Oliver v. TECO Energy, Inc.
Filing
43
ORDER granting 24 Defendant TECO Energy, Inc.'s Motion for Summary Judgment. The Clerk is directed to enter Judgment in favor of Defendant and thereafter to CLOSE THE CASE. Signed by Judge Virginia M. Hernandez Covington on 12/26/2013. (CH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JUANITA MARIA OLIVER,
Plaintiff,
v.
Case No. 8:12-cv-2117-T-33TBM
TECO ENERGY, INC.,
Defendant.
________________________________/
ORDER
Defendant TECO Energy, Inc.’s Motion for Summary Judgment
(Doc. # 24), filed on August 26, 2013, is before the Court.1
Plaintiff Juanita Maria Oliver filed a Response in Opposition
to the Motion for Summary Judgment (Doc. # 40) on September
12, 2013, and TECO filed a Reply (Doc. # 42) on September 30,
2013.
For the reasons that follow, the Court grants the
Motion for Summary Judgment.
I.
Background
A.
Oliver’s Duties at TECO
Oliver
worked
for
TECO
in
various
customer
service
representative positions from October of 2004, until she was
terminated in July of 2010.
1
(Doc. # 2 at ¶ 4).
She began her
Defendant indicates that it is “Tampa Electric Company,”
not “TECO Energy, Inc.” and that “Plaintiff was at no time an
employee of TECO Energy.” (Doc. # 24 at 1, n.1). The Court
conforms the pleadings to the evidence and substitutes Tampa
Electric Company as the Defendant. Just as Defendant has done
in its submissions, the Court shall refer to Tampa Electric
Company as “TECO” herein.
career with TECO as a Customer Sales Professional and was
promoted to Lead I on July 29, 2009. (Sugden Decl. Doc. # 36
at ¶ 8). In both positions, she was responsible for answering
telephone calls from internal and external customers. (Id. at
¶ 3).
Oliver was required to perform research of customer
records and utilize appropriate systems and resources to
respond effectively to customer inquires.
(Doc. # 36-1).
Part of Oliver’s job description required that she “have a
strong customer service aptitude, the ability to stay calm,
level-headed and resilient, and have the ability to convey
empathy as well as professionalism.” (Id.).
B.
First Referral to EAP
During the course of her employment, Oliver was referred
to
TECO’s
occasions.
2008.
Employee
Assistance
Program
on
a
number
of
Her first referral to the EAP was in February of
At that time, Oliver informed one of her supervisors,
Matthew Coleman, that co-worker Denise Bernal was giving her
“dirty looks,” and had bumped into her in the hallway.
(Coleman Decl. Doc. # 28 at ¶ 3).2
TECO investigated Oliver’s
complaints by talking to Oliver, Bernal, Coleman, and Tina
2
Oliver has also alleged that Bernal hit and kicked her
on multiple occasions. (Oliver Dep. Vol. 2 Doc. # 26 at 59;
Wood Decl. Doc. # 38 at ¶ 3).
2
Findley (Bernal’s supervisor). (Id. at ¶ 4).
TECO determined
that Oliver’s accusations against Bernal were untrue but
nonetheless advised Bernal to treat Oliver with cordiality.
(Findley Decl. Doc. # 29 at ¶ 4). Coleman advised Oliver that
TECO had resolved the situation. (Coleman Decl. Doc. # 28 at
¶ 4). Oliver was not satisfied with TECO’s resolution and
refused to return to work.
(Findley Decl. Doc. # 29 at ¶ 5).
At that point, Raven Woodard, TECO’s Human Resources Manager,
referred
Oliver
to
TECO’s
Employee
Assistance
Program
provider, Dr. Gary Wood. (Woodward Decl. Doc. # 39 at ¶ 3).
On February 20, 2008, Dr. Wood noted that testing revealed a
psychiatric symptomatology suggestive of a mood disorder and
paranoia. (Doc. # 38-1).
Oliver was also treated by Dr. Bala
K. Rao, who “found that Oliver was hypomanic.” (Rao Decl. Doc.
# 35 at ¶ 3). Dr. Wood cleared Oliver to return to work on
March 17, 2008. (Wood Decl. Doc. # 38 at ¶¶ 5). Neither Dr.
Wood
nor
Dr.
Rao
shared
Oliver’s
confidential
medical
information with TECO. (Id. at ¶ 20; Rao Decl. Doc. # 35 at ¶
9).
C.
Second Referral to EAP
On October 21, 2008, Oliver was again referred to the
Employee Assistance Program.
This time, Oliver indicated to
her co-worker Wayne Guthrie that the sight of Denise Bernal
3
made Oliver want to stab her. (Guthrie Decl. Doc. # 31 at ¶
3).
Guthrie reported this threat to his supervisor, Tina
Mary, as well as to TECO’s Human Resources department. (Id.).
TECO asked Oliver if she ever threatened another employee and
she responded that she threatened to stab other employees on
multiple occasions. (Oliver Dep. Vol. 1 Doc. # 26 at 66-67).
With this, TECO required Oliver to once again participate in
its Employee Assistance Program with Dr. Wood. (Coleman Decl.
Doc. # 28 at ¶ 6).
Oliver was also treated by Dr. Rao. (Rao
Decl. Doc. # 35 at ¶ 4).
Oliver was cleared to return to work
on November 10, 2008. (Doc. # 38-1).
D.
Third Referral to EAP
On December 8, 2008, TECO directed Oliver to see Dr. Wood
again in connection with the Employee Assistance Program
because
Oliver
made
further
accusations
that
Bernal
was
stalking her, which TECO determined were unfounded. (Wood
Decl. Doc. # 38 at ¶ 10).
Dr. Wood performed an assessment
and later authorized Oliver to return to work.
E.
Fourth Referral to EAP and Positive Discipline
On July 29, 2009, Oliver was promoted to Lead I. However,
reports of and complaints about Oliver’s unusual workplace
behavior continued.
On August 17, 2009, October 2, 2009, and
October 9, 2009, Sugden received complaints about Oliver’s
4
rude and disrespectful attitude toward fellow TECO employees.
(Sugden Decl. Doc. # 36 at ¶¶ 9, 11, 13).
In addition on
September 24, 2009, Sugden received a customer complaint
regarding Oliver. (Id. at ¶ 10).
Oliver received feedback
from Sugden and Tina Mary regarding her tone, word choice, and
handling of the customer call, which Oliver rejected all the
while
maintaining
that
she
addressed
the
customer
call
appropriately. (Id.; Doc. # 36-5).
Thereafter,
on
October
8,
2009,
Oliver
caused
a
disruption at the call center when she refused to follow a
TECO policy, stating “I have a problem doing it,” and that she
would follow her own judgment instead. (Sugden Decl. Doc. # 36
at ¶ 12; Doc. # 36-7).
On October 15, 2009, Oliver had an
episode at her desk where she “slam[med] her fists on her
desk, squeal[ed] and put her head down while beating on the
desk.” (Sugden Decl. Doc. # 36 at ¶ 14; Doc. # 36-9).
During
the same incident, Oliver exclaimed: “I can’t take these
people anymore” and spoke to her supervisor “very nastily.”
(Id.).
On the same day, coworker India Banks reported a
complaint to Sugden that Oliver was rude and disrespectful to
her team members. (Sugden Decl. Doc. # 36 at ¶ 14; Doc. # 3610).
Thereafter,
on
October
27,
5
2009,
Oliver
snatched
a
sandwich from a coworker’s hand, threw it on the ground, and
then stomped away with her fists clenched. (Joselyn Nieves
Decl. Doc. # 34 at ¶ 3; Doc. # 34-1; Sugden Decl. Doc. # 36 at
¶ 15). On the same day, three of Oliver’s co-workers reported
to Sugden that they were in fear of Oliver and “what she may
do to herself and/or others.” (Sugden Decl. Doc. # 36 at ¶ 15;
Doc. # 36-11).3
These incidents and others culminated in Oliver being
issued a “Written Reminder” and being mandated to the Employee
Assistance Program. (Sugden Decl. Doc. # 36 at ¶ 19; Doc. #
36-14).4
Among
other
things,
TECO’s
Written
Reminder
indicated:
Maria, we have had recent discussions and have
reviewed calls concerning complaints from internal
and external customers that stated you [have] been
rude to them.
We have also discussed you
disrupting other team members with your off target
behaviors. . . . As a result of these off target
behaviors, you are being placed on Positive
Discipline-Written Reminder.
This will be in
effect for 180 days.
(Doc. # 36-14).
3
On October 29, 2009, Oliver attended a training class
entitled “Respect in the Workplace.” (Sugden Decl. Doc. # 36
at ¶ 16).
4
TECO has a Positive Discipline system in place for all
of its employees to ensure fair treatment, and includes: Oral
Reminder, Written Reminder, Decision Making Leave, and
finally, Termination. (Sugden Decl. Doc. # 36 at ¶¶ 4-5).
6
On November 3, 2009, in connection with the EAP program,
Dr. Wood informed TECO Employee Relations that he required
Oliver to obtain a psychiatric re-evaluation and would notify
TECO regarding when Oliver could return to work. (Wood Decl.
Doc. # 38 at ¶¶ 12-19).
At Dr. Wood’s direction, Dr. Rao
performed Oliver’s fitness for duty evaluation. (Id.; Rao
Decl. Doc. # 35 at ¶ 5).
Dr. Rao’s fitness for duty
examination “diagnosed Oliver as Bipolar disorder, type I,
recent episode hypomanic.” (Rao Decl. Doc. # 35 at ¶ 5). On
December 28, 2009, TECO was notified that Oliver was not yet
released for return to work and was receiving treatment. (Wood
Decl. Doc. # 38 at ¶¶ 12-19). Oliver failed to follow through
with the instructions of the doctors, which resulted in a
delay in Oliver’s return to work until March 23, 2010. (Id.).
F.
Further Discipline and Termination
In April of 2010, Oliver violated TECO’s customer service
procedures when she threatened a customer that she would turn
off his lights if he did not pay his bill. (Sugden Decl. Doc.
# 36 at ¶ 22). During the same call, she insinuated to the
customer that he was committing theft of electricity and she
hung up on him. (Id.). That customer complained that Oliver
was rude and condescending. (Id.).
7
Thereafter, on April 28, 2010, Oliver exhibited bizarre
behavior at a meet and greet for new TECO employees by, inter
alia,
standing
face
to
face
with
another
employee
and
exclaiming “Because I will get in your face, cause I’ll get in
your face.” (Guthrie Decl. Doc. # 31 at ¶ 4). “The subject
employee was startled, pushed back, and had a confused look.
Other
team
members
expressed
shock
regarding
Oliver’s
behavior.” (Id.).
As a result, on April 30, 2010, Oliver was placed on the
next level of “Positive Discipline,” which is “Decision Making
Leave.” (Sugden Decl. Doc. # 36 at ¶ 23).
TECO’s “Decision
Making Leave-Commitment to Excellence, Standards of Integrity”
memorandum explains that Oliver’s behavior “violates our
Standards of Integrity and this type of behavior will not be
tolerated by the Company: You also did not follow proper
customer service procedures which violates our core value of
Customer Service.” (Doc. # 36-19).
The written memorandum
also remarked that Oliver failed to respect others, warning:
“Maria, your overall performance will be closely monitored
during this one-year period from today’s date.
During this
period, any infraction of this Decision Making Leave, company
safe
work
practices,
policies,
8
work
rules,
operating
procedures and regulations may result in termination of your
employment.” (Id.).
Not
long
thereafter,
on
June
22,
2010,
Oliver
was
directed by two members of TECO management to attend a meet
and greet for new TECO customer service employees. (Sugden
Decl. Doc. # 36 at ¶ 24; Gonzalez Decl. Doc. # 30 at ¶ 4).
Oliver refused to attend. (Sugden Decl. Doc. # 36 at ¶ 24).
Sugden then specifically mandated that Oliver attend. (Id.).
Oliver again refused to attend the meet and greet. (Id.).
The next day, Oliver caused a workplace disruption when
she screamed twice at her coworker Jennifer Weatherly.
at ¶ 25; Weatherly Decl. Doc. # 37 at ¶ 5).
(Id.
This prompted
Sugden to speak with human resources and TECO management.
(Sugden Decl. Doc. # 36 at ¶ 26). After considering Oliver’s
actions, TECO terminated her employment as of July 29, 2010,
on the basis of insubordination as Oliver failed to attend the
June 22, 2010, meet and greet. (Id. at ¶¶ 26-27).
II.
Charges of Discrimination/Retaliation and Complaint
Oliver filed a Charge of Discrimination against TECO on
November 13, 2009, alleging discrimination based on race and
disability. (Doc. # 25-7). Therein, she asserted:
I.
I was hired in October 2004, as a Customer
Service Representative. I was promoted to my
9
current position of Lead I in or around
July/August 2009.
On February 18, 2008,
October 23, 2008, and November 3, 2009, I have
been forced on a medical leave of absence. It
is a mandatory requirement that I continue to
be treated by the employer’s EAP doctor and
take prescription medication to keep my
position.
II.
Management used unsubstantiated gossip to
justify placing me on the forced medical
leave. On February 18, 2008, I was told the
medical leave was because I accused a female
employee of assault. The employer felt I had
created this story. On October 23, 2009, an
unidentified person allegedly overheard me
threatening to stab someone. On November 3,
2009, I was told I was a danger as the reason
for the leave, yet I was given no information
as to how or why it was determined that I was
a danger.
III. I believe that I am being discriminated
against because of my race, Black, in
violation of Title VII of the Civil Rights Act
of 1964, as amended. I further believe that I
am perceived as being disabled in violation of
the Americans with Disabilities Act of 1990,
as amended.
(Doc. # 25-7).5
Oliver’s second Charge of Discrimination was filed on
October 27, 2010, after her termination. (Doc. # 25-13).
She
contends in her second Charge that TECO retaliated against her
when it fired her after she filed her initial Charge on
5
Despite Oliver’s reference to racial discrimination in
her Charge of Discrimination, she has not sought relief in
this action for racial discrimination.
10
November 13, 2009. (Id.).
On June 1, 2012, Oliver filed a four-count Complaint
against TECO in state court alleging disability discrimination
and
retaliation
in
violation
of
the
Americans
with
Disabilities Act, 42 U.S.C. § 1981, and the Florida Civil
Rights Act, Fla. Stat. § 760.11. (Doc. # 2). On September 20,
2013, TECO timely removed the case to this Court on the basis
of federal question jurisdiction. (Doc. # 1). TECO filed its
Answer (Doc. # 5) on September 27, 2013, and now seeks summary
judgment on each of Oliver’s claims.
III.
Legal Standard
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
Fed. R.
A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude a
grant of summary judgment.
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.
Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
11
(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)).
A fact is material if
it may affect the outcome of the suit under the governing law.
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997).
The moving party bears the initial burden of showing
the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)).
“When a moving party has discharged
its burden, the non-moving party must then ‘go beyond the
pleadings,’ and by its own affidavits, or by ‘depositions,
answers to interrogatories, and admissions on file,’ designate
specific facts showing that there is a genuine issue for
trial.”
Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to be
true and all reasonable inferences must be drawn in the nonmoving party’s favor.
Shotz v. City of Plantation, Fla., 344
F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder
evaluating the evidence could draw more than one inference
12
from the facts, and if that inference introduces a genuine
issue of material fact, the court should not grant summary
judgment.
Samples ex rel. Samples v. City of Atlanta, 846
F.2d 1328, 1330 (11th Cir. 1988) (citing Augusta Iron & Steel
Works, Inc. v. Employers Ins. of Wausau, 835 F.2d 855, 856
(11th Cir. 1988)).
consists
of
conclusional
However, if the non-movant’s response
nothing
“more
allegations,”
proper, but required.
than
summary
a
repetition
judgment
is
of
his
not
only
Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981), cert. denied, 456 U.S. 1010 (1982).
IV.
Disability Discrimination Analysis
A.
Burden Shifting Framework
The
ADA
provides
that
“[n]o
covered
entity
shall
discriminate against a qualified individual with a disability
on the basis of disability in regard to job application
procedures,
the
hiring,
advancement,
or
discharge
of
employees, employee compensation, job training, and other
terms, conditions, and privileges of employment.” 42 U.S.C. §
12112(a). “[D]isability-discrimination claims under the FCRA
are analyzed using the same framework as ADA claims,” and
therefore this Court will “consider both claims together.”
Holly v. Clairson Indus., LLC, 492 F.3d 1247, 1255 (11th Cir.
2007).
“Under the controlling law in this Circuit, the
13
burden-shifting
discrimination
analysis
claims
(internal
citation
plaintiff
must
is
of
applicable
omitted).
first
discrimination . . . .
Title
“Under
establish
a
to
VII
ADA
that
prima
employment
claims.”
Id.
framework
the
facie
case
of
Once the plaintiff has made a prima
facie case, a rebuttable presumption arises that the employer
has acted illegally.
The employer can rebut that presumption
by articulating one or more legitimate non-discriminatory
reasons for its action. If it does so, the burden shifts back
to the plaintiff to produce evidence that the employer’s
proffered reasons are a pretext for discrimination.” Alvarez
v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th Cir.
2010).6
B.
To
Prima Facie Disability Discrimination
establish
a
prima
facie
case
of
disability
discrimination under the ADA and FCRA, Oliver must show that
(1) she has a disability; (2) she is a qualified individual
(meaning she could perform the essential functions of the job
in question with or without reasonable accommodation); and (3)
6
The Court acknowledges that the McDonnell Douglas
burden shifting test is not applicable to ADA failure to
accommodate claims. Nadler v. Harvey, No. 06-12692, 2007 U.S.
App. LEXIS 20272, at *28 (11th Cir. Aug. 24, 2007). Oliver
has not asserted a failure to accommodate claim in this case.
14
TECO unlawfully discriminated against her because of her
disability.
Albright v. Columbia Cnty. Bd. of Educ., 135 F.
App’x 344, 345 (11th Cir. 2005) (citing Rossbach v. City of
Miami, 371 F.3d 1354, 1356-57 (11th Cir. 2004)).
An individual is disabled if (1) she has a physical or
mental impairment that substantially limits a major life
activity; (2) she has a record of such impairment; or (3) she
is
regarded
12102(1).
as
having
such
an
impairment.
42
U.S.C.
§
A mental impairment is defined, in part, as “[a]ny
mental or psychological disorder . . . and specific learning
disabilities.” 29 C.F.R. § 1630.2(h)(2).
For the purposes of its Motion for Summary Judgment only,
TECO concedes that Oliver has a disability because she has
been diagnosed as having bi-polar disorder. See 29 C.F.R. §
1630.2(j)(3)(iii).
Nevertheless, TECO asserts that Oliver
cannot prove a prima facie case of disability discrimination
because (1) she was not “otherwise qualified” under the ADA
and (2) TECO did not discriminate against her on the basis of
having a disability.
1.
Qualified Individual with a Disability
A qualified individual with a disability is someone “with
a disability who satisfies the requisite skill, experience,
education,
and
other
job-related
15
requirements
of
the
employment position such individual holds or desires, and who,
with or without reasonable accommodation, can perform the
essential functions of such position.” 29 C.F.R. § 1630.2(m);
Davis v. Power & Light Co., 205 F.3d 1301, 1305 (11th Cir.
2000). The mandates of the ADA do not include the requirement
that an employer retain an individual incapable of performing
the essential functions of their position. Id.; Sutton v.
Lader, 185 F.3d 1203, 1211 (11th Cir. 1999)(“There is no
obligation under the Act to employ people who are not capable
of performing the duties of the employment to which they
aspire.”).
“‘Essential functions’ are the fundamental job duties of
a position that an individual with a disability is actually
required to perform.” Earl v. Mervyns, Inc., 207 F.3d 1361,
1365 (11th Cir. 2000). The employer’s written job description
is given consideration in determining what functions are
deemed essential. Id. Here, Oliver’s job description required
that she “must have a strong customer service aptitude, the
ability to stay calm, level-headed and resilient, and have the
ability to convey empathy as well as professionalism.” (Sugden
Decl. Doc. # 36 at ¶ 3; Doc. # 36-1).
As detailed herein, the
record demonstrates that Oliver could not conform her behavior
16
to
these
requirements.7
Oliver
consistently
engaged
in
disruptive behavior, including banging her head on her desk,
snatching a sandwich from her coworker’s hand and throwing it
on the ground, screaming, acting inappropriately at meetings,
and engaging in other unprofessional conduct. As explained in
Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1311 (11th Cir.
2013), “[A]n employee’s ability to handle reasonably necessary
stress and work reasonably well with others are essential
functions of any position.”
such
skills
prevents
the
In addition, the “[a]bsence of
employee
from
being
‘otherwise
qualified.’” Williams v. Motorola, Inc., 303 F.3d 1284, 129091 (11th Cir. 2002).
Furthermore, “there is no requirement
under
an
the
ADA
that
employer
tolerate
unprofessional
behavior for a certain period before it is entitled to
discharge an employee.” Foley v. Morgan Stanley Smith Barney,
LLC, No. 11-cv-62476, 2013 U.S. Dist. LEXIS 28873, at *18
(S.D. Fla. Mar. 4, 2013); Weigert v. Georgetown Univ., 120 F.
Supp. 2d 1, 14 (D.D.C. 2000)(“technical skills and experience
7
The Court rejects Oliver’s argument that there is a
factual issue for trial as to whether she is a qualified
individual. Oliver has supplied the Court with statements from
some of her former co-workers, such as Michelle Cooper, who
praised Oliver’s professionalism. (Doc. # 41). These
statements have no bearing on the issue.
An employee’s
performance is judged by the employer, not by that employee’s
peers.
17
are not the only essential requirements of a job and stability
and the ability to interact with co-workers constitutes an
essential function.”)
The
record
demonstrates
that
Oliver
could
not
work
reasonably well with others, which was an essential job
requirement.
Oliver’s
unprofessional
conduct
disruptive,
continued
inappropriate,
unabated
even
and
after
counseling, Positive Discipline, and additional training on
professionalism.
As aptly stated by TECO, “Oliver is not
otherwise qualified under the ADA because she could not work
reasonably well with others and could not manage stress.”
(Doc. # 24 at 16).
Because Oliver is not an otherwise qualified individual
with a disability, she fails to assert a prima facie case, and
TECO is entitled to summary judgment on her ADA and FCRA
disability discrimination claims.
Nevertheless, in an effort
to fully resolve the pending claims and issues, the Court will
continue to analyze Oliver’s claims under the assumption that
Oliver is a qualified individual with a disability.
2.
Evidence of Disability Discrimination
Oliver’s five-page response to TECO’s Motion for Summary
Judgment does not identify with specificity which actions she
contends constituted acts of ADA discrimination.
18
From the
Court’s review of Oliver’s submissions, it appears that Oliver
argues that TECO violated the ADA when it referred her to its
Employee Assistance Program and required her to take medical
leaves
of
absence
examinations.
in
connection
with
psychological
In addition, Oliver appears to assert that she
was terminated due to her disability.
TECO
contends
that
it
cannot
be
found
to
have
discriminated against Oliver on the basis of a disability
because its decision makers did not know that Oliver had a
disability.
However, since TECO routinely sent Oliver to its
Employee Assistance Program and because Oliver filed a Charge
of
Discrimination
against
TECO
alleging
disability
discrimination prior to her termination, the Court declines to
credit TECO’s contention that it was unaware of Oliver’s
psychological condition at the summary judgment stage.
Even
so, Oliver fails to assert a prima facie case of disability
discrimination because (1) TECO was entitled to
utilize its
Employee Assistance Program in light of Oliver’s behavior and
(2) TECO was entitled to terminate Oliver based on her
misconduct.
i.
EAP and Medical Leaves of Absence
Under the ADA, “mental and physical examinations are
allowable if the examination is used to determine whether the
19
‘employee can perform job-related functions.’” Roberts v.
Rayonier, Inc., No. 3:03-cv-55, 2005 U.S. Dist. LEXIS 37714,
at
*6
(M.D.
Fla.
Dec.
21,
2005)(citing
42
U.S.C.
§
12112(d)(4)(B)). “Where inquires into the psychiatric health
of an employee are job related and reflect a concern with the
safety of employees, the employer may, depending on the
circumstances of the particular case, require specific medical
information
from
the
employee
and
may
require
that
the
employee undergo a physical examination designed to determine
his ability to work.” Williams, 303 F.3d at 1291.
Here, one of Oliver’s coworkers reported to TECO’s Human
Resources department that Oliver stated that she wanted to
“stab” another TECO employee.
As a company, TECO includes
safety
values”
as
one
of
its
“core
and
maintains:
“We
emphasize a safe work environment and a culture of looking out
for the safety and well-being of each other, our customers and
our community.
We believe the safety of life outweighs all
other considerations.” (Doc. # 32-2). With the safety of its
employees to consider, TECO referred Oliver to its Employee
Assistance Program.
occasions
evaluation.
and
Dr. Wood evaluated Oliver on a number of
required
her
to
undergo
a
psychiatric
Oliver was not cleared to return to work until
Dr. Wood and other medical professionals determined that she
20
would not pose a threat to others.
“Generally, a doctor’s
refusal to release a person to return to work is a legitimate
reason for an employer to prevent that person from returning
to work.” Calvo v. Walgreens Corp., 340 F. App’x 618, 624
(11th Cir. 2009).
The court faced a similar factual situation in OwusuAnsah.
There, after a call center employee banged his head
against the table in a meeting and declared that “someone was
going to pay for this,” the employer required the employee to
undergo a psychiatric fitness for duty examination prior to
returning to work. 715 F.3d at 1309.
The employee completed
the psychiatric evaluation and sued the employer for violation
of § 12112(d)(4)(A) of the ADA. Id. at 1310.
The Eleventh
Circuit affirmed a summary judgment in favor of the employer
and
stated:
“an
employer
can
lawfully
require
a
psychiatric/psychological fitness-for-duty evaluation under §
12112(d)(4)(A)
if
it
has
information
suggesting
that
an
employee is unstable and may pose a danger to others.” Id. at
1312.
Notably, in Owusu-Ansah, the employee’s generalized
threat was that “somebody” would “pay for this.” In contrast,
it was TECO’s understanding that Oliver articulated a specific
threat (to stab) an identifiable person (Denise Bernal).
Under these circumstances, TECO had every right to refer
21
Oliver to its Employee Assistance Program and require a
psychological examination.
ii.
Termination
Oliver also contends that TECO unlawfully discriminated
against her when it terminated her employment as of July 29,
2010. Notably, TECO terminated Oliver for subordination after
Oliver failed to attend a meeting.
Oliver does not dispute
that she failed to attend the meeting in question.
She
attempts to raise a genuine issue of material fact by pointing
to her deposition testimony in which she states that she
thought that she was excused from attending the meeting.
Oliver’s
alleged
confusion
regarding
her
employer’s
requirements does not create a genuine dispute of fact for
trial.
As
correctly
argued
by
TECO:
“it
is
not
the
Plaintiff’s belief [that controls], but whether the Defendant
believed that the Plaintiff had engaged in the behavior for
which it took action.” (Doc. # 42 at 6).
There is no evidence that TECO terminated Oliver on the
basis of a disability.
In fact, the record shows that, when
faced with numerous instances of well-documented misconduct,
TECO gave Oliver many chances to rehabilitate and conform her
behavior to its communicated standards, applicable to all
employees.
When TECO determined that Oliver could not meet
22
its
requirements,
it
terminated
her.
The
Court
finds
persuasive the following analysis offered by Judge Posner in
a case where a terminated employee suffered from a mental
illness and sought relief under the ADA:
There is no evidence that Palmer was fired because
of her mental illness. She was fired because she
threatened to kill another employee. The cause of
the threat was, we may assume, her mental illness.
. . . But if an employer fires an employee because
of the new employee’s unacceptable behavior, the
fact that the behavior was precipitated by a mental
illness does not present an issue under the
Americans with Disabilities Act.
Palmer v. Circuit Court of Cook Cnty., 117 F.3d 351, 352 (7th
Cir. 1997).
Articulated differently: “the law is well settled that
the ADA is not violated when an employer discharges an
individual based upon the employee’s misconduct, even if the
misconduct is related to a disability.” Ray v. Kroger Co., 264
F. Supp. 2d 1221, 1228 (S.D. Ga. 2003). See also Jones v. Am.
Postal
Workers
1999)(employer
Union,
not
192
liable
F.3d
under
the
417,
ADA
429
for
(4th
Cir.
terminating
schizophrenic employee after that employee threatened a coworker); Hamilton v. S.W. Bell Tel. & Co., 136 F.3d 1047, 1052
(5th Cir. 1998)(“An employee who is fired because of outbursts
at work directed at fellow employees has no ADA claim.”).
Tellingly, the EEOC’s “Primer on the ADA” as quoted in the
23
Foley case states that employers “do not have to excuse
violations of conduct rules necessary for the operation of
your business. Example: You do not have to tolerate violence,
threats of violence, theft or destruction of property, even if
the employee claims that a disability caused the misconduct.”
Foley, 2013 U.S. Dist. LEXIS at *21-22.
The fact that TECO
terminated an employee with a disability does not mean that it
did so on the basis of her disability.
that
TECO’s
employment
decisions
Oliver has not shown
were
motivated
by
a
discriminatory animus toward Oliver based on her disability.
For this reason, and because she failed to demonstrate that
she is a qualified individual with a disability, her prima
facie case is incomplete.
C.
TECO’s Legitimate and Non-Discriminatory Reasons
Assuming arguendo that Oliver succeeded in establishing
a prima facie case of disability discrimination, her ADA and
FCRA claims would still succumb to TECO’s Motion for Summary
Judgment
because
discriminatory
TECO
reasons
has
for
proffered
(1)
legitimate,
referring
Oliver
to
nonits
Employee Assistance Program and (2) terminating Oliver’s
employment, and Oliver has failed to show that TECO’s actions
were a pretext for discrimination. See Olmsted v. Taco Bell
Corp., 141 F.3d 1457, 1460 (11th Cir. 1998). In order to show
24
pretext, Oliver “must demonstrate that the proffered reason
was not the true reason for the employment decision.” Jackson
v. Ala. State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir.
2005). “In evaluating a summary judgment motion, the district
court must evaluate whether the plaintiff has demonstrated
such
weaknesses,
implausibilities,
inconsistencies,
incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder
could find them unworthy of credence.” Id. However, “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 Ctr. v.
Hicks, 509 U.S. 502, 515 (1993)(internal citation and emphasis
omitted).
1.
Referral to EAP
As outlined in great detail above, TECO required Oliver
to participate in its Employee Assistance Program after TECO
determined
that
Oliver
exhibited
bizarre,
unprofessional, and threatening behavior.
inappropriate,
Oliver claims in
her deposition that Bernal really did kick and harass her.
(Oliver Dep. Vol. 2 Doc. # 26 at 59).
In response to TECO’s
Motion for Summary Judgment, Oliver maintains that “because
the Court must construe these facts in a light most favorable
25
to
[Oliver],
it
must
reject
Defendant’s
conclusion
that
Plaintiff’s allegations regarding Bernal were unfounded.”
(Doc. # 40 at 5). Oliver also suggests that summary judgment
is inappropriate because the Court is called to make a
credibility determination between Oliver’s statements that
Bernal did kick her, and Findley’s declaration statement that
Oliver’s accusations about Bernal were untrue. (Id.). Even
assuming that Bernal kicked and harassed Oliver on a daily
basis, the record shows that decisions makers at TECO believed
that Bernal did not kick or otherwise harass Oliver.
The
record shows that TECO’s decision makers determined that
Oliver’s behavior concerning Bernal was inappropriate and
threatening.
that
TECO’s
Oliver has not pointed to any evidence to show
managers’
or
other
decision
makers’
beliefs
regarding the allegations against Oliver were not honestly
held.
So long as TECO’s decision makers believed that Oliver
engaged in the conduct she was alleged to have engaged in, the
individuals providing reports about Oliver, such as Guthrie,
could have been “lying through their teeth.” Elrod v. Sears,
Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991); see also
Hawkins v. Ceco Corp., 883 F.2d 977, 980 n.2 (11th Cir.
1989)(That the employee did not in fact engage in misconduct
reported to the employer is irrelevant.).
26
Oliver has failed
to show that TECO’s legitimate and non-discriminatory reasons
for referring her to its Employer Assistance Program were a
mere pretext for unlawful discrimination.
2.
Termination
As for her termination, Oliver has provided statements
from
former
coworkers
praising
professionalism. (Doc. # 41).
Oliver’s
skills
and
These statements, both made
after Oliver’s termination, do not satisfy Oliver’s burden to
show pretext.
The Court emphasizes that it is the employer’s
opinion of the terminated employee, and not that of her
cohorts, that matters.
Oliver also attempts to show pretext with her argument
that she did not act with subordination because she did not
know that she was required to attend the June 22, 2010, meet
and
greet.
argument.
However,
the
Court
need
not
consider
this
A termination based on a good faith belief of
misconduct is legitimate, even if it is later determined that
no misconduct occurred.
EEOC v. Total Sys. Serv., 221 F.3d
1171, 1176-77 (11th Cir. 2000)(“An employer who fires an
employee under the mistaken but honest impression that the
employee violated a work rule is not liable for discriminatory
conduct.”).
“The inquiry . . . is limited to whether [TECO]
believed that [Oliver] was guilty of [misconduct], and if so,
27
whether
this
belief
was
the
reason
discharge.” Elrod, 939 F.2d at 1470.
behind
[Oliver’s]
The record shows that
TECO’s decision makers were operating under the belief that
her absence from the meeting was unauthorized, and Oliver has
not pointed to any contrary evidence regarding the decision
maker’s beliefs. Further, as stated by the court in Alexander
v. Fulton Cnty., Ga., 207 F.3d 1303, 1341 (11th Cir. 2000),
“it is not the court’s role to second-guess the wisdom of an
employer’s decision.”
super-personnel
And this Court does “not sit as a
department
that
reexamines
an
entity’s
business decisions.” Elrod, 939 F.2d at 1470.
The Court grants summary judgment in favor of TECO on
Oliver’s
ADA
and
FCRA
disability
discrimination
claims
asserted in Counts I and III because Oliver has failed to
establish a prima facie case - specifically she failed to
establish that she is an “otherwise qualified” individual and
she failed to show that she was discriminated against on the
basis of having a disability.
In addition, the Court finds
that, had Oliver established a prima facie case of ADA and
FCRA discrimination, TECO nevertheless prevails because it
proffered
legitimate
referring
Oliver
to
and
the
non-discriminatory
Employee
28
Assistance
reasons
for
Program
and
terminating Oliver, and Oliver has failed to demonstrate
pretext.
V.
Retaliation
Oliver’s Complaint also contains two counts against TECO
for retaliation under the ADA and the FCRA.
It appears that
Oliver has abandoned those claims because Oliver does not
mention or otherwise support her retaliation claims in her
Response to TECO’s Motion for Summary Judgment.
Tellingly,
Oliver remarks: “Plaintiff can defeat summary judgment on
Defendant’s argument regarding her disability discrimination
claims in Counts I and III of the Complaint.” (Doc. # 40 at
2). This appears to be a concession that Oliver’s retaliation
claims asserted in Counts II and IV are subject to summary
judgment. “Courts commonly grant summary judgment as to claims
which the plaintiff failed to address in response to a summary
judgment motion.” Barnes v. Crowne Inv., Inc., 391 F. Supp. 2d
1108, 1114 (S.D. Ala. 2005).
Nevertheless, and in an abundance of caution, the Court
addresses
the
retaliation
claims
herein.
To
establish
retaliation under the ADA and the FCRA, Oliver must show: “(1)
that [s]he engaged in statutorily protected activity; (2) that
[s]he suffered an adverse employment action; and (3) a causal
link between the protected activity and the adverse action.”
29
Wilbourne v. Forsyth Cnty. Sch. Dist., 306 F. App’x 473, 476
(11th Cir. 2009). “Once a plaintiff has established a prima
facie
case
[of
retaliation],
the
employer
then
has
an
opportunity to articulate a legitimate, non-retaliatory reason
for the challenged employment action.” Pennington v. City of
Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). If this is
accomplished, Oliver “bears the ultimate burden of proving by
a preponderance of the evidence the reason provided by [TECO]
is a pretext for prohibited, retaliatory conduct.” Wilbourne,
306 F. App’x at 476.
Oliver engaged in protected activity when she filed a
Charge of Discrimination on November 13, 2009.
After the
passage of five months, on April 30, 2010, Oliver was placed
on “Decision Making Leave.”
More than eight months after
filing her November 13, 2009, Charge of Discrimination, she
was terminated on July 29, 2010. In Drago v. Jenne, 453 F.3d
1301, 1308 (11th Cir. 2006), the court noted: “in the absence
of any other evidence of causation, a three and one-half month
proximity
between
a
protected
activity
and
an
adverse
employment action is insufficient to create a jury issue on
causation.”
In the present case, Oliver has not pointed to
any evidence of causation, and the proximity between her
30
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