimed causes of action
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will identify which facts are material. Id. Throughout this analysis, the court must examine
the evidence in the light most favorable to the non-movant and draw all justifiable inferences
in its favor. Id. at 255.
Once a party properly makes a summary judgment motion by demonstrating the
absence of a genuine issue of material fact, whether or not accompanied by affidavits, the
nonmoving party must go beyond the pleadings through the use of affidavits, depositions,
answers to interrogatories and admissions on file, and designate specific facts showing that
there is a genuine issue for trial. Celotex, 477 U.S. at 324. The evidence must be
significantly probative to support the claims. Anderson, 477 U.S. at 248-49 (1986).
This Court may not decide a genuine factual dispute at the summary judgment stage.
Fernandez v. Bankers Nat’l Life Ins. Co., 906 F.2d 559, 564 (11th Cir. 1990). “[I]f factual
issues are present, the Court must deny the motion and proceed to trial.” Warrior Tombigbee
Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983). A dispute about a
material fact is genuine and summary judgment is inappropriate if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248;
Hoffman v. Allied Corp., 912 F.2d 1379 (11th Cir. 1990). However, there must exist a
conflict in substantial evidence to pose a jury question. Verbraeken v. Westinghouse Elec.
Corp., 881 F.2d 1041, 1045 (11th Cir. 1989).

Page 7 of 22

DISCUSSION
I.

FMLA Retaliation Claim Pursuant to 29 U.S.C. § 2615(a)(2)
The FMLA entitles an eligible employee to take twelve workweeks of leave during

any twelve-month period because of a serious health condition that makes the employee
unable to perform the functions of the position of such employee.

29 U.S.C. §

2612(a)(1)(D). In addition to taking twelve weeks of leave at once, an employee may take
intermittent leave in separate blocks of time because of a single qualifying medical reason.
29 C.F.R. § 825.202(a). To preserve these rights to take leave, the FMLA creates two types
of claims: interference claims, in which an employee alleges that his employer denied him
a benefit guaranteed under the Act, 29 U.S.C. § 2615(a)(1), and retaliation claims, in which
an employee asserts that his employer discriminated against him because he engaged in
activity protected by the Act. 29 U.S.C. § 2615(a)(2).
Retaliation and interference claims have different standards of proof. To state an
interference claim, a plaintiff must demonstrate that he was entitled to a benefit under the
FMLA and the employer denied him the benefit. Strickland v. Water Works & Sewer Bd. of
the City of Birmingham, 239 F.3d 1199, 1206-07 (11th Cir. 2006). The employer’s motives
are irrelevant. Id. at 1208. In contrast, to succeed on a retaliation claim a plaintiff must show
that the employer acted with discriminatory or retaliatory animus when the plaintiff was
discharged. Id. at 1207.
An employee’s right to FMLA leave is subject to the certification requirements of 29
U.S.C. § 2613. 29 U.S.C. § 2612. Employers “may require that a request for leave . . . be
Page 8 of 22

supported by a certification issued by the health care provider of the eligible employee.” 29
U.S.C. § 2613(a). A certification is sufficient if it states
(1) the date on which the serious health condition commenced; (2) the
probable duration of the condition; (3) the appropriate medical facts within the
knowledge of the health care provider regarding the condition; . . . (4)(B) for
purposes of leave under section 2612(a)(1)(D) of this title, a statement that the
employee is unable to perform the functions of the position of the employee.
29 U.S.C. § 2613(b).
Congress requires that an “employee shall provide, in a timely manner, a copy of such
certification to the employer.” 29 U.S.C. § 2613(a). Employers must provide notice of such
a requirement and of the anticipated consequences for failing to comply every time an
employee requests FMLA leave. 29 C.F.R. § 825.305(d). When the leave is unforeseeable,
employers must allow employees at least fifteen (15) calendar days to comply with the
request for certification. 29 C.F.R. § 825.305(b). Specifically, “[t]he employee must provide
the requested certification to the employer within 15 calendar days after the employer’s
request, unless it is not practicable under the particular circumstances to do so despite the
employee’s diligent, good faith efforts.” Id. The Department of Labor also mandates that
“[t]he employer shall advise an employee whenever the employer finds a certification
incomplete, and provide the employee a reasonable opportunity to cure any deficiency.” 29
C.F.R. § 825.305(d). Yet, “[a]n incomplete certification is not the same as a certification that
is non-existent or that has not been provided to the employer.” Baldwin-Love v. Elec. Data
Sys. Corp., 307 F. Supp. 2d 1222, 1234 (M.D. Ala. 2004)

Page 9 of 22

In the absence of direct evidence of discrimination by the employer, the burdenshifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S.Ct. 1817, 36 L.Ed.2d 668 (1973), is applied in evaluating FMLA retaliation claims. To
state a claim of retaliation an employee must first establish a prima facie case of retaliatory
discharge. An employee must show that: (1) he engaged in statutorily protected conduct; (2)
he suffered an adverse employment action; and (3) there is a causal connection between the
protected conduct and the adverse employment action. Strickland, 239 F.3d at 1207. Once
an employee establishes a prima facie case, the burden of production shifts to the employer
“to articulate a legitimate reason for the adverse action.” Hurlbert v. St. Mary's Health Care
Sys., Inc., 439 F.3d 1296, 1297 (11th Cir. 2006).
If the employer does so, the employee must then show that the employer’s proffered
reason was pretextual by presenting evidence “sufficient 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.” Id. at 1298 (quoting Chapman v. AI Transp., 229 F.3d 1012, 1024
(11th Cir. 2000)). To show pretext, the employee may rely on evidence that he already
produced to establish his prima facie case. Martin v. Brevard Cnty. Pub. Sch., 543 F.3d
1261, 1268 (11th Cir. 2008).
Upon review of the record, the Court concludes that Pasco County is entitled to
summary judgment on the FMLA retaliation claim because Gonzales cannot establish a
prima facie case. Furthermore, even assuming Gonzales could set forth one, Pasco County

Page 10 of 22

articulated a legitimate, non-discriminatory reason for Gonzales’ termination and Gonzales
failed to establish this reason was pretext for discrimination.
The controlling issue is whether Gonzales engaged in protected activity under the
FMLA to satisfy the first element of a plaintiff’s prima facie case.2 At least one court has
held a request for FMLA leave is qualifying activity. See Beveridge v. HD Supply
Waterworks, L.T.D., 2009 WL 4755370, *11 (M.D. Ga. Dec. 7, 2009) (“As to the first
element, a request for FMLA qualifying medical leave is protected activity under the
FMLA.”). However, in Beveridge v. HD Supply Waterworks, L.T.D., the defendant fired the
plaintiff within hours of the plaintiff’s request for leave. Id. at *4. Thus the analysis does
not translate to a situation, such as here, where the employee was terminated after being
allowed more than the statutorily-mandated fifteen calendar days and still failed to comply
with the certification requirements. Moreover, the record reflects that Pasco County
voluntarily sent Gonzales the FMLA paperwork, not that Gonzales requested FMLA leave.
Failure to meet the certification requirements renders the employee’s absence
unprotected by the FMLA. See, e.g., Cash v. Smith, 231 F.3d 1301, 1307 (11th Cir. 2000);
Baldwin-Love, 307 F. Supp. 2d at 1229-30; Young v. Russell Corp., 2008 WL 5412782, *3
(M.D. Ala. Dec. 29, 2008); 29 C.F.R. § 825.313(b) (“If the employee never produces the
certification, the leave is not FMLA leave.”); but cf. Clark v. Macon Cnty. Greyhound Park,
Inc., 727 F. Supp. 2d 1282, 1292-93 (M.D. Ala. 2010) (denying summary judgment because

2

Gonzales failed to cite to any legal authority for the proposition that his phone calls with
Pasco County concerning his FMLA paperwork constitute protected activity under the FMLA.
Page 11 of 22

plaintiff requested FMLA leave and presented sufficient proof that she took time off because
of a serious health condition since her physician completed the FMLA certification but her
employer had misinformed her about where to submit it).

Furthermore, “[i]f these

uncertified, hence unprotected, absences violate an attendance policy, an employer may
terminate an employee without violating the FMLA.” Baldwin-Love, 307 F. Supp. 2d at
1229-30.3
To prove he engaged in statutorily protected activity, Gonzales must show that Pasco
County was aware that his absence qualified as leave under the FMLA. See Lee v. U.S. Steel
Corp., 450 Fed. App’x 834, 838 (11th Cir. 2012) (affirming district court’s grant of summary
judgment because plaintiff failed to show he engaged in statutorily protected activity or that
his termination was casually related to any protected activity).
Gonzales admits Pasco County sent him FMLA paperwork and a certification form
on December 7, 2010. (Dkt. 22 at 112:23-113:9). It is also undisputed that Gonzales knew
December 23, 2010, was the deadline for returning the certification. (Dkt. 23 at 37:24-38:1;

3

Gonzales, although not arguing such, possibly could survive a motion for summary
judgment based on a FMLA interference claim due to equitable estoppel. He testified that Holly,
Risk Management’s secretary, told him on December 15, 2010, “to get the FMLA paperwork in as
soon as possible.” Dkt. 22, p.120:8. See Townsend-Taylor v. Ameritech Serv., Inc., 523 F.3d 815,
817 (7th Cir. 2008) (“It can be ‘interference’ - or, what amounts to the same thing, a basis for
postponing the submission deadline by operation of the doctrine of equitable estoppel - to provide
an employee with misleading instructions that cause him to miss a critical deadline for seeking
FMLA leave.”). However, Gonzales does not allege an interference claim, does not argue for
equitable estoppel, and Holly’s statement is not contradictory to the established December 23, 2010
deadline. Furthermore, the Eleventh Circuit has not adopted the estoppel doctrine in the FMLA
context. Martin v. Brevard Cnty. Pub. Sch., 543 F.3d 1261, 1266 (11th Cir. 2008).
Page 12 of 22

38:20-22).4 As of December 27, 2010, the date of his termination, the only evidence Pasco
County had of Gonzales’ alleged “serious medical condition” was that two workers’
compensation doctors had released him back to work, he failed to return any certification for
FMLA leave, and he had been absent from work without proper authorization for three
consecutive workdays in violation of Pasco County’s Career Service Manual. Consequently,
Gonzales’ unprotected absences in violation of Pasco County’s attendance policy permitted
Pasco County to terminate his employment without violating the FMLA. See Baldwin-Love,
307 F. Supp. 2d at 1229-30.
Even assuming Gonzales used diligent efforts to return the certification within the
fifteen-day period and should be entitled to an extension of his FMLA deadline, noticeably
absent from the record is evidence that Gonzales ever received certification from any doctor
for FMLA leave. (“My understanding, [Dr.] Weisman said that they was going to fill out the
letter and send them in. I don’t know if they did or didn’t.” (Dkt. 23 at 45:22-24)). Nor did
Gonzales submit any medical documentation in support of his “serious medical condition”
that would permit a jury to find he qualified for FMLA leave. There is simply no material
disputed facts from which a reasonable jury could find he engaged in protected activity
because there is no evidence Pasco County knew he suffered a “serious medical condition.”
Thus, Gonzales has failed to set forth a prima facie showing of FMLA retaliation.
4

Alongside acknowledging the deadline of December 23, 2010, Gonzales states in his
deposition that he was under the impression that he should “[j]ust get [the FMLA paperwork] in as
soon as I can.” (Dkt. 23 at 39:6-13 and at 52:5-7). This statement, although perhaps relevant to
prove a FMLA interference claim, is not relevant for a FMLA retaliation claim. See supra note 2.
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However, even assuming Gonzales could set forth a prima facie case, his FMLA
retaliation claim must still fail. Pasco County articulated a legitimate, non-discriminatory
reason for Gonzales’ termination: Gonzales violated Section A5.10 of the Career Service
Manual by being absent without leave from his position for three consecutive workdays,
December 21-23, 2010. To rebut this legitimate, non-discriminatory reason, Gonzales must
show this proffered reason is pretext. “[A] reason cannot be proved to be a pretext for
discrimination unless it is shown both that the reason was false, and that discrimination was
the real reason.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993) (internal
quotations omitted) (emphasis in original).
“A plaintiff is not allowed to recast an employer’s proffered nondiscriminatory
reasons or substitute his business judgment for that of the employer. Provided that the
proffered reason is one that might motivate a reasonable employer, an employee cannot
succeed by simply quarreling with the wisdom of that reason.” Chapman v. AI Transport,
229 F.3d 1012, 1030 (11th Cir. 2000). In order to show pretext and “meet the reason head
on and rebut it,” id., a plaintiff may point to “weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions” in the employer’s proffered reason. Brooks v. Cnty.
Comm’n of Jefferson Cnty., 446 F.3d 1160, 1163 (11th Cir. 2006).
Gonzales’ burden is to show that Pasco County’s reason is both false and he was
actually terminated because of his request for FMLA leave. To rebut Pasco County’s
legitimate reason, Gonzales points to the “inconsistency” of the termination letter stating he
had been absent without approval since November 19, 2010, even though he was paid sick
Page 14 of 22

leave for a month following that date. The termination letter states he violated the Career
Service Manual by being absent for three consecutive workdays without proper
authorization. Gonzales was released back to work by a second workers’ compensation
doctor on December 20, 2010. He was then considered absent without approval for the next
three business days. Pasco County terminated Gonzales on the next business day, December
27, 2010. The termination letter references November 19, 2010, as the last date Gonzales
had contacted his crew leader, Martin Paventi. Gonzales had an ongoing obligation to
maintain consistent contact with Paventi while out on sick leave. He did not. However,
Pasco County continued to pay him sick leave until the second workers’ compensation doctor
determined whether he could return to work. These facts do not show pretext because Pasco
County’s proffered reason is not false. More important, Gonzales fails to point to anything
in the record, such as an email or letter, that evinces Pasco County actually terminated him
because of his “request” for FMLA leave.
As such, there are no disputed material facts and Pasco County’s motion for summary
judgment as to the FMLA retaliation claim is granted.
II.

Retaliatory Discharge Pursuant to Fla. Stat. § 440.205
Section 440.205, Florida Statutes, provides that “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 the Workers’ Compensation Law.”
An employee may assert a cause of action for retaliatory discharge if an employer violates
this section. Borque v. Trugreen, Inc., 389 F.3d 1354, 1357 (11th Cir. 2004). To state a claim
Page 15 of 22

under this section for retaliatory discharge, a plaintiff must present evidence that: (1) he
engaged in statutorily protected expression; (2) he was adversely affected by an employment
decision; and (3) there was a causal connection between the two. Drago v. Jenne, 453 F.3d
1301, 1307 (11th Cir. 2006). “Only after the plaintiff makes this prima facie case of
discriminatory retaliation does the burden shift to the defendant to rebut the presumption of
retaliation by producing legitimate reasons for the adverse employment action.” Id.
Typically, “a plaintiff may use a showing of ‘close’ temporal proximity between the
protected expression and the adverse employment action to establish causation.” Posada v.
James Cello, Inc., 135 Fed. App’x 250, 252 (11th Cir. 2005). However, in the absence of
any other evidence of causation, the Eleventh Circuit has held that a three month proximity
between a protected activity and an adverse employment action is insufficient to create a jury
issue on causation. Drago, 453 F.3d at 1308. Furthermore, “mere temporal proximity of
[plaintiff’s] constructive resignation to his requests for workers’ compensation cannot
establish the prima facie case required for a retaliation claim where the company took no
affirmative action to remove [plaintiff] from the payroll until [plaintiff] abandoned his job.”
Borja v. Hines Nurseries, Inc., 172 Fed. App’x 927, 929 (11th Cir. 2006).
Pasco County concedes that Gonzales engaged in statutorily protected conduct by
filing a workers’ compensation claim based on his injury of July 28, 2010, and subsequently
suffered an adverse employment action by being terminated on December 27, 2010. Pasco
County disputes there is a casual connection between the two because (1) the five-month gap
establishes there was no temporal proximity and (2) Gonzales’ failure to return to work
Page 16 of 22

following his release back to work by two workers’ compensation doctors was an intervening
cause that severed any connection. Finally, Pasco County argues that it would be entitled to
summary judgment because Gonzales cannot show any evidence that its legitimate, nondiscriminatory reason was pretext for retaliation.
The record reflects that Gonzales collected workers’ compensation benefits until
November 3, 2010, when Dr. Delgado released him back to work. From November 3, 2010,
to December 20, 2010, Gonzales was on sick leave, not workers’ compensation benefits.
Gonzales exercised his right to a one-time change of doctor and second workers’
compensation evaluation on December 20, 2010. The second workers’ compensation
physician, Dr. Maniscalco, also released Gonzales back to work and found him at zero
impairment. Gonzales was absent without approval for the next three days and finally
terminated on December 27, 2010.
Clearly, if counting from the time he claimed workers’ compensation benefits in July
2010, Gonzales cannot rely upon temporal proximity to establish causation due to the five
month lapse. The statute’s language says “claim for compensation or attempt to claim
compensation,” not medical evaluation, so the December date should not be used to calculate
temporal proximity. But even assuming that the second evaluation was a “statutorily
protected activity,” Gonzales fails to point to any affirmative action by Pasco County to
terminate him until after he constructively resigned by being absent without approval in
violation of the Career Service Manual. Borja, 172 Fed. App’x at 929. Therefore, he fails
to show causation and to establish a prima facie case.
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Lastly, assuming Gonzales could demonstrate a prima facie case, for the same reasons
set forth in the FMLA retaliation section, he fails to show Pasco County’s legitimate, nonretaliatory reason is pretext.
As such, there are no disputed material facts and Pasco County’s motion for summary
judgment as to the retaliatory discharge based on a workers’ compensation claim is granted.
MOTION TO AMEND STANDARD OF REVIEW
Gonzales and Pasco County address the motion to amend the complaint under Federal
Rule of Civil Procedure 15(a). However, the Court finds that Rule 16(b) governs the instant
motion because of the procedural posture of the case, although the Court finds that the
outcome is the same under the more liberal Rule 15(a) standard of review. Because Gonzales
fails to show good cause for his delay in bringing this motion, Gonzales’ motion to amend
the complaint is denied.
Federal Rule of Civil Procedure 16 requires a district court to enter a scheduling order
that dictates the time within which the parties must join additional parties, amend the
pleadings, file motions, and complete discovery. Fed. R. Civ. P. 16(b). “When a party asks
to amend a pleading after the applicable scheduling order deadline has passed . . . the party
is in effect seeking to modify the scheduling order deadlines.” Auto-Owners Ins. Co. v. Ace
Elec. Serv., Inc., 648 F. Supp. 2d 1371, 1375 (M.D. Fla. 2009) (citing Sosa v. Airprint Sys.,
Inc., 133 F.3d 1417, 1419 (11th Cir. 1998). The scheduling order “may be modified only for
good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b). “This good cause standard
precludes modification unless the schedule cannot ‘be met despite the diligence of the party
Page 18 of 22

seeking the extension.’” Sosa, 133 F. 3d at 1418 (citing Fed. R. Civ. P. 16 advisory
committee’s note)
Under the Eleventh Circuit’s case law, the key to establishing good cause for an
untimely amendment is demonstrating diligence. Auto-Owners Ins. Co., 648 F. Supp. 2d at
1375. Three factors are relevant to this inquiry: “(1) whether the plaintiff failed to ascertain
facts prior to filing the complaint and to acquire information during the discovery period; (2)
whether the information supporting the proposed amendment was available to the plaintiff;
and (3) even after acquiring information, whether the plaintiff delayed in asking for
amendment.” Id. (quoting Pioneer Int’l (USA), Inc. v. Reid, 2007 WL 4365637, at *2 (M.D.
Fla. Dec. 12, 2007)); see Sosa, 133 F. 3d at 1418-19.
DISCUSSION
The Court’s scheduling order of August 31, 2011, provides hard deadlines for thirdparty joinders, fact discovery, expert disclosures, expert discovery, and dispositive motions.
As quoted above, it also says that “motions to amend any pleading . . . after issuance of this
[order] are disfavored.” The Court admits this phrase is less clear than the other deadlines;
however, it should be entitled to the same weight for purposes of the heightened standard of
“good cause” under Rule 16 because logic dictates the deadline to amend a pleading must
precede a fact discovery deadline. See Wasdin v. Cheetah Transp., LLC, 2006 WL 3534969,
at *1 (M.D. Ga. Dec. 7, 2006) (stating that “the deadline for motions to amend is typically
30 days before the discovery completion deadline” and noting “[t]his distinction is important,
because if Plaintiff’s motion is treated as complying with the Court-mandated deadlines, Rule
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15 of the Federal Rules of Civil Procedure applies, but if the motion is deemed to be in
violation of the scheduling order, Rule 16 applies”).
Gonzales made this motion to file an amended complaint on December 17, 2012, over
a month after the dispositive motion deadline on November 5, 2012. Fact discovery has been
closed since September 1, 2012. The trial is scheduled for the March 2013 trial term. If
Gonzales is permitted to file a new version of his complaint, that would certainly render the
scheduling order a nullity and force the trial date back in order to allow Pasco County the
opportunity to conduct discovery on this new FMLA interference claim.
Gonzales plainly fails the good cause analysis because he cannot demonstrate
diligence. Gonzales asserts that discovery uncovered “new” facts that support his theory of
FMLA interference. But those same “new” facts, that Pasco County failed to return his
phone calls, are alleged in his complaint and Gonzales chose not to raise an interference
claim at that time. After his first deposition on May 25, 2012, Gonzales surely was aware
of the facts he now argues support his interference claim. Finally, after his second deposition
on October 12, 2012, he undisputedly knew these “new” facts. Yet he failed to move to
amend the complaint during the fact discovery period. This shows a disregard for the
information available to him. Moreover, he delayed filing this motion to amend until after
the dispositive motion deadline. Thereby, Gonzales has not carried his burden to amend the
scheduling order and his motion to amend the complaint is denied.
Even assuming the scheduling order lacks the clarity sufficient to warrant Rule 16
review, Gonzales is not entitled to amendment under Federal Rule of Civil Procedure 15(a).
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Under Rule 15, a court should give leave to amend freely “when justice so requires.” Fed.
R. Civ. P. 15(a). “The district court, however, need not ‘allow an amendment (1) where there
has been undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by
amendments previously allowed; (2) where allowing amendment would cause undue
prejudice to the opposing party; or (3) where amendment would be futile.’” Corsello v.
Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005) (quoting Bryant v. Dupree, 252 F.3d
1161, 1163 (11th Cir. 2001)).
Gonzales unduly delayed in moving to amend his complaint. At this stage, it would
be unduly prejudicial to Pasco County to allow amendment because discovery would have
to be reopened and Gonzales’ deposition taken for a third time. Pasco County has prepared
for trial which is set for March 2013. Thus, even under the more liberal Rule 15(a) standard,
Gonzales still is not entitled to amendment.
It is therefore ORDERED AND ADJUDGED that:
1.

Defendant’s Motion for Summary Judgment (Dkt. 21) is GRANTED.

2.

Plaintiff’s Motion to Amend the Complaint to Conform to the Evidence (Dkt.
34) is DENIED.

3.

Defendant’s Unopposed Motion to Extend Pre-Trial Statement Deadline (Dkt.
37) is DENIED as moot.

4.

The Clerk of Court is directed to enter final judgment in favor of Defendant
and against Plaintiff.

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5.

The Clerk of Court is directed to close this case and terminate any pending
motions as moot.

DONE and ORDERED in Tampa, Florida on January 17, 2013.

Copies furnished to:
Counsel/Parties of Record
S:\Odd\2011\11-cv-1397.sumjud&amendcomplaint.frm

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