West v. Tampa Housing Authority Development Corporation

Filing 42

ORDER: Defendant Tampa Housing Authority Development Corporation's Motion for Summary Judgment (Doc. # 37 ) is GRANTED. The Clerk is directed to enter judgment in favor of Tampa Housing Authority and against Plaintiff Michael West on all counts of the Complaint. Thereafter, the Clerk is directed to CLOSE the case. Signed by Judge Virginia M. Hernandez Covington on 10/31/2018. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MICHAEL WEST,
Plaintiff,
v.

Case No.: 8:18-cv-44-T-33AEP

TAMPA HOUSING AUTHORITY
DEVELOPMENT CORPORATION,
Defendant.
_____________________________/
ORDER
This matter comes before the Court upon consideration of
Defendant Tampa Housing Authority Development Corporation’s
Motion for Summary Judgment (Doc. # 37), filed on September
24, 2018. Plaintiff Michael West responded on October 18,
2018. (Doc. # 39). Tampa Housing Authority replied on October
26, 2018. (Doc. # 41). For the reasons that follow, the Motion
is granted.
I.

Background
West began working for Tampa Housing Authority in 1988,

as a Maintenance Helper. (Doc. # 36-1 at 27:5-10). Eventually,
West was re-classified as a Maintenance Mechanic I. (Id. at
27:11-13). The official job description for the Maintenance
Mechanic I position read as follows:

1

A.
Perform general grounds keeping tasks, clean
buildings and set-up for events
l. Clean grounds of paper and debris using pick-up
stick, rake or other appropriate tools
2. Perform a wide variety of seasonal tasks such
as, blowing, raking and bagging leaves, clean paths
after snow or ice storms, remove dead limbs and
vegetation, and weed flower beds; as needed
3. Place bags of trash and leaves in designated
locations for pick-up
4. Clean buildings to include sweeping, dusting,
mopping, emptying trash containers, vacuuming,
waxing and buffing, and related tasks to keep space
clean and neat
5. Keep bathrooms and other spaces stocked with
paper products and soap
6. Set up rooms for events and take down set up
after events are over
7. Observe conditions and report any unusual
conditions,
such
as
presence
of
strangers,
disagreements among residents, or other situations
8. Inspect hallways and common places, eliminate
obstacles to free passage and assure that there is
adequate lighting
9. Pressure wash outside of buildings, walks, clean
debris from roofs, as needed
10. Paint and repair outside fences, benches,
grills, etc. as needed
B.
Assist with general maintenance tasks
l. Replace furnace filters and light bulbs
2. Assist in the repair or installation of building
fixtures such as windows, doors, roofs, cabinets,
walls, partitions, counter tops, tile, smoke
detectors, ceilings and floors
3. Assist with minor electrical maintenance such as
replacement of wall sockets and switches, lights,
and fans
4. Assist with routine plumbing work such as
unstopping
commodes
and
garbage
disposals,
repairing and replacing faucets, commodes, sinks
and bath accessories
5. Perform or assist with performing a variety of
painting tasks
6. Perform routine and preventive maintenance
2

7. Receive and review written materials such as
work orders
8. Assist in regular inspection of units to
determine maintenance needs
9. Assist in preparing units for occupancy by
removing trash and other items, and cleaning in
accordance with established procedures
10. Regularly conduct inventory of equipment,
tools, parts, and supply of materials
(Doc. # 36-2).
West

acknowledged

in

his

deposition

that

the

job

description was accurate regarding the types of duties he
performed and that the job could not be performed from a desk.
(Doc. # 36-1 at 28:8-23, 30:7-17, 64:23-65:17). So, as the
Director of Human Resources and Compliance for Tampa Housing
Authority, Kenneth Christie, explained: “The position of
Maintenance Mechanic I is physically demanding, and physical
ability, strength, dexterity, and mobility are essential
functions of the job.” (Doc. # 36-8 at ¶ 4).
While working on March 12, 2016, West sprained his ankle
while stepping off of a curb. (Doc. # 36-1 at 35:4-16). Then,
on March 14, 2016, West reported his injury to Tampa Housing
Authority’s Human Resources department. (Id. at 36:18-20). HR
gave West paperwork related to his injury to fill out and
referred him to a doctor. (Id. at 36:18-37:20; Doc. # 36-4 at
1). And the workers’ compensation process was initiated at
that time. (Doc. # 36-3; Doc. # 36-4).

3

Additionally, West was granted twelve weeks of Family
and Medical Leave Act (“FMLA”) leave. (Doc. # 36-6). West
acknowledged that he knew he had to return to work twelve
weeks later, which was June 6, 2016. (Doc. # 36-1 at 38:1218).
West sought medical treatment during his FMLA leave.
West’s

doctor,

Dr.

Herscovici,

sent

updates

about

his

condition occasionally to Tampa Housing Authority during
West’s FMLA leave. (Doc. # 36-3). On March 28, 2016, the
doctor reported that West could only return to work if West
performed certain activities in a sedentary position. (Id. at
2). These activities included carrying, climbing, lifting
from floor to the waist, lifting from the waist to overhead,
pulling, pushing, squatting, and twisting. (Id.). Again, on
April 11, 2016, the doctor imposed a restriction that West
could only engage in carrying, climbing, lifting from floor
to the waist, lifting from the waist to overhead, pulling, or
pushing if he was sedentary. (Id. at 4).
On May 27, 2016, Christie sent West a letter explaining
that West’s FMLA leave was ending on June 3, so West was
expected to return to work on June 6, 2016. (Doc. # 36-6).
The letter warned that “[i]f [West did] not return to work at
the end of [his] medical leave of absence, [he] will have
4

voluntarily

terminated

[his]

employment.”

(Id.).

Additionally, the letter advised West that he could “request
a

medical

leave

of

absence

pending

approval

from

[his]

supervisor.” (Id.).
In an attempt to secure an extended leave, West sent a
leave request form to Tampa Housing Authority. (Doc. # 36-8
at 5). But West did not provide a date on which the extended
leave would end. (Id.; Doc. # 36-1 at 58:1-15). For that
reason,

Tampa

Housing

Authority

considered

the

request

“incomplete and non-compliant,” so it “was not approved.”
(Doc. # 36-8 at ¶ 8).
West did not return to work on June 6, 2018. (Id. at ¶
9). Then, on June 10, 2016, Tampa Housing Authority sent West
a letter terminating his employment effective June 6 because
of West’s “inability to return to work at the end of [his]
FMLA medical leave of absence.” (Doc. # 36-5; Doc. # 36-8 at
¶ 9).
West agreed that “there was no way that [he] could
perform [his] job of maintenance mechanic sitting down and
not doing the lifting and bending and pulling and pushing
that [his] job required.” (Doc. # 36-1 at 67:1-5). When asked
how

he

thought

Tampa

Housing

accommodated him, West stated:
5

Authority

should

have

I thought they could have given me — let me order
supplies out of the stockroom. I think they could
have had me print out work orders up front with the
ladies.
(Id. at 67:12-15). Essentially, West wanted “a temporary
light-duty office job that would have allowed [him] to sit
down most of the time.” (Id. at 67:22-25).
But Christie avers that “[d]uring the period of March
12, 2016 — June 3, 2016, there were no light-duty office jobs
available that Mr. West could have performed temporarily.”
(Doc. # 36-8 at ¶ 10). So, “[c]reating a light-duty office
job for Mr. West to perform temporarily would have placed an
undue hardship on the Tampa Housing Authority.” (Id. at ¶
11). Additionally, Christie “believed that Mr. West was not
qualified for such positions due to his deficient reading and
writing skills.” (Id. at ¶ 12).
Following his termination, West filed a grievance with
Tampa Housing Authority. (Doc. # 36-1 at 59:6-61:15). During
a meeting with Christie about his grievance, Christie told
West that he had “already made up his mind that it doesn’t
matter, [and that West was] not getting [his] job back.” (Id.
at 59:18-19).
West continued to litigate his workers’ compensation
claim. During his deposition, West admitted he did not “have

6

any facts to support that” he was fired in retaliation for
filing a workers’ compensation claim. (Id. at 68:5-8).
On June 27, 2016, Dr. Herscovici amended West’s work
restrictions. (Doc. # 36-3 at 6). He marked that West had to
be

sedentary

until

July

11,

2016,

as

to

the

following

activities: climbing, grasping, kneeling, lifting from floor
to the waist, lifting from the waist to overhead, and pulling.
(Id.). That doctor’s report states that West would have “[n]o
functional limitations” as of July 11, 2016. (Id.). Then, on
August 15, 2016, Dr. Herscovici found that West had reached
“maximum medical improvement” and gave West a “0% impairment
rating.” (Doc. # 36-4 at 2).
On September 7, 2016, West sent a letter to Tampa Housing
Authority. (Doc. # 36-7). That letter stated: “I would like
to inform you that I have been released back to work full
duty and I would like to get my job back after working for
your company for almost 30 years.” (Id.). But, as of October
of

2017,

West

reported

to

another

doctor

that

“he

has

significant pain and swelling in his ankle whenever he tries
to use it and that he is not improved. He has difficulty with
standing and squatting which again produces pain and swelling
of his ankle.” (Doc. # 36-4 at 2).

7

Tampa Housing Authority did not rehire West, and West’s
workers’ compensation case is still ongoing. (Doc. # 36-1 at
61:16-62:17).
West initiated this action in state court on December 1,
2017, asserting claims under the Americans with Disabilities
Act (“ADA”), the Florida Civil Rights Act (“FCRA”), and
Section 440.205, Florida Statutes. (Doc. # 2). Tampa Housing
Authority removed the case to this Court on January 5, 2018.
(Doc. # 1). Then, Tampa Housing Authority filed its Answer on
January 12, 2018. (Doc. # 7). The parties underwent discovery.
They mediated on August 23, 2018, but met an impasse. (Doc.
# 30).
Now, Tampa Housing Authority moves for summary judgment.
(Doc. # 37). West has responded (Doc. # 39), and Tampa Housing
Authority has replied, (Doc. # 41). The Motion is ripe for
review.
II.

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.”

Fed.

R. Civ. P. 56(a). 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
8

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 non-moving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(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., 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)(quoting 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
9

be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, 344
F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder
evaluating the evidence could draw more than one inference
from the facts, and if that inference introduces a genuine
issue of material fact, the court should not grant summary
judgment. Samples ex rel. Samples v. City of Atlanta, 846
F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s
response consists of nothing “more than a repetition of his
conclusional

allegations,”

summary

judgment

is

not

only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981).
III. Analysis
Tampa Housing Authority argues that West cannot present
a genuine issue of material fact as to any of his claims. The
Court will address West’s disability discrimination claims
and workers’ compensation retaliation claim separately.
A.

Disability Discrimination Claims

Regarding

Count

I,

West

asserts

that

Tampa

Housing

Authority violated the ADA by allegedly failing to “offer[]
any reasonable accommodations despite [West’s] being able to
perform

the

essential

functions

of

his

job”

and

“terminat[ing] [West] because [it] knew or perceived that
10

[West] was disabled.” (Doc. # 2 at 3-5). In Count II, which
is labelled as an FCRA claim, West merely asserts that Tampa
Housing Authority violated Section 440.205, Florida Statutes,
by terminating him because “of his having filed or attempted
to file a valid claim for compensation and benefits under the
Workers’ Compensation Law.” (Id. at 6-7). So, it does not
appear Count II is actually a disability discrimination claim
under the FCRA.
Regardless,

ADA

and

FCRA

disability

discrimination

claims are evaluated under the same framework. See Holly v.
Clairson

Indus.,

LLC,

492

F.3d

1247,

1255

(11th

Cir.

2007)(“[D]isability-discrimination claims under the FCRA are
analyzed using the same framework as ADA claims. We therefore
consider

both

claims

together.”

(citation

omitted)).

Therefore, to the extent Count II is actually attempting to
assert a claim for disability discrimination under the FCRA,
the Court can address the ADA and FCRA claims together.
The

ADA

and

the

FCRA

prohibit

employers

from

discriminating against “qualified individual[s] on the basis
of disability.” 42 U.S.C. § 12112(a). “[T]o establish a prima
facie case of discrimination under the [Act], [the plaintiff]
must demonstrate that [he] (1) is disabled, (2) is a qualified
individual, and (3) was subjected to unlawful discrimination
11

because of [his] disability.” Cash v. Smith, 231 F.3d 1301,
1305 (11th Cir. 2000).
A “qualified individual” is a person who, with or without
reasonable accommodations, is able to perform the essential
functions

of

the

job

he

holds

or

desires.

42

U.S.C.

§

12111(8). “[A] plaintiff must show either that he can perform
the essential functions of his job without accommodation, or,
failing that, show that he can perform the essential functions
of his job with a reasonable accommodation.” D’Angelo v.
ConAgra Foods, 422 F.3d 1220, 1229 (11th Cir. 2005)(quotation
marks

omitted).

“And

even

a

‘relative[ly]

infrequen[t]’

inability to perform a job’s essential functions is enough to
render a plaintiff not a ‘qualified individual’ under the
ADA.” Billups v. Emerald Coast Utils. Auth., 714 F. App’x
929,

936

(11th

Cir.

2017)(quoting

Holbrook

v.

City

of

against

a

Alpharetta, 112 F.3d 1522, 1528 (11th Cir. 1997)).
“An

employer

unlawfully

discriminates

qualified individual with a disability when the employer
fails

to

provide

‘reasonable

accommodations’

for

the

disability — unless doing so would impose undue hardship on
the employer.” Lucas v. W.W. Grainger, Inc., 257 F.3d 1249,
1255 (11th Cir. 2001)(quoting Davis v. Fla. Power & Light
Co., 205 F.3d 1301, 1305 (11th Cir. 2000)). Still, “the duty
12

to provide a reasonable accommodation is not triggered unless
a specific demand for an accommodation has been made.” Gaston
v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363 (11th
Cir. 1999). And “an employer is not required to accommodate
an employee in any manner in which that employee desires.”
Terrell v. USAir, 132 F.3d 621, 626 (11th Cir. 1998)(citation
omitted). “The plaintiff bears the burden of identifying an
accommodation, and of demonstrating that the accommodation
allows him to perform the job’s essential functions.” Lucas,
257 F.3d at 1255-56.
Indeed, “[a]n accommodation can qualify as ‘reasonable,’
and thus be required by the ADA, only if it enables the
employee to perform the essential functions of the job.” Id.
at 1255. “An accommodation that simply eliminates, rather
than enables the disabled employee to perform, an essential
function of their job is ‘per se unreasonable.’” Leme v. S.
Baptist Hosp. of Fla., Inc., 248 F. Supp. 3d 1319, 1345 (M.D.
Fla.

2017).

fundamental

“The
job

term

duties

essential
of

the

functions

employment

means

the

position

the

individual with a disability holds or desires.” Dickerson v.
Sec’y, Dep’t of Veterans Affairs Agency, 489 F. App’x 358,
360

(11th

Cir.

2012)(quoting

29

C.F.R.

§

1630.2(n)(1)).

“Whether a function is essential is evaluated on a case-by13

case basis by examining a number of factors.” Id. (citation
omitted). “Consideration is given to the employer’s judgment
as to what functions of a job are essential.” Id.
“[T]he ADA may require the employer to ‘reassign,’ i.e.,
transfer, the disabled employee to a vacant position as a
reasonable accommodation. The reassignment duty, however,
does not require the employer to bump another employee from
a position in order to accommodate a disabled employee. Nor
does it require the employer to promote a disabled employee.”
Lucas, 257 F.3d at 1256 (citations omitted).
Tampa Housing Authority argues that West has not shown
that he was a qualified individual or that he was subjected
to unlawful discrimination. (Doc. # 37 at 7-15). It emphasizes
that

West,

accommodation

in

his

would

deposition,

insisted

have

a

been

a

temporary

reasonable
sedentary

assignment in an office. (Id. at 10). But West nevertheless
acknowledged that he would not have been able to perform the
job of Maintenance Mechanic I while sitting down at a desk
and was not otherwise able to perform many of the physical
tasks that were part of the Maintenance Mechanic I position.
(Id. at 11; Doc. # 36-1 at 30:7-17, 64:23-65:17). Thus,
according to Tampa Housing Authority, West was not a qualified
individual.
14

Furthermore, Tampa Housing Authority argues that West
has failed to show that there was an office job available at
that time. (Doc. # 37 at 12). Indeed, Tampa Housing Authority
emphasizes its evidence that no such office positions existed
at that time and West would not have been qualified for such
position regardless. (Doc. # 36-8 at ¶¶ 10-12). Therefore,
Tampa Housing Authority reasons, West has failed to identify
a reasonable accommodation. (Doc. # 37 at 11-12).
In

his

response,

West

argues

that

a

reasonable

accommodation would have been “an extended leave of absence
of a limited period of time.” (Doc. # 39 at 8). West insists
such leave of absence “would have enabled him to perform the
essential functions of his job.” (Id. at 9). He emphasizes
that he “was released full duty by Dr. Herscovici in July and
again in August” of 2016. (Id.; Doc. # 36-3 at 6; Doc. # 364 at 2).
True, “a person, totally disabled at one point, may be
considered a qualified individual if the allowance of a leave
of absence or possible reassignment would provide them the
opportunity to resume working at a later date.” Dockery v. N.
Shore Med. Ctr., 909 F. Supp. 1550, 1556 (S.D. Fla. 1995).
But a leave of absence “is unreasonable if it would only allow
an employee to ‘work at some uncertain point in the future.’”
15

Billups, 714 F. App’x at 935 (citation omitted); see also
Wood v. Green, 323 F.3d 1309, 1314 (11th Cir. 2003)(“While a
leave of absence might be a reasonable accommodation in some
cases, Wood was requesting an indefinite leave of absence.
Wood might return to work within a month or two, or he could
be stricken with another cluster headache soon after his
return and require another indefinite leave of absence. Wood
was not requesting an accommodation that allowed him to
continue work in the present, but rather, in the future — at
some indefinite time.”).
Here, it is undisputed that West did not provide a
definite date on which he could have returned to work when he
requested an extended leave. (Doc. # 36-8 at 5). So, when
West made his request for an extended leave, he was proposing
an indefinite leave of absence until whenever his injury fully
healed. See Billups, 714 F. App’x at 934 (“[A]n employer does
not violate the ADA by refusing to grant an employee a period
of time in which to cure his disabilities where the employee
sets no temporal limit on the advocated grace period, urging
only that he deserves sufficient time to ameliorate his
conditions.” (citation and quotation marks omitted)). While
West

bemoans

reasonable

the

“lack

of

accommodations

interactive
and
16

Tampa

discussion”

Housing

about

Authority’s

“point blank decision to terminate him without even an attempt
to discuss with the treating medical provider when [West]
would be able to return to work,” he cannot escape the fact
that he did not have an end date in sight when he requested
an extended leave of absence. (Doc. # 39 at 8).
Furthermore, there is evidence that West would not have
been able to perform the essential functions of his job for
months after his termination in June of 2016. One doctor, Dr.
Herscovici, found that West had reached “maximum medical
improvement” and had a “0% impairment rating” as of August
15,

2016.

(Doc.

#

36-4

at

2).

But,

another

of

West’s

physicians reported in October of 2017 — over a year later —
that West had not reached maximum medical improvement and
still suffered “significant pain and swelling in his ankle
whenever he trie[d] to use it.” (Id.). Therefore, West’s
suggested reasonable accommodation — an extended leave for an
indefinite period — was unreasonable and cannot support an
ADA claim.
Finally, West argues that there is a genuine dispute of
material fact

“as to

sedentary jobs that were open and

available at the time of [] West’s temporary disability
status.” (Doc. # 39 at 11). But West presents no evidence
refuting

Christie’s

affidavit
17

stating

that

no

sedentary

office positions were available. Indeed, West has presented
no evidence at all in support of his response; instead, West
relies solely on the materials submitted by Tampa Housing
Authority in support of its Motion. The Court is mindful that
“[t]he

mere

allegation

of

factual

disputes

found

in

Plaintiff’s Response may not be taken into account by a Court
in determining issues of fact to be resolved in a motion for
summary judgment.” Dockery, 909 F. Supp. at 1553.
Upon review of the record, the Court finds that there is
no genuine issue of material fact as to West’s disability
discrimination

claims

under

the

ADA

and

the

FCRA.

The

undisputed evidence establishes that West was not a qualified
individual under the ADA because he was not able to perform
the

essential

functions

of

his

Maintenance

Mechanic

I

position at the time of his termination. (Doc. # 36-1 at 30:717,

64:23-65:17).

Nor

has

West

identified

a

reasonable

accommodation that he was denied. Tampa Housing Authority is
entitled to summary judgment on these claims.
B.

Workers’ Compensation Retaliation

In Count III, West asserts a claim under Section 440.205,
Florida Statutes, for allegedly terminating his employment
because of his “having filed or attempted to file a valid
claim

for

compensation

and

benefits
18

under

the

Workers’

Compensation Law, and/or by his retaining of an attorney to
represent him in the workers’ compensation case.” (Doc. # 2
at 7-8).1
Under Section 440.205, “[n]o 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.” But Section 440.205 “cannot be interpreted to prohibit
the discharge of an employee for any reason once the employee
has filed or pursued a workers’ compensation claim.” Billups,
714 F. App’x at 937 (quoting Pericich v. Climatrol, Inc., 523
So.2d 684, 685 (Fla. 3d DCA 1988)).

Because the Court has granted summary judgment on the ADA
claim, the Court recognizes that supplemental jurisdiction
pursuant to 28 U.S.C. § 1367 supplies the only remaining basis
for jurisdiction over the workers’ compensation retaliation
claim. “The dismissal of [a plaintiff’s] underlying federal
question claim does not deprive the Court of supplemental
jurisdiction over the remaining state law claims.” Baggett v.
First Nat. Bank of Gainesville, 117 F.3d 1342, 1352 (11th
Cir. 1997). “Indeed, under 28 U.S.C. § 1367(c), the Court has
the
discretion
to
decline
to
exercise
supplemental
jurisdiction over non-diverse state law claims, where the
Court has dismissed all claims over which it had original
jurisdiction, but [the Court] is not required to dismiss the
case.” Id. Here, the Court decides it is appropriate to
continue exercising supplemental jurisdiction over the
workers’ compensation retaliation claim.
1

19

“Retaliation

claims

brought

pursuant

to

[Section]

440.205 require a plaintiff to show the following: (1) he
engaged in protected expression; (2) he suffered an adverse
employment action; (3) a causal connection exists between the
expression and the adverse action.” Id. “As to the third
element, for purposes of establishing a prima facie case, the
plaintiff must show that the protected activity and the
adverse action are not completely unrelated, which can be
satisfied through close temporal proximity.” Id. (citation
and quotation marks omitted).
“Once a plaintiff establishes a prima facie case, the
burden shifts to the defendant to present a legitimate reason
for its conduct.” Juback v. Michaels Stores, Inc., 696 F.
App’x 959, 960 (11th Cir. 2017). “If the employer does so,
the

plaintiff

then

bears

the

burden

of

proving

by

a

preponderance of the evidence that the defendant’s proffered
reason was merely a pretext for the prohibited, retaliatory
decision.” Id.
Tampa Housing Authority argues this claim fails because
West

cannot

establish

a

causal

connection

between

his

workers’ compensation claim and his termination. (Doc. # 37
at 15-16). Tampa Housing authority insists that West has no
evidence that he was retaliated against. (Id. at 15). It
20

emphasizes that, during his deposition, West admitted he did
not

“have

any

facts

to

support

that”

he

was

fired

in

retaliation for filing a workers’ compensation claim. (Doc.
# 36-1 at 68:5-8).
In his response, West insists there is a genuine issue
of

material

fact

regarding

whether

there

is

a

causal

connection between his workers’ compensation claim and his
termination. (Doc. # 39 at 13-15). But West does not provide
any

record

evidence

supporting

a

connection

between

his

termination and the initiation of his workers’ compensation
claim. Indeed, West admits he does not have evidence such as
“an email or document that explicitly states that he was being
terminated and/or not offered alternative employment because
he was pursuing a workers’ compensation case.” (Id. at 12).
Instead, West focuses on the temporal proximity between the
workers’ compensation claim and his termination to establish
causation. (Id. at 14).
“But mere temporal proximity, without more, must be
‘very close.’” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361,
1364 (11th Cir. 2007)(citation omitted). Here, the workers’
compensation claim was initiated soon after West’s injury in
mid-March of 2016, and his termination did not occur until
June 10, 2016. This is not sufficient to establish a prima
21

facie case of retaliation. See Id. (“A three to four month
disparity between the statutorily protected [activity] and
the adverse employment action is not enough.”); see also
Anderson v. Ga.-Pac. Wood Prod., LLC, 942 F. Supp. 2d 1195,
1211 (M.D. Ala. 2013)(“The record shows that Georgia–Pacific
did not take any alleged adverse action against Anderson until
early June 2008, almost three months after Anderson filed his
EEOC charge on March 12, 2008. The Court concludes that this
temporal

proximity,

without

more,

is

insufficient

to

establish the causal link of Anderson’s prima facie case.”).
Even
workers’

if

the

approximately

three

months

between

the

compensation claim and West’s termination could

establish a prima facie case, Tampa Housing Authority has
shown

a

legitimate

terminating

West.

and

According

nondiscriminatory
to

Tampa

Housing

reason

for

Authority,

West’s “employment was terminated because he was unable to
return to work at the end of his FMLA leave, and failed to
provide [Tampa Housing Authority] with a date certain by when
he would return to his job.” (Doc. # 37 at 15). Tampa Housing
Authority has presented the May 27, 2016 letter, in which it
warned West that he would be terminated if he did not return
to work on June 6, 2016, or successfully apply for an extended
medical leave. (Doc. # 36-6). West’s request for an extended
22

leave was incomplete, as it did not list a date certain when
he would return, and so was rejected. (Doc. # 36-8 at ¶¶ 78). Finally, there is no dispute that West did not return to
work on June 6, 2016, resulting in his termination on June
10, 2016. (Id. at ¶ 9).
This is a legitimate reason for West’s termination. See
Billups, 714 F. App’x at 937 (finding that defendant employer
had a legitimate reason for terminating plaintiff where “the
record evidence is undisputed that, at the time of his
termination, and following an extended period of medical
leave, [plaintiff] simply was unable to perform the essential
functions of his

job”).

And West has not presented any

evidence of pretext to rebut this legitimate reason. Even
taking the facts in the light most favorable to West, the
response’s emphasis on Tampa Housing Authority’s decision to
fire West, a nearly 30-year employee, for not returning to
work immediately after his FMLA leave does not establish
pretext. (Doc. # 39 at 12-13). Therefore, Tampa Housing
Authority is entitled to summary judgment on the workers’
compensation retaliation claim.
III. Conclusion
Because no genuine issue of material fact exists as to
West’s disability discrimination and workers’ compensation
23

retaliation claims, Tampa Housing Authority is entitled to
summary judgment on all counts of the Complaint.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant

Tampa

Housing

Authority

Development

Corporation’s Motion for Summary Judgment (Doc. # 37) is
GRANTED.
(2)

The Clerk is directed to enter judgment in favor of Tampa
Housing Authority and against Plaintiff Michael West on
all counts of the Complaint.

(3)

Thereafter, the Clerk is directed to CLOSE the case.
DONE and ORDERED in Chambers in Tampa, Florida, this

31st day of October, 2018.

24