U.S. Equal Employment Opportunity Commission v. The Princess Martha, LLC et al

Filing 113

ORDERED: (1) Defendant The Princess Martha, LLC's Motion for Summary Judgment 58 is GRANTED-IN-PART and DENIED-IN-PART; Defendant TJM Property Management, Inc.'s Motion for Summary Judgment 59 is DENIED; TJM Properties, Inc.'s Motion for Summary Judgment 61 is GRANTED-IN-PART and DENIED-IN-PART; Plaintiff EEOC's Motion for Partial Summary Judgment 65 is GRANTED; Princess Martha's motion to strike 100 is DENIED. See Order for details. (2) Within fourteen (14) days, the parties shall file a joint notice on CM/ECF which identifies their availability for trial in 2025. Signed by Senior Judge Charlene Edwards Honeywell on 9/26/2024. (MMS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
v.

Case No: 8:22-cv-2182-CEH-AAS

THE PRINCESS MARTHA, LLC,
TJM PROPERTIES, INC. and TJM
PROPERTY MANAGEMENT, INC.,
Defendants.
ORDER
This matter comes before the Court on several pending motions for summary
judgment.

In this employment action, the EEOC alleges that Defendants, The

Princess Martha, LLC (“Princess Martha”), TJM Property Management, Inc. (“TJM
Management”), and TJM Properties, Inc. (“TJM Properties”), unlawfully
discriminated against Charging Party Sarah Branyan in violation of the Americans
with Disabilities Act (“ADA”) by failing to hire or accommodate her based on her
disability.
All three Defendants have moved for summary judgment (Docs. 58, 59, 61).
Plaintiff U.S. Equal Employment Opportunity Commission (“EEOC”) has responded
in opposition (Docs. 96, 97), Princess Martha and TJM Properties have replied (Docs.
98, 99), and the EEOC has filed a sur-reply to Princess Martha’s motion (Doc. 110).
Also before the Court is the EEOC’s Motion for Partial Summary Judgment (Doc.

65), Princess Martha’s response in opposition (Doc. 94), and the EEOC’s reply (Doc.
101); as well as Princess Martha’s motion to strike (Doc. 100) and the EEOC’s
response in opposition (Doc. 104).
Upon review and consideration, and being fully advised in the premises, the
Court determines that Princess Martha’s motion for summary judgment is due to be
granted-in-part, to the extent that all Defendants are entitled to summary judgment as
to Count I. TJM Properties’ motion for summary judgment is also due to be grantedin-part, to the extent that TJM Properties is entitled to summary judgment as to a joint
employer theory. The EEOC’s motion for partial summary judgment is due to be
granted in its entirety, and TJM Management’s motion for summary judgment and
Princess Martha’s motion to strike are due to be denied.
I.

MOTION TO STRIKE (Doc. 100)
The Court will first address, as a threshold, evidentiary matter, Princess

Martha’s motion to strike the declaration of Charging Party Sarah Branyan (Doc. 100).
Princess Martha moves to strike Branyan’s declaration, which the EEOC submitted in
connection with its response in opposition to Princess Martha’s motion for summary
judgment. Doc. 93-30. Princess Martha argues that the assertions in the declaration
are “in direct contrast to the testimony she provided at her deposition.” Doc. 100 at 5.
Because of its inherent inconsistency with the deposition testimony, Princess Martha
contends that the declaration is a “sham affidavit” that should be disregarded. Id. at 68.

In response, the EEOC argues that the declaration is not inconsistent with

2

Branyan’s responses to Princess Martha’s vague and ambiguous questions at her
deposition, and it is fully consistent with the other documentary evidence. Doc. 104.
At her deposition, Branyan gave the following testimony:
Q. In regard to your PTSD, what impairments does PTSD cause
you to have, Ms. Branyan?
A. It’s resolved in some ways since this started, but really, prior to
counseling, I had the night terrors and nightmares were the
biggest.
Q. And I asked a poor question. I didn’t mean symptoms that you
just told me about, but as far as like functioning in your day-to-day
life, does the PTSD impair you from any major life functions that
you carry out throughout your day?
MR. MICHELEN: Object to Form.
A. I – I think in day-to-day life, you know, once in a while I will
be very short-fused with the people in my household, but the
medication has been – that I take to manage it is the reason that I
don’t have those.
Doc. 62-1 at 131:7-22.
Branyan’s declaration explains that she has taken prescription medication to
manage her post-traumatic stress disorder (“PTSD”) since 2020, and that the
medication “helps alleviate” her PTSD symptoms. Doc. 93-30 ¶¶ 1-2. Branyan goes
on to list the symptoms she was experiencing and describe them in detail. Id. ¶¶ 2-13.
She clarifies, however, that she experiences those symptoms only when she is not
taking her medications. Id. ¶¶ 12-13. Branyan then explains that her deposition
testimony about being “short-fused” referred to “the PTSD symptoms I still experience
even while taking Adderall and Valium.” Id. ¶ 14.

3

Under the sham affidavit rule, “[w]hen a party has given clear answers to
unambiguous questions which negate the existence of any issue of material fact, that
party cannot thereafter create such an issue with an affidavit that merely contradicts,
without explanation, previously given clear testimony.” Van T. Junkins & Assoc. v. U.S.
Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984). A court may strike an affidavit as a
sham when the affidavit flatly contradicts the affiant's previous testimony “for the
transparent purpose of creating a genuine issue of fact where none existed previously.”
Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1306 (11th Cir. 2016). However, “the
rule only operates in a limited manner to exclude unexplained discrepancies and
inconsistencies, as opposed to those which create an issue of credibility or go to the
weight of the evidence.” Id. (quotations omitted). Courts apply the rule sparingly
“because of the harsh effect it may have on a party's case.” Allen v. Bd. of Pub. Educ. for
Bibb County, 495 F.3d 1306, 1316 (11th Cir. 2007), quoting Rollins v. TechSouth, Inc.,
833 F.2d 1525, 1530 (11th Cir. 1987).
Contrary to Princess Martha’s argument, the Branyan declaration is not due to
be stricken or disregarded as a sham affidavit, because it is not inconsistent with “clear
answers to unambiguous questions” in her deposition testimony. Her testimony that
“once in a while I will be very short-fused…but the medication…that I take to manage
is the reason that I don’t have those[,]” can readily be interpreted to mean that she is
describing the impairments to her day-to-day functioning that occur now that she is
taking medication, just as she explained in her declaration.

Princess Martha’s

interpretation of her response as describing the only impairments she experiences with
4

or without medication is not unreasonable, but it is also not the only likely meaning.
And Princess Martha failed to ask follow-up questions to clarify whether she was
describing impairments that occur with or without medication, an ambiguity for which
the initial question left room. Branyan’s declaration does not contain the type of
unexplained contradictions that would render it a sham affidavit. Accordingly, the
motion to strike is due to be denied.
II.

MOTIONS FOR SUMMARY JUDGMENT
A. Legal Standard
Summary judgment is appropriate only when the court is satisfied that “there is

no genuine issue of material fact and that the moving party is entitled to judgment as
a matter of law” after reviewing the “pleadings, the discovery and disclosure materials
on file, and any affidavits[.]” Fed. R. Civ. P. 56(c)(2). In determining whether a
genuine issue of material fact exists, the Court must consider all the evidence in the
light most favorable to the nonmoving party. Shotz v. City of Plantation, Fla., 344 F.3d
1161, 1164 (11th Cir. 2003). Issues of fact are “genuine only if a reasonable jury,
considering the evidence presented, could find for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A fact is “material” if it may affect the
outcome of the suit under governing law. Id.
The moving party bears the initial burden of stating the basis for its motion and
identifying those portions of the record demonstrating the absence of genuine issues of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986); Hickson Corp. v. N.

5

Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004). That burden can be discharged
if the moving party can show the court that there is “an absence of evidence to support
the nonmoving party’s case.” Celotex, 477 U.S. at 325. “Only when that burden has
been met does the burden shift to the non-moving party.” Clark v. Coats & Clark, Inc.,
929 F.2d 604, 608 (11th Cir. 1991).
“[I]n order to survive summary judgment, the nonmoving party must set forth
specific facts showing there is a genuine issue for trial.” Johnson v. New Destiny Christian
Ctr. Church, Inc., 826 F. App’x 766, 770 (11th Cir. 2020), citing Anderson, 477 U.S. at
249-50. “[U]nsupported ‘conclusory allegations’ do not suffice.” Middlebrooks v. Sacor
Fin., Inc., 775 F. App'x 594, 596 (11th Cir. 2019). Likewise, “[a] ‘mere existence of a
scintilla of evidence’ cannot suffice to create a genuine issue of material fact.” Johnson,
826 F. App’x at 770, quoting Anderson, 477 U.S. at 252.
B. Princess Martha’s Motion (Doc. 58)
1. Relevant Facts 1
Charging Party Sarah Branyan applied for a job at Princess Martha, a retirement
community in St. Petersburg, Florida, in August of 2021. Doc. 95 ¶¶ 12, 1. After a
successful interview, she was directed to take a drug test as the final step in the hiring
process. Id. ¶¶ 15-16. Branyan would have been hired if she had obtained a satisfactory

The Court has determined the facts, which are undisputed unless otherwise noted, based on
the parties’ submissions, including declarations and exhibits, and the Stipulation of Agreed
Material Facts (Doc. 95). For purposes of summary judgment, the Court considers the facts
in the light most favorable to the non-moving party as required by Fed. R. Civ. P. 56. The
facts related to the TJM Defendants’ motions for summary judgment are addressed separately
in Section E, infra.
1

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result on the drug test. Doc. 62-2 at 188, 233. Instead, however, her application was
rejected on August 26, 2021. Id. at 203.
Branyan is a military veteran who had an active diagnosis of PTSD at the time
of her application with Princess Martha. Doc. 95 ¶¶ 10-11; Doc. 62-1 at 85. To treat
her PTSD, she takes prescription medications that would cause a drug test to fail. See
Doc. 62-1 at 98. When she is not taking these medications, she experiences symptoms
that include brain fog, anxiety, night terrors, difficulty communicating, difficulty going
out in public, and panic attacks. Doc. 93-30 ¶¶ 7-12.

Before she began taking

medication, her symptoms caused her to have public meltdowns at least twice a week;
near-daily yelling, irrationality, inconsolable crying, or feeling overwhelmed with
doom; and episodes of severe rage or panic attacks necessitating an emergency room
visit multiple times a month. Id. ¶¶ 5-6, 13.
On August 18, 2021, Branyan interviewed with Brittany Knight, Princess
Martha’s activities director, for the position of Activities Coordinator. Doc. 95 ¶ 12.
According to Branyan, “the first thing I said when I sat down was, I am a recovering
addict, a veteran with PTSD, and I have this criminal background as a result of that
service and I don’t want to waste your time.” Doc. 62-1 at 85. Branyan was concerned
that she would not be able to pass the background check, but Knight assured her that
Princess Martha “work[s] with people with all different kinds of backgrounds; that that
wouldn’t be an issue.” Id. Branyan handed Knight several documents, including an
FBI background screening, her resume, a military letter, and “the labels of the
medication for that month.” Id. at 79-80. Knight “kind of…did a flip thing and then
7

handed [the stack of papers] right back to me”; with respect to the medication labels,
Knight “didn’t review them” and “kind of brushed them off,” stating that “if they were
prescription medications, that’s something the lab will check.” Id. at 80-81. Branyan
did not tell Knight the names of her medications, id. at 81, but she did inform her they
were “psychiatric medications.” Doc. 93-8 at 3.
Knight gave Branyan a tour of Princess Martha, and they discussed the type of
facility Princess Martha is, the role and hours of the Activities Coordinator, and the
type of activities the facility was doing at that time. Doc. 95 ¶ 13; Doc. 62-1 at 175.
When discussing the fact that the position would not require driving, Branyan
informed Knight that she takes “a medication that says not to operate a vehicle on it.”
Id. at 84. Knight ran a background check on Branyan in front of her, and Branyan
passed. Id. at 82. At the end of the interview, Branyan understood that she had the job
as long as she passed a drug test. Id. at 81. Knight instructed her to complete the drug
test within 48 hours. Id. at 82, 174.
Knight’s recollection of Branyan’s interview is similar to Branyan’s in many
respects. Doc. 62-3 at 63-64, 72, 83-88. However, she denied that Branyan attempted
to hand her any paperwork, including copies of medication labels, 2 or that Branyan
disclosed that she was on medication that may cause a drug test to fail or that she was

Knight “specifically remembers” that Branyan did not hand her any paperwork, because
Branyan had written on the hard copy of the job application that she filled out during the
interview that her criminal record was “attached.” Doc. 62-3 at 73, 77-78, 82. When Knight
pointed out to Branyan that nothing was attached to the application except for Branyan’s
resume, Branyan said she “would get it to” Knight. Id. at 78. Knight told her she was welcome
to do so, but that Princess Martha would run a background check anyway. Id. at 79.
2

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“a veteran with PTSD.” Id. at 73, 77, 79, 81-84. When the interview was finished,
Knight brought a Request to Hire form to Princess Martha’s executive director for her
approval, and then to Andrea Von Blomberg, the human resources (“HR”) director.
Id. at 74-76, 89. Von Blomberg ran Branyan’s background check, and Knight gave
Branyan information about the drug testing procedure. Id. at 75-76, 84-85, 95; Doc. 95
¶ 14, 16.
Princess Martha requires applicants to complete a drug test before they can
receive a final offer of employment. Id. ¶¶ 4-5; Doc. 93-9 at 40. Applicants must
provide a urine sample to BayCare, a collection facility, within 48 hours of their
interview. Doc. 95 ¶¶ 4-5, 7. BayCare conducts a rapid test on the specimen to
determine if it is “negative” or “non-negative.” Doc. 93-10 at 3. If it is “non-negative,”
it will be shipped to an outside lab for additional testing to eliminate non-drug use as
a cause for a positive result. Id.
Von Blomberg, Princess Martha’s HR director, monitors applicants’ drug test
results on a web portal called eScreen, and proceeds with the hiring process once
eScreen displays a final result. Doc. 95 ¶ 8; Doc. 62-2 at 98-99, 101, 168. If she has
questions about a drug screening she can contact Princess Martha’s assigned account
representative at BayCare. See id. at 100-101, 210; Doc. 93-15 at 3-4. However, Von
Blomberg testified that it was not her practice to reach out to BayCare on behalf of
applicants, because it was the applicants’ “responsibility…to follow through that
process.” Id. at 210-13. It is her practice to contact an applicant a single time if she
does not see a test result on eScreen within 24 hours. Id. at 168. If she still does not
9

see a result after one communication, “I just automatically assume they moved on to
another position[.]” Id.
Branyan provided a sample to BayCare on August 19, 2024, after Von Blomberg
called to remind her to take the test. Doc. 95 ¶ 17; Doc. 62-2 at 196-97. Because her
rapid test displayed a “non-negative” result, BayCare sent her sample to the lab for
further testing. Doc. 62-1 at 88-90. Unbeknownst to Branyan and Princess Martha,
the sample was lost in the mail and was never received by the lab. Doc. 93-15 at 3, 8,
15.
Branyan brought her prescription labels to BayCare when she took the test, but
was told that the lab would contact her for that information. Id. at 90. However, the
lab never called her. Id. at 90-91. After waiting several days, Branyan contacted
BayCare and the lab, but both of them told her she had to communicate with the
employer about her test results and prescriptions. Id. at 94-97. Branyan then contacted
Princess Martha, leaving the following voicemail for Von Blomberg on August 24,
2021:
Hi, this is Sarah Branyan. My phone number is (---)--- -----. I'm a
little taken aback by the drug test procedures, because I'm on two
medications which would make me look like I would fail a drug
test. I explained that to the people there. They said they're only a
collection site and they refused to take my list of medications.
They told me they sent it to LabCorp, and LabCorp would check
my list of medications, but LabCorp never called me. And then
when I called back today, they said that I can just send it right to
the employer, and that they would verify medications and decide
if they wanted to hire me based on that. So, I'm hoping you can
give me a call back as soon as possible and let me know if you guys
are still interested. Thanks, and have a great day.

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Doc. 62-1 at 98-99.
The eScreen portal indicated that Branyan’s test was “sent to lab.” Doc. 93-13.
Although Von Blomberg checked for Branyan’s test results several times a day, the
information did not change. Doc. 62-2 at 209, 231. Von Blomberg testified that she
assumed “sent to lab” was still displaying because Branyan had failed to provide
documentation to the lab, which was the “common denominator” when the lab did
not provide a result. Id. at 231-32, 249. 3 After waiting a week, on August 26, 2021,
Von Blomberg sent Branyan a rejection notification and moved on to other applicants.
Id. at 203, 244. Von Blomberg did not recall receiving Branyan’s August 24, 2021
voicemail, but said it was “possible” she listened to it. Id. at 200-201. Even if she had
listened to it, however, if she “went back to eScreen and I didn’t see any [lab] results,
more than likely it would still be that we moved on to another applicant.” Id. at 20102.
Von Blomberg testified that she does not “have communication with BayCare
or the lab.” Id. at 210. If an applicant had an issue contacting the lab, Von Blomberg
would direct them to BayCare. Id. at 171-72. Likewise, if an applicant was taking
prescription medication that affected the drug test, “that would have to be resolved
between the applicant and the lab.” Id. at 171; see also id. at 194. At the same time,
Von Blomberg testified that if eScreen displays a positive result, she “would verify that

In July 2021, Princess Martha had experienced an applicant who failed to respond to the
lab; eScreen displayed a result of “Positive unable to contact donor” in that case. Doc. 92-14;
Doc. 62-2 at 247-48.
3

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what’s showing matched the records” of the applicant’s prescribed medication. Id. at
195; see also id. at 233 (“If she would have received an immediate positive result, all we
would have needed from her was the prescribed medicine from her medical provider”).
She explained that what was missing in Branyan’s case was any result. Id. at 234.
Von Blomberg denied that Knight ever told her Branyan had PTSD or was
taking prescription medications. Doc. 62-2 at 192-193. Knight testified that if Branyan
had told her she was a veteran with PTSD or that she was on prescription medication
that may cause a drug test to fail, Knight would have “initiated her with [Von
Blomberg] to get any documentation needed” or to “initiate the next steps.” Doc. 623 at 93-94. Knight would have been “required” to notify HR if Branyan had disclosed
that she was on a prescription medication that may cause a drug test to fail. Id. at 94.
Von Blomberg agreed that Knight would have informed her if Branyan had disclosed
such information. Doc. 62-2 at 193. If Branyan had “mentioned her PTSD status to
Ms. Knight during the interview,” however, Knight would “not necessarily” have
shared it with Von Blomberg unless it would “affect the performance of the position.”
Id. at 192-93.
In January 2022, another job applicant for the Activities Coordinator position
disclosed to Knight by email that she used medical cannabis due to a disability. Doc.
95 ¶ 24. Knight forwarded the email to Von Blomberg, because she understood it to
be a request for an accommodation to the drug test. Id. ¶ 25; Doc. 62-3 at 125-26. After
receiving a “positive” drug test result, Doc, 92-14, the applicant was hired for the
position. Doc. 62-3 at 116.
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Branyan filed a charge of discrimination with the EEOC against Princess
Martha on November 22, 2021. Doc. 95 ¶ 2. The EEOC initiated the instant lawsuit
on September 21, 2022. Doc. 1. Count I of the Amended Complaint alleges that
Princess Martha and the TJM Defendants committed disability discrimination against
Branyan by failing to hire her, while Count II alleges that they failed to reasonably
accommodate her disability. Doc. 24.
Princess Martha, joined by the TJM Defendants, 4 now moves for summary
judgment on both counts of the Amended Complaint. It first argues it is entitled to
summary judgment on the disability discrimination count for four reasons: 1)
Branyan’s PTSD does not impair her functioning enough to render her disabled; 2)
she is not a qualified individual because she did not complete the drug testing that is a
requirement of the position; 3) Von Blomberg, the decisionmaker for the adverse
action, had no knowledge of her alleged disability; and 4) the EEOC cannot show that
the non-discriminatory reason for not hiring her—the lack of result for her drug test—
was pretextual. With respect to the failure to accommodate claim, Princess Martha
argues that Branyan never triggered Princess Martha’s ADA duties by making a
specific demand for accommodation. Each argument will be addressed in turn.5

The TJM Defendants’ motions for summary judgment incorporate by reference the
substantive arguments in Princess Martha’s motion, with the Court’s permission. Doc. 51;
Doc. 59 at 1 n.1; Doc. 61 at 1 n.1.
5
Princess Martha raises a procedural argument in its reply that the statement of material facts
in its motion for summary judgment should be deemed undisputed, because the EEOC failed
to specifically dispute it by paragraph number and instead simply submitted its own statement
of facts. Doc. 99 at 1-2. Because the EEOC’s response sufficiently identifies the facts that are
in dispute, Princess Martha’s argument is unavailing.
4

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2. Failure to Hire (Count I)
The ADA prohibits discrimination in employment “against a qualified
individual on the basis of disability.” 42 U.S.C. § 12112(a). A plaintiff alleging
disability discrimination must demonstrate that: (1) she is disabled, (2) she was a
“qualified individual” when she was terminated, and (3) she was discriminated against
because of her disability. See, e.g., Frazier-White v. Gee, 818 F.3d 1249, 1255 (11th Cir.
2016) (citation omitted).
Where a plaintiff relies on circumstantial evidence of discrimination, rather
than direct evidence, courts apply the McDonnell-Douglas burden-shifting framework.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Cleveland v. Home Shopping
Network, Inc., 369 F.3d 1189, 1193 (11th Cir. 2004). First, the plaintiff must establish
a prima facie case of disability discrimination through the three elements above. Id.
The burden then shifts to the employer “to articulate a legitimate, non-discriminatory
reason” for the adverse employment action. Id. The employer’s burden is “exceedingly
light.” Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1142 (11th Cir. 1983). If the
employer meets its burden, the plaintiff will not survive summary judgment unless she
presents sufficient evidence to create an issue of fact that the articulated reason was a
pretext for discrimination. Cleveland, 369 F.3d at 1193; Duckworth v. Pilgrim’s Pride
Corp., 764 F. App’x 850, 853 (11th Cir. 2019) (citations omitted). To show pretext, a
plaintiff must “demonstrate[ ] such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer's proffered legitimate reasons for its

14

action that a reasonable factfinder could find them unworthy of credence.” Combs v.
Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir.1997) (quotation omitted).
Here, there are genuine issues of fact as to whether Branyan is a qualified
individual with a disability.

However, the EEOC has not set forth evidence

demonstrating the existence of a genuine dispute of fact as to the third element of a
prima facie case: that Von Blomberg failed to hire Branyan “on the basis of” her
disability. See Akridge v. Alfa Ins. Cos., 93 F.4th 1181, 1191 (11th Cir. 2024); 42 U.S.C.
§ 12112(a). Accordingly, the Court need not address the possibility of pretext, and all
Defendants are entitled to summary judgment as to Count I.
a. Disability
First, there is sufficient evidence for a reasonable jury to conclude that Branyan
is disabled. A disability is “a physical or mental impairment that substantially limits
one or more major life activities[.]” 42 U.S.C. § 12102(1)(A). The ADA provides that
the definition of disability must “be construed in favor of broad coverage of
individuals…to the maximum extent permitted” by the statute’s terms. Id. §
12102(4)(A). A major life activity “includes the operation of a major bodily function,
including [] functions of the [] brain.” Id. § 12102(2)(B). The implementing regulations
of the ADA provide examples of some types of impairments that will “virtually always
be found to impose a substantial limitation on a major life activity.” 29 C.F.R.
1630.2(j)(3)(ii).

As one example, the regulations state that it “should easily be

concluded” that PTSD substantially limits brain function. Id. § 1630.2(j)3)(iii).

15

It is undisputed that Branyan had an active diagnosis of PTSD at the time she
applied for the Activities Coordinator position. Doc. 95 ¶ 11. Her declaration explains
that she experiences, inter alia, brain fog, anxiety, night terrors, difficulty
communicating, difficulty going out in public, and panic attacks when she is not on
medication for her PTSD. Doc. 93-30 ¶¶ 7-12. Before she began taking medication,
she would have public meltdowns at least twice a week; near-daily yelling,
irrationality, inconsolable crying, or feeling overwhelmed with doom; and episodes of
severe rage or panic attacks necessitating an emergency room visit multiple times a
month. Id. ¶¶ 5-6, 13; cf. Munoz v. Selig Enterprises, Inc., 981 F.3d 1265, 1273 (11th Cir.
2020) (defendant entitled to summary judgment where plaintiff failed to state how
often and how long she experienced the symptoms she described). These symptoms
constitute impairments to her brain function when she is not medicated. See 42 U.S.C.
§ 12102(4)(E)(i) (“[t]he determination of whether an impairment substantially limits a
major life activity shall be made without regard to the ameliorative effects of mitigating
measures,” including medication). Based on Branyan’s declaration, the Court has no
difficulty in concluding that a reasonable jury could find she is disabled within the
meaning of the ADA.
b. Qualified Individual
A reasonable jury could also conclude that Branyan was a qualified individual.
A “qualified individual” is someone who, “with or without reasonable
accommodation, can perform the essential functions of the employment position that
such individual holds or desires.” 42 U.S.C. § 12111(8).
16

To survive summary

judgment on this element, “the plaintiff must provide evidence sufficient for a jury to
find that…she could perform the essential functions of that job with or without
reasonable accommodations.” Dickey v. Dollar General Corp., 351 F. App’x 389, 391
(11th Cir. 2009), citing Lucas v. Grainger, 257 F.3d 1249, 1255-56 (11th Cir. 2001).
Princess Martha argues that Branyan is not a qualified applicant because a
satisfactory drug test result is required for employment, and Branyan did not receive
any result from her drug test. Doc. 58 at 16-17. This argument is unavailing. To the
extent receiving a drug test result is considered an “essential function” of the position,
as Princess Martha contends, there is no dispute that Branyan’s failure to receive a
drug test result resulted from an external factor—the sample was lost—rather than an
inability on her part. In other words, she “could” receive a drug test result, and would
have if her sample had not been lost. A reasonable jury could therefore find that she
“could perform” that essential function. See Dickey, 351 F. App’x at 391; see also
Henderson v. Sovereign Healthcare of Tuskawilla, LLC, No. 6:15-cv-1879, 2017 WL
1376164, *4 (M.D. Fla. Apr. 17, 2017) (a reasonable jury could find that plaintiff was
qualified for the job even though she stopped the hiring process before submitting
fingerprints, where there was no evidence she could not perform the job’s essential
functions, and there was a genuine issue of fact as to whether the failure to submit
fingerprints resulted from discrimination).
Princess Martha does not dispute that Branyan was not otherwise qualified for
the position of Activities Coordinator, and there is ample evidence that Branyan would
have been hired if she had produced a negative drug test result or a positive result that
17

corresponded with her prescription medications. See Doc. 97 at 15. Construing the
facts in the light most favorable to the EEOC, a reasonable jury could find that
Branyan was a qualified individual.
c. Causation
The evidence compels a different result with respect to the element of causation.
For this element, the EEOC must prove that Princess Martha would have hired
Branyan but for her disability. See Akridge, 93 F.4th at 1192. To establish that an
employee’s disability was a causal factor in an adverse action, a discrimination plaintiff
must demonstrate that the employer’s agent who made the termination decision had
actual knowledge of the employee’s disability. Pecora v. ADP, LLC, 232 F.Supp.3d
1213, 1219 (M.D. Fla. 2017), citing Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1175 (11th
Cir. 2005). Princess Martha argues there is no evidence that Von Blomberg, who was
the decisionmaker, was aware of Branyan’s disability when she decided not to hire
her. Doc. 58 at 18. The EEOC responds that “there is sufficient circumstantial
evidence to infer Von Blomberg did know…that Branyan’s drug test results were
because of prescription medications she was taking for her disability (PTSD).” Doc.
97 at 17-18.
There are two significant pieces of evidence that bear on the question of Von
Blomberg’s knowledge. First, it is undisputed that Branyan left her a voicemail on
August 24 in which she stated, “I’m on two medications which would make me look
like I would fail a drug test.” Doc. 62-2 at 199. Von Blomberg does not recall listening
to it but agrees it was possible she did, Doc. 62-2 at 200, and there is no evidence she
18

did not listen to it. At this stage, the Court must assume that she did, because to do
“otherwise would be to deny Plaintiff the benefit of resolving all reasonable inferences
in her favor as the nonmoving party.” Mora v. Jackson Mem. Foundation, Inc., 597 F.3d
1201, 1205 (11th Cir. 2010).
However, the statement that Branyan is “on two medications” did not provide
notice that she has a disability.

“Vague or conclusory statements revealing an

unspecified capacity are not sufficient to put an employer on notice of its obligations
under the ADA.” Morisky v. Broward Cnty., 80 F.3d 445, 448 (11th Cir. 1996)
(knowledge that plaintiff was illiterate and had taken special education courses did not
put employer on notice of developmental disorder). After all, “[t]he ADA does not
require clairvoyance.” Hedberg v. Ind. Bell Telephone Co., Inc., 47 F.3d 928, 934 (7th Cir.
1995). In Hedberg, the court held that knowledge of the plaintiff’s symptoms did not
equate to knowledge of a disability, where the symptoms were not “so obviously
manifestations of an underlying disability that it would be reasonable to infer that an
employer actually knew of the disability.” Id.

“Discrimination is about actual

knowledge, and real intent, not constructive knowledge and assumed intent.” Silvera
v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 1262 (11th Cir. 2001).
For this reason, courts have held that limited information that a plaintiff has a
medical condition or receives medical treatment is not enough to demonstrate a
decisionmaker’s actual knowledge of a disability for ADA purposes. In Howard v. Steris
Corp., 886 F. Supp. 2d 1279, 1294 (M.D. Ala. 2012), aff'd, 550 F. App'x 748 (11th Cir.
2013), for example, the court found that the decisionmaker’s knowledge that the
19

plaintiff had Graves’ disease did not put him on notice that the diagnosis would render
the plaintiff disabled. As the court concluded, “the ADA only requires employer to
account for known disabilities when making employment decisions…so just because
an employer knows an employee has some sort of impairment doesn’t mean that the
employer automatically knows the impairment substantially limits a major life activity
of that employee.” Id. (emphasis in original); see also Pecora v. ADP, LLC, 232 F. Supp.
3d 1213, 1220 (M.D. Fla. 2017) (plaintiff’s statement that he was “dealing with ‘a ton
of anxiety’…that made it difficult for him to perform his duties at work” did not
establish knowledge of a mental disability); Moreira v. Am. Airlines, Inc., 157 F. Supp.
3d 1208, 1215-16 (S.D. Fla. 2016) (statement that plaintiff was going to physical
therapy did not put decisionmaker on notice of disability); Williamson v. Clarke Cnty.
Dep't of Hum. Res., 834 F. Supp. 2d 1310, 1324 n.18 (S.D. Ala. 2011) (knowledge that
plaintiff was seeing a physician and continuing “medication management” was not
knowledge of a disability); Forsyth v. Univ. of Alabama Bd. of Trustees, No. 7:17-cv-854,
2018 WL 3012343, *4 (N.D. Ala. June 15, 2018) (observing symptoms of depression
and knowledge that plaintiff sought counseling did not put decisionmaker on notice of
disability). 6

This principle is not limited to courts within the Eleventh Circuit. See, e.g., Andrews v. U.S.
Bank, N.A., No. 22-56120, 2024 WL 658957, *1-2 (9th Cir. Feb. 16, 2024) (plaintiff’s “passing
references to his medication and his tic disorder” did not put employer on notice of a
disability, and employer had no obligation to make further inquiries into his medical
condition after learning that he was taking medication); Cozzi v. Great Neck Union Free Sch.
Dist., No. 05-cv-1389, 2009 WL 2602462, *15 (E.D.N.Y. Aug. 21, 2009) (knowledge of
plaintiff’s herniated discs was not enough to put defendants on notice that plaintiff was
disabled by her condition within the meaning of the ADA); Brown v. BKW Drywall Supply,
6

20

Branyan’s statement that she is “on two medications” that would cause her to
fail a drug test is exactly the kind of vague, limited information that does not put an
employer on notice of a disability within the meaning of the ADA. From hearing the
voicemail, Von Blomberg would have no knowledge of the type of medication that
Branyan takes or the medical condition or conditions that necessitate it. 7 She could
not glean or assume that Branyan suffered from an impairment that substantially limits
one or more life activities. 8 After all, many non-disabled people take prescription

Inc., 305 F. Supp. 2d 814, 829 (S.D. Ohio 2004) (“Knowing that an employee has health
problems…is not the same as knowing that the employee suffers from a disability.”); Moore v.
Time Warner GRC 9, 18 F. Supp. 2d 257, 261-62 (W.D.N.Y. 1998) (knowledge that plaintiff
suffered from diabetes or hypertension was not equivalent to knowing that his condition
disabled him within the meaning of the ADA); Kolivas v. Credit Agricole, No. 95 Civ. 5662,
1996 WL 684167, *5 (S.D.N.Y. Nov. 26, 1996) (information that plaintiff was prescribed
medication, was being treated by a psychiatrist, was depressed, and needed time off was not
sufficient to inform the company that he had a disability), aff'd, 125 F.3d 844 (2d Cir.1997).
Cf. Lisby v. Tarkett Ala., Inc., No. 3:16-cv-01835, 2020 WL 1536386, *5 (N.D. Ala. March 31,
2020) (decisionmaker knew plaintiff was prescribed amphetamines and methadone); Equal
Emp. Opportunity Comm’n v. Mod. Grp., Ltd., No. 1:21-cv-451, 2024 WL 1288634, *32 (E.D.
Tex. March 25, 2024) (decisionmakers’ awareness of the specific medications plaintiff took
and the disabilities they could be used to treat created a genuine dispute of fact as to
knowledge of disability).
The EEOC cites Stainback v. Citadel Broad. Co. Corp., No. 2:13-cv-812, 2014 WL
7330833, *14-15 (N.D. Ala. Dec. 19, 2014), in support of the assertion that the decisionmaker
does not need to know “all the specifics” to demonstrate knowledge of a disability. Doc. 97
at 18. But the Stainback court found that the decisionmaker’s knowledge that the plaintiff had
a heart attack and required rehabilitation raised a genuine issue of material fact as to whether
the defendants regarded the plaintiff as disabled. 2014 WL 7330833 at *15. The EEOC does
not pursue a “regarded as” theory of disability in this action. See 42 U.S.C. § 12102(1)(C);
Doc. 24 ¶ 116; Doc. 97 at 13-14. Stainback is therefore inapposite.
7

Cf. Conn v. Am. Nat’l Red Cross, 149 F.Supp.3d 136, 149-50 (D.D.C. 2016) (decisionmaker
had actual knowledge of plaintiff’s disability where he was aware that she had been treated
by a psychologist for five years for anxiety issues, that her anxiety qualified as a serious health
condition, and that she was “heavily medicated and not able to travel or work,” which
allowed for the inference that he knew plaintiff “suffered from some serious mental
8

21

medications, including medications that may be revealed in a drug test. See Bailey v.
Real Time Staffing Servs., Inc., 543 F. App'x 520, 524 (6th Cir. 2013) (“Though the
doctor's note said Bailey was taking some sort of medication that perhaps could cause
a positive drug screen, this medication might have been Tylenol for all Real Time
knew.”). Nor did Von Blomberg have an obligation to investigate further to determine
whether Branyan was taking medications due to a disability. See Andrews, 2024 WL
658957 at *2, supra n.6. Without more, the August 24 voicemail does not create a
material dispute of fact as to Von Blomberg’s knowledge of Branyan’s disability.
The second significant piece of evidence is a factual dispute regarding Branyan’s
interview. Knight unequivocally denied that Branyan shared her PTSD diagnosis,
mentioned prescription medications, or disclosed a disability at the interview. Doc.
62-3 at 82-85, 129. But Branyan testified that her PTSD diagnosis was one of the first
things she told Knight. Doc. 62-1 at 85. She also stated that she disclosed to Knight
that she takes “a medication that says not to operate a vehicle on it” and “psychiatric
medications.” Id. at 84; Doc. 93-8 at 3.

Here, too, the Court will resolve this

evidentiary conflict in Branyan’s favor as the non-movant. See Sears v. Roberts, 922 F.3d
1199, 1209 (11th Cir. 2019).
Knight is not the decisionmaker, however, and her knowledge cannot be
imputed to Von Blomberg. See Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1183 (11th Cir.
2005) (explaining why constructive knowledge theory based on other employees’

impairment that would substantially limit a major life activity—an impairment that would
therefore qualify as a disability under the ADA.”) (emphasis in original).

22

knowledge failed).

Therefore, the EEOC must identify evidence from which a

reasonable jury could find that Knight shared this information with Von Blomberg.
Both Knight and Von Blomberg denied that she did so. Doc. 62-3 at 82-85; Doc. 62-2
at 192-93. The EEOC argues that a reasonable jury could choose not to credit their
denials in light of Branyan’s testimony about her disclosure to Knight, because
“Knight was required to escalate this information to Von Blomberg and would have
done so, [and] Knight spoke to Von Blomberg about Branyan’s drug test the day of the
interview[.]” Doc. 97 at 17. Indeed, Knight and Von Blomberg testified that Knight
would have informed Von Blomberg that an applicant required assistance with the
drug test because of a prescription medication. Doc. 62-3 at 57-58, 93-94; Doc. 62-2 at
193. Knight did so on a subsequent occasion when an applicant disclosed the use of
medical marijuana. See Doc. 62-3 at 124-28, 183. The EEOC contends that this
circumstantial evidence creates a genuine dispute of fact as to Von Blomberg’s
knowledge of Branyan’s disability.
When the non-movant relies on circumstantial evidence at summary judgment,
the Court must determine whether the inferences to be drawn from such evidence are
plausible. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 743 (11th Cir. 1996) (citations
omitted). Summary judgment may be granted only if “no reasonable jury may infer
from the assumed facts the conclusion upon which the non-movant’s claim rests.” Id.
On the other hand, in the face of a clear denial of knowledge by the decisionmaker, a
plaintiff cannot withstand summary judgment through mere speculation about what
the decisionmaker might have been told. In Clover v. Total Sys. Servs., Inc., 176 F.3d
23

1346, 1355 (11th Cir. 1999), a retaliation case, the court found that evidence that the
decisionmaker spoke with a person who knew about the protected activity before
taking the adverse action did not create a reasonable inference that the decisionmaker
learned about the protected activity during that conversation; such an inference
amounted to “pure speculation,” because “‘could have told’ is not the same as ‘did
tell.’” Here, however, the testimony of two witnesses that Knight would have—not
‘could have’—shared Branyan’s disclosure with Von Blomberg if it had occurred raises
the inference from speculation to plausible. See, e.g., Whiteside v. PCC Airfoils LLC, No.
5:21-cv-62, 2023 WL 2787977, *11 (S.D. Ga. April 5, 2023) (witness agreed that if
plaintiff had complained to him about race discrimination, she would have called
decisionmaker to discuss it; that testimony combined with the fact that a call took place
soon after disclosure created a genuine dispute of fact). Accordingly, the Court will
assume that Knight followed her practice in Branyan’s case.
Nonetheless, this assumption leads to the same conclusion as the August 24
voicemail. Knight’s and Von Blomberg’s testimony indicates that it was Knight’s
required practice to notify Von Blomberg that an applicant was taking prescription
medications that might cause a drug test to fail. Doc. 62-2 at 193; Doc. 62-3 at 93-94.
To the extent Branyan disclosed to Knight that the reason she took medications was
that she had a disability within the meaning of the ADA, there is no indication that
Knight was required to or that it was her practice to share that information with Von

24

Blomberg. 9 She could have, but the EEOC’s requested inference that she did amounts
to “pure speculation” that cannot withstand summary judgment. See Clover, 176 F.3d
at 1355. The Court has already concluded that the information that Branyan took
unspecified prescription medications that may cause a drug test to fail did not give Von
Blomberg actual knowledge that Branyan was disabled. Accordingly, because no
reasonable jury could conclude Von Blomberg had actual knowledge that Branyan was
disabled, the EEOC cannot demonstrate causation, or, as a result, make out a prima
facie case of disability discrimination. Defendants are entitled to summary judgment
as to Count I.
3. Failure to Accommodate (Count II)
An employer unlawfully discriminates against an otherwise qualified person
with a disability when it fails to provide a reasonable accommodation for the disability.

9

See Doc. 62-2 at 193:

Q: If Ms. Branyan had mentioned her PTSD status to Ms. Knight
during the interview, is that something Ms. Knight should have
told you?
A: Not necessarily. If it was something that was not going to affect
the performance of the position, then not necessarily.
The Court acknowledges Knight’s testimony that, “[i]f during the interview Ms.
Branyan mentioned to you that she was a veteran with PTSD,” she “would have
initiated [Branyan] with [Von Blomberg] to get any documentation needed.” Doc. 623 at 93. However, in the context of the questions and answers that surrounded this
statement, the only plausible interpretation is that Knight was referring to
documentation of medications, as she went on to explain, rather than documentation
of PTSD. There is no evidence that Knight was required to notify or in the practice of
notifying Von Blomberg about applicants’ medical conditions or that she believed
documentation was needed for any purpose other than prescriptions for the drug test.
25

Boyle v. City of Pell City, 866 F.3d 1280, 1289 (11th Cir. 2017) (citation omitted). A
failure to accommodate is actionable under the ADA if it negatively impacts, inter alia,
a potential employee’s hiring. Beasley v. O’Reilly Auto Parts, 69 F.4th 744, 754 (11th Cir.
2023). “To trigger an employer’s duty to provide a reasonable accommodation, the
employee must (1) make a specific demand for an accommodation and (2)
demonstrate that such an accommodation is reasonable.” Owens v. Governor’s Office of
Student Achievement, 52 F.4th 1327, 1334 (11th Cir. 2022), citing Frazier-White v. Gee,
818 F.3d 1249, 1255-56 (11th Cir. 2016). At that point, the employer must “initiate
an informal, interactive process with the employee to discuss the employee’s specific
limitations, explore potential accommodations, and select the most appropriate
accommodation for both the employer and the employee.” Owens, 5 F.4th at 1334. 10
Princess Martha argues that Branyan did not trigger Princess Martha’s duty to
initiate an interactive process because she did not make a specific demand for an
accommodation “due to her PTSD.” Doc. 58 at 21. Even if she disclosed her PTSD
diagnosis to Knight at the interview, “she did not link her alleged disability to the
prescriptions she was taking” as required by Owens. Id. at 22-23. Knight did not review
Branyan’s medication labels, and Princess Martha was not obligated to speculate
about her need for prescriptions. Id.; Doc. 99 at 8. Princess Martha also argues that

Although the Eleventh Circuit was addressing a Rehabilitation Act claim instead of an
ADA claim in Owens, “[d]iscrimination claims under the Rehabilitation Act are governed by
the same standards used in ADA cases” and “[c]ases decided under the Rehabilitation Act
are precedent for cases under the ADA, and vice-versa.” Cash v. Smith, 231 F.3d 1301, 1305
n.2 (11th Cir. 2000).

10

26

the lack of a drug test result, which resulted from a “breakdown of communication
between BayCare, the lab, Branyan, and Princess Martha[,]” meant that a duty to
accommodate Branyan by reviewing her prescriptions never arose. Id.; Doc. 58 at 22.
With respect to the latter point, the EEOC contends that Von Blomberg failed
to accommodate Branyan when she refused to contact BayCare or the lab to follow up
about Branyan’s test results once Branyan notified her that there was a problem. Doc.
97 at 9, 23. The EEOC asserts that Princess Martha is responsible for any failure of
the lab or BayCare, and a “breakdown of communication” did not come from
Branyan. Id. at 22. Further, the EEOC argues that Branyan triggered the interactive
process when she identified her disability of PTSD and specified how the proposed
accommodation of providing proof of prescription medications would allow her to
comply with the drug test. Id. at 21-22. The EEOC contends that Knight’s refusal to
accept or review Branyan’s list of prescriptions does not insulate Princess Martha from
the obligation to engage in the interactive process. Doc. 110 at 4-5.
First, as the initial step in triggering the interactive process, the Court finds that
Branyan made a specific demand for an accommodation. See Owens, 52 F.4th at 1334.
Princess Martha’s view that Branyan’s requested accommodation could not occur
until there was a test result is too narrow. The accommodation Branyan requested in
this case was assistance with the drug test procedures in light of her need for
prescription medication. Branyan made clear to Knight at the interview and Von
Blomberg in the August 24 voicemail that she wanted to provide documentation of
prescriptions she believed would cause her to fail the drug test. Her voicemail sought
27

clarification regarding to whom Branyan should provide the documentation. To the
extent Von Blomberg believed Branyan was required to provide it to the lab or
BayCare, 11 Branyan’s statement in the voicemail that the lab told her she needed to
give it to Princess Martha instead and her request for a call back can be fairly
interpreted as a request for an accommodation in the form of assistance with the testing
procedures. A reasonable jury could find that Von Blomberg should have engaged in
an interactive process at that point—which may have uncovered the lost sample
problem—rather than simply rejecting Branyan because there was no test result. 12
Accordingly, there are genuine disputes of fact as to Branyan’s specific demand for
accommodation.
There are also genuine disputes of fact as to whether Branyan demonstrated that
her requested accommodation was reasonable, as the second step in triggering the
interactive process. In Owens, the Eleventh Circuit elaborated on the requirement that
an employee demonstrate that their requested accommodation is reasonable: the
employee must: (a) “identify her disability,” and (b) “suggest how the accommodation
Von Blomberg’s testimony about the procedure was unclear. She testified that an applicant
was required to provide medication information to the lab only, but also stated that she would
review a prescription list herself if she saw a positive test result. See Doc. 62-2 at 171-72, 19395.
12
Von Blomberg testified that her hands were tied unless and until eScreen displayed a test
result of positive, negative, or cancelled, because it was not her practice to contact BayCare
to follow up about applicants’ tests. Doc. 62-2 at 201-02, 212. But aside from her practice,
which she later changed anyway, she did not identify any obstacle that prevented her from at
least attempting to contact her BayCare representative on Branyan’s behalf after receiving the
voicemail. Or, at a minimum, Von Blomberg could have called Branyan back to learn more
about what was going wrong. Her decision to reject Branyan instead of taking these actions
could lead a reasonable jury to find that her failure to accommodate negatively impacted
Branyan’s hiring. See Beasley, 69 F.4th at 754.
11

28

will overcome her physical or mental limitations.” 52 F.4th at 1334. With respect to
the first prong, the employee “must identify—at least in broad strokes—the limitations
her mental or physical condition imposes.” Id. at 1335. The “type and extent” of
information the employee must provide about her disability will depend on the amount
of information needed to understand the link between her limitations and the
requested accommodation. Id. at 1335-36. Even where additional information is
needed to make the link clear, the court stated that it “expect[s] an employee’s
informational burden to be modest.” Id. at 1336. The disclosure of “detailed or private
information about [a] disability” is not required to trigger the employer’s duty to
engage in an interactive process, since detailed information about a disability “may be
irrelevant to identifying and justifying accommodations[.]” Id. (quotation omitted).
Branyan testified that she informed Knight that she was a “veteran with PTSD.”
Doc. 62-1 at 85; see 29 C.F.R. 1630.2(j)(3)(iii) (“it should be easily concluded” that
PTSD substantially limits brain function).

She also told both Knight and Von

Blomberg that she takes prescription medications that would cause her to fail a drug
test.

And, significantly, she specified to Knight that they were “psychiatric

medications.” Doc. 93-8 at 3. 13 Although she did not tell Knight the names of the

Princess Martha asks the Court to disregard the statement in Branyan’s EEOC charge that
she disclosed that she takes “psychiatric medications” because it contradicts her deposition
testimony, is inadmissible hearsay, and is an unsworn statement. Doc. 99 at 3-5. These
arguments are unavailing. First, there is no contradiction. In response to the question “Did
you tell [Knight] that you at the time took Adderall, Valium, and Abilify?” Branyan testified
that she “certainly did not tell her the list.” Doc. 62-1 at 81. That she did not state the specific
names of her medications does not mean she did not describe them as “psychiatric
medications” when discussing the drug test. The testimony is therefore not inconsistent. (…)
13

29

medications, she handed the prescription labels to Knight to review; Knight declined
to do so. Id. at 80-81, 85.
If the jury credits Branyan’s testimony, the information she disclosed to Knight
was sufficient to satisfy her modest burden of identifying a statutory disability.
Moreover, she linked her disclosed disability to an accommodation by asking if she
could provide documentation of her prescriptions for psychiatric medications that
would cause her to fail a drug test. Cf. Chandler v. Sheriff, Walton Cnty., No. 22-13698,
2023 WL 7297918, *6 (11th Cir. Nov. 6, 2023) (the plaintiff’s “general discussion”
with his employer about his “depression and PTSD—with no specific mention that
Chandler considered these common conditions disabling and no request by Chandler
for accommodations or medical paperwork corroborating his claims—did not put [the
employer] on notice” about his statutory disability or trigger the employer’s duty to
accommodate); Owens, 52 F.4th at 1336-37 (plaintiff’s disclosure of conditions and
procedures that may cause a disability did not identify a specific impairment that
substantially limits a major life activity). Accordingly, there are genuine disputes of

(…) Moreover, the EEOC is correct that the contents of the EEOC charge can be
reduced to admissible form through Branyan’s testimony at trial. Doc. 110 at 3 n.1; see Macuba
v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999). Testimony about what Branyan told Knight
would not be considered hearsay if it is offered for its effect on the listener rather than the
truth of the alleged statement. See Fed. R. Evid. 801(c). Finally, contrary to Princess Martha’s
contention, an EEOC charge of discrimination is a sworn statement that complies with Rule
56. See, e.g., Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001) (discussing
regulations governing EEOC charges, including requirement that they are sworn or signed
under penalty of perjury).

30

material fact as to whether Princess Martha failed to accommodate Branyan’s
disability. Defendants are not entitled to summary judgment as to Count II.
C. EEOC’s Motion (Doc. 65)
In its motion for partial summary judgment, the EEOC seeks summary
judgment in its favor on two of Princess Martha’s affirmative defenses: affirmative
defense numbers six and nine.
1. Affirmative Defense No. Six
Princess Martha’s sixth affirmative defense states:
Charging Party’s claims are barred by the doctrines of estoppel and
unclean hands to the extent that Charging Party’s own conduct
contributed to her alleged damages.
Doc. 29 at 15. The EEOC argues that there is no evidence to support the defenses of
estoppel or unclean hands. Doc. 65 at 6-11. To the extent that the doctrine of equitable
estoppel and unclean hands may be applied against the federal government, it requires
a showing of affirmative and egregious misconduct by government agents, but no
evidence supports such a finding in the EEOC’s handling of the case. Id. at 6-8, 9-11.
Further, Branyan’s conduct cannot support a finding of equitable estoppel or unclean
hands as a matter of law. Id. at 8-9, 11.
Responding in opposition, Princess Martha argues that material facts in dispute
could support the defense of equitable estoppel. Doc. 94 at 4-7. 14 Specifically, the

The Court declines Princess Martha’s invitation to deny the EEOC’s motion on the ground
that it did not set forth its statement of facts in separate, numbered paragraphs or include
pinpoint citations. See Doc. 94 at 1-3.
14

31

EEOC failed to disclose to Princess Martha that Branyan damaged and disposed of
her cell phone in December 2021, despite Princess Martha’s discovery request for all
relevant recordings. Id. Princess Martha contends that the cell phone is critical because
it contained a voicemail that Princess Martha left for Branyan on August 25, 2021,
and its loss prejudiced Princess Martha. Id. at 4, 6. 15 Princess Martha does not argue
that any evidence supports the defense of unclean hands.
In reply, the EEOC argues that Princess Martha misrepresents the evidence and
fails to establish that any alleged discovery violation would be a basis for asserting
equitable estoppel against a government agency. Doc. 101.
The defense of equitable estoppel has the following elements in the Eleventh
Circuit:
(1) the party to be estopped misrepresented material facts; (2) the
party to be estopped was aware of the true facts; (3) the party to be
estopped intended that the misrepresentation be acted on or had
reason to believe the party asserting the estoppel would rely on it;
(4) the party asserting the estoppel did not know, nor should it
have known, the true facts; and (5) the party asserting the estoppel
reasonably and detrimentally relied on the misrepresentation.
Dawkins v. Fulton Cnty. Gov't, 733 F.3d 1084, 1089 (11th Cir. 2013), quoting Busby v.
JRHBW Realty, Inc., 513 F.3d 1314, 1326 (11th Cir. 2008). With respect to the element
of detrimental reliance, the party claiming estoppel “must have relied on its adversary’s
conduct in such a manner as to change [its] position for the worse, and that reliance

The loss of the alleged voicemail was the subject of Defendants’ motion for spoliation
sanctions against the EEOC. See Doc. 39. On June 7, 2024, after an evidentiary hearing, the
magistrate court issued an order denying the motion because Defendants failed to meet their
burden of proof that a voicemail message existed. Doc. 112 at 5-7.
15

32

must have been reasonable in that the party claiming the estoppel did not know nor
should have known that its adversary’s conduct was misleading.” Heckler v. Cmty.
Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 59 (1984) (quotation omitted).
The Supreme Court and the Eleventh Circuit have expressed doubt that the
doctrine of equitable estoppel applies to estoppel claims against the federal
government. See, e.g., Sanz v. U.S. Sec. Ins. Co., 328 F.3d 1314, 1319 (11th Cir. 2003)
(collecting cases). To the extent the doctrine is available against the government, “it
is warranted only if affirmative and egregious misconduct by government agents
exist.” Id. at 1319-20 (citations omitted).
Viewing the evidence regarding the disposal of Branyan’s cell phone in the light
most favorable to Princess Martha, no reasonable juror could conclude that the EEOC
engaged in affirmative and egregious misconduct that establishes the defense of
equitable estoppel.

Princess Martha asserts that it relied on the EEOC’s

misrepresentations in December 2022 and March 2023 that it would produce all
relevant recordings and that it had taken appropriate steps to ensure that individuals
under its control maintained any potentially discoverable material. Doc. 94 at 4. But
Princess Martha fails to explain how it relied on these alleged misrepresentations, and
in what manner its reliance changed its position for the worse. See Heckler, 467 U.S. at
59. If Branyan damaged and disposed of the phone in or around December 2021, it is
unclear what negative impact the EEOC’s representations a year or more later could

33

have had.16 See Dawkins, 733 F.3d at 1089 (“While detrimental reliance can still exist
when a misrepresentation causes [a party] to refrain from taking mitigating action, the
[party] must still assert a causal link and show damages from the misrepresentation.”)
(citations omitted). Even assuming, without deciding, that Princess Martha could
establish the other elements of equitable estoppel and that a reasonable jury could find
that the EEOC’s actions were egregious, there is no genuine dispute of fact as to
Princess Martha’s detrimental reliance.

Accordingly, the EEOC is entitled to

summary judgment on this affirmative defense and it will be stricken.
2. Affirmative Defense No. Nine
Princess Martha’s ninth affirmative defense states:
To the extent that any of the Charging Party’s claims relate to
persons or matters which were not made the subject of a timely
charge of discrimination filed with the EEOC/FCHR or were not
investigated or conciliated by the EEOC/FCHR, Charging Party’s
claims are barred under the ADA.
Doc. 29 at 16. The EEOC argues that it is entitled to summary judgment in its favor
on this defense because the uncontroverted facts show that the EEOC met conditions
precedent with respect to its claims against Princess Martha before filing the instant
lawsuit. Doc. 65 at 11-12.
In response, Princess Martha argues that the EEOC is pursuing claims for
derivative liability against the TJM entities that are not covered within Branyan’s

In their motion for spoliation sanctions, Defendants explained that T-Mobile, the only
alternative source of the voicemail message, retains voicemail messages for only 30 days. Doc.
39 at 7. Accordingly, Princess Martha cannot argue that it could have obtained the message
itself but for its detrimental reliance on the EEOC’s 2022 and 2023 misrepresentations.

16

34

charge of discrimination, triggering the ninth affirmative defense. Doc. 94 at 7-12. The
EEOC replies to clarify that it seeks summary judgment on the affirmative defense
only with respect to Princess Martha, not the TJM entities. Doc. 101 at 9-10.
However, Princess Martha’s response in opposition states that “the allegations in the
Amended Complaint attempting to attach liability to Defendant”—Princess Martha—
“based upon actions of Defendants TJM Properties, Inc. and TJM Property
Management, Inc. are outside the scope of” the charge of discrimination. Doc. 94 at
10 (emphasis added). Thus, it appears that Princess Martha is asserting that conditions
precedent were not met with respect to the claims against Princess Martha, not just the
TJM entities, because of the allegations of joint liability flowing from the relationship
between the three entities.
Yet, despite Princess Martha’s general contention, it has failed to identify any
specific allegation that Princess Martha is liable for conduct by TJM Properties or TJM
Property Management; nor does the record evidence support such a theory. Rather,
the EEOC claims that the TJM entities are liable for Princess Martha employees’
conduct under joint employer and integrated enterprise theories. Princess Martha
therefore fails to identify specific facts that could support this affirmative defense. See
Booth v. Pasco Cnty., Fla., 829 F.Supp.2d 1180, 1195-96 (M.D. Fla. 2011) (denying
partial summary judgment to plaintiff on similar affirmative defenses where defendant
alerted court to specific facts in possible support of them; granting it with respect to
another affirmative defense where defendant presented no evidence that might support
it).

In addition, the Court has already concluded that the EEOC satisfied the
35

conditions precedent with respect to its claims against the Princess Martha. See Doc.
27 at 8. Accordingly, the EEOC’s motion for partial summary judgment on the
Princess Martha’s ninth affirmative defense, with respect to Princess Martha only, is
due to be granted. The Princess Martha’s ninth affirmative defense will be stricken.
D. Motions by TJM Defendants (Docs. 59, 61)
The EEOC contends that TJM Properties and TJM Management are liable for
the alleged ADA violations because they are joint employers and/or an integrated
enterprise with Princess Martha. See Doc. 24. TJM Properties and TJM Management
each move for summary judgment based on challenges to these theories and the issue
of administrative exhaustion. Docs. 59, 61. TJM Management argues that the EEOC
failed to exhaust administrative remedies, because the EEOC charge and investigation
did not include allegations regarding the joint employer or integrated enterprise
theories, and the EEOC did not name TJM Management as a respondent, satisfy the
conciliation requirements, or amend the charge of discrimination. Doc. 59 at 6-13.
Both TJM Management and TJM Properties also make identical arguments that the
EEOC exceeded its administrative authority by bringing suit against them when they
were not named in the charge of discrimination. Id. at 4-6; Doc. 61 at 11-13. Finally,
TJM Properties asserts that there is no reasonable view of the evidence that supports

36

a joint employer relationship between TJM Properties and Princess Martha. Id. at 1316. 17 The EEOC filed a single response in opposition to both motions. Doc. 96.
1. Relevant Facts 18
a. TJM Entities’ Roles and Responsibilities
Princess Martha’s majority owner, at 84 percent, is the Terence J. McCarthy
Family Trust (“the Trust”). Doc. 95 ¶ 7. Terence McCarthy is the Trust’s grantor and
sole trustee. Id. ¶ 12. As sole trustee, he serves as the managing member of Princess
Martha and has “exclusive authority to manage [its] operations and affairs[.]” Id. ¶ 21;
Doc. 92-15 at 10.

The Trust also owns, inter alia, 100 percent of two Florida

corporations: TJM Property Management, Inc., and TJM Properties, Inc.
(collectively, “the TJM entities”). Doc. 95 ¶¶ 13, 16. Terence McCarthy is the director,
president, and secretary of both TJM entities. Id. ¶¶ 15, 17. He is the registered agent
of all three companies. Id. ¶ 19.
Both TJM entities do business under the name “TJM Properties” and “TJM
Properties Inc.” See Doc. 92-54 at 147-149; Doc. 62-6 at 72-73; Doc. 62-5 at 56-57.
They share a logo, an email domain, and a website, www.tjmproperties.us, which does
not differentiate between them or indicate that two distinct companies exist. Id.; Doc.
92-6. Under the heading “Who We Are,” the website states: “TJM Properties Inc. is

TJM Properties also argued in its motion for summary judgment that the evidence does not
support a finding under the integrated enterprise theory. Doc. 61 at 16-22. However, its reply
concedes that there is a genuine dispute of fact as to this issue. Doc. 98 at 4 n.1.
17

18

See n.1, supra.
37

a real estate acquisition and management firm specializing in hotels and senior living,”
and it lists employees of both companies. Id. at 2. Employees of both companies
identify “TJM Properties” or “TJM Properties Inc.” as their employer in their email
signatures and LinkedIn profiles, irrespective of which company issues their paycheck.
Docs. 92-8, 92-10, 92-12, 92-14, 92-31; Doc. 92-54 at 156. The TJM entities share an
office suite in Clearwater, Florida, which some Princess Martha employees referred to
as “the corporate office.” Doc. 95 ¶ 18; see Doc. 62-5 at 48; Doc. 62-2 at 40.
TJM Management is the managing company for Princess Martha and other
senior living facilities owned by the Trust. Doc. 92-3; Doc. 92-54 at 13; Doc. 80-1 at
261-62. TJM Management’s regional controller had access to the bank accounts of all
Trust-owned facilities, and its regional director of operations oversaw the facilities’
executive directors. Doc. 62-2 at 47-48; Doc. 92-54 at 52-60; Doc. 62-5 at 61, 96-97,
129-30; Doc. 80-1 at 59, 61-62, 96-97.
Princess Martha’s employees understood TJM Management to be Princess
Martha’s “parent company,” a term used in the employee handbook. Doc. 80-1 at 104;
Doc. 62-2 at 114. Princess Martha’s executive director spoke to TJM Management’s
regional director of operations daily with updates about the day-to-day operations of
Princess Martha. Doc. 80-1 at 264-65. She also met with Terence McCarthy every
month, although she testified that she did not need his authorization to make
decisions. Doc. 80-1 at 274-76. TJM Management handled the hiring process when
Von Blomberg came on as Princess Martha’s HR director and business manager; she

38

interviewed only with TJM Management employees, and the job posting referred only
to TJM rather than Princess Martha. Doc. 62-2 at 40-50.
TJM Management also supervised Von Blomberg in performing some regional
HR duties for Trust-owned companies. See generally Doc. 62-2; Doc. 92-18. Von
Blomberg’s regional duties included updating the employee handbooks, performing
some functions related to payroll and benefits, training and running monthly meetings
with other facilities’ HR directors, and ensuring other facilities’ compliance with the
ADA. Id. at 64-67, 113-162. The employee handbook she updated was used by
Princess Martha, TJM Management, TJM Properties, and other senior living facilities.
Id. at 64-65; Doc. 92-20.
TJM Properties, Inc.’s work involves property acquisition and real property
management of Trust-owned facilities across the nation. See Doc. 62-6 at 41-44; Doc.
62-5 at 115-16. The record evidence primarily discusses TJM Properties employees
Matt Bradley and Dale Schooley. Doc. 62-6 at 41-44, 65-66. Both of them handled
Trust-owned properties’ property and casualty insurance as well as some tax
paperwork. Id.; Doc. 62-5 at 84-85; Docs. 92-32, 92-33, 92-34. Bradley and Schooley
worked with TJM Management in connection with a bank loan for Princess Martha.
Docs. 92-26, 92-27. They also worked with Princess Martha employees directly:
Schooley assisted Von Blomberg when she had questions about the rental agreements
of the commercial businesses to which Princess Martha rented its ground floor,
because Schooley had established those agreements, while Bradley and Von Blomberg
communicated about the management of Princess Martha’s parking garage. Doc. 6239

2 at 74, 86-87. Once, after a taxi collided with the parking garage door, Terence
McCarthy signed a letter establishing Bradley as an “Authorized Employee” of
Princess Martha in the resulting small claims court case so that Bradley could serve as
Princess Martha’s company representative. Doc. 92-36. However, Princess Martha’s
executive director testified that—unlike with TJM Management employees—she did
not report to Bradley or Schooley and they did not have authority over her. Doc. 80-1
at 270-71, 272-73.
b. EEOC Investigation and Procedural History
Branyan’s charge of discrimination and amended charge of discrimination, filed
on November 21 and 23, 2021, named only Princess Martha as a respondent. Docs.
65-1, 65-2. The EEOC sent a notice of the charge of discrimination and an amended
notice of the charge of discrimination to Princess Martha on November 23 and 30,
2021. Docs. 65-3, 65-4. Princess Martha immediately alerted TJM Management about
the charge, as required by the Management Agreement between them. Doc. 92-54 at
134-36. On April 5, 2022, Von Blomberg sent Don Dunkle, then-regional director of
operations for TJM Management, “all documents submitted to EECO in dispute with
Sarah Branyan’s claim.” Doc. 92-44. Dunkle forwarded Von Blomberg’s email to
another TJM Management executive, stating that he did not “see any need for outside
counsel at this point” because Von Blomberg “has it under control.” Id.
The EEOC sent notice of the charge of discrimination to TJM Properties on
May 25, 2022. See Doc. 59 at 2. On May 31, 2022, Matt Bradley forwarded the charge
of discrimination to TJM Management’s regional controller, to whom Von Blomberg
40

provided more information in response to his request. Doc. 92-45. Bradley sent a
response to the EEOC on behalf of TJM Properties on June 1, 2022. Doc. 92-46. On
June 29, 2022, the EEOC contacted Bradley to schedule a pre-determination interview
and notified him that it believed TJM Properties and Princess Martha were joint
employers. Doc. 92-49.
On June 27, 2022, Von Blomberg sent a draft rebuttal letter to Princess Martha’s
executive director and TJM Management’s regional director of operations and
regional controller for their review. Doc. 92-47. The regional controller forwarded it
to Bradley, who notified Von Blomberg and all the initial recipients that “Terry
[Terence McCarthy] wants to engage an attorney on this. … Please hold off on the
response letter until the attorney can review.” Id. Von Blomberg complied, and
testified in her deposition that she understood Bradley’s statement to be an instruction
she needed to obey. Doc. 62-2 at 267. However, if he had given her a different
instruction about the EEOC investigation, such as directing her to negotiate a
settlement, she explained that she would have asked the executive director if she
should obey him. Id. at 267-68.
The EEOC issued a letter of determination to Branyan and the respondents,
Princess Martha and “TJM Properties, Inc.,” on July 6, 2022. Doc. 65-5. The letter
notified them of the EEOC’s determination that reasonable cause existed to believe
that the respondents discriminated against Branyan due to her disability, and it invited
the respondents to participate in conciliation. Id.

41

Von Blomberg immediately

forwarded the letter to Princess Martha’s executive director and TJM Management’s
regional director of operations and regional controller. Doc. 92-52.
Princess Martha and TJM Properties participated in conciliation, see Doc. 10 ¶
15, unsuccessfully, and the EEOC filed the instant lawsuit. Doc. 1. TJM Properties
and TJM Management subsequently filed a joint motion to dismiss in which they
argued, inter alia, that the EEOC had not exhausted its administrative remedies
because the charge of discrimination did not name them as respondents or contain
allegations regarding a joint employer relationship or integrated enterprise, the EEOC
did not investigate those theories, TJM Properties did not receive notice until long
after the charge was filed, and TJM Property Management was never notified. Doc.
30 at 5-13. The Court issued an Order on December 11, 2023, denying the motion to
dismiss. Doc. 69.
2. Exhaustion of Administrative Remedies
First, both TJM entities argue in their motions for summary judgment that the
EEOC failed to exhaust its administrative remedies with respect to the claims against
them, because only Princess Martha was named in the charge of discrimination. Both
entities contend that the EEOC has exceeded its executive authority under 29 C.F.R.
1601.27, and TJM Property Management also makes a specific exhaustion argument
that mirrors the arguments in TJM’s motion to dismiss.
a. 29 C.F.R. 1601.27
29 C.F.R. 1601.27 authorizes the EEOC to “bring a civil action against any
respondent named in a charge” of discrimination.
42

TJM emphasizes the word

“named,” arguing that the EEOC exceeds its regulatory authority when it sues a party
that was not named in the charge. Doc. 59 at 4-6; Doc. 16 at 11-13. Although they
acknowledge that there is a liberal naming requirement for a “person” seeking to file
a lawsuit, they posit that a different standard applies to suits filed by the EEOC,
pursuant to the plain language of 29 C.F.R. 1601.27. Doc. 98 at 1-2. Aside from the
regulatory language, however, TJM does not cite any authority for its contention that
a different standard applies for suits filed by the EEOC. The Court is not persuaded
that it does.
The Court explained the exhaustion requirements in its December 11, 2023
Order:
Before bringing suit under the ADA, plaintiffs are required to
exhaust their administrative remedies by filing a charge of
discrimination with the EEOC. Batson v. Salvation Army, 897 F.3d
1320, 1327 (11th Cir. 2018). The purpose of the exhaustion
requirement is to allow the EEOC to “have the first opportunity to
investigate the alleged discriminatory practices[.]” Gregory v. Ga.
Dep’t of Human Resources, 355 F.3d 1277, 1279 (11th Cir. 2004)
(citations and quotations omitted). Administrative exhaustion is
a jurisdictional prerequisite to a discrimination claim. Peppers v.
Cobb Cnty., Ga., 835 F.3d 1289, 1296-97 (11th Cir. 2016)
(quotation omitted).
Nonetheless, the Eleventh Circuit is
“extremely reluctant to allow procedural technicalities to bar
claims brought under discrimination statutes.” Batson v. Salvation
Army, 897 F.3d 1320, 1327, quoting Gregory, 355 F.3d at 1280
(modification omitted). As such, “the scope of an EEOC
complaint should not be strictly interpreted.” Id.
In general, only a party named in an EEOC charge can be sued in
a subsequent lawsuit. Id. at 1296, citing Virgo v. Riviera Beach
Associates, Ltd., 30 F.3d 1350, 1358 (11th Cir. 1994). However,
courts “liberally construe” the naming requirement. Peppers, 835
F.3d at 1296. To determine whether a party not named in the

43

EEOC charge may be sued, courts consider several non-exclusive
factors:
(1) the similarity of interest between the named party and
the unnamed party; (2) whether the plaintiff could have
ascertained the identity of the unnamed party at the time the
EEOC charge was filed; (3) whether the unnamed parties
received adequate notice of the charges; (4) whether the
unnamed parties had an adequate opportunity to participate
in the reconciliation process; and (5) whether the unnamed
party actually was prejudiced by its exclusion from the
EEOC proceedings.
Doc. 69 at 8-9, quoting Virgo v. Riviera Beach Associates, Ltd., 30 F.3d 1350, 1359 (11th
Cir. 1994).
The Virgo holding follows from the long-standing rule that the scope of an
EEOC charge should not be strictly interpreted. See Sanchez v. Standard Brands, Inc.,
431 F.2d 455, 465 (5th Cir. 1970). 19 The former Fifth Circuit relied on the same
principle to hold—in a case brought by the EEOC—that a charge of discrimination is
sufficient to trigger an investigation into “all practices which can reasonably be
expected to grow out of the charge of discrimination.” Equal Emp. Opportunity Comm'n
v. Brookhaven Bank & Tr. Co., 614 F.2d 1022, 1024-25 (5th Cir. 1980), quoting Sanchez,
431 F.2d at 466; see also Brookhaven, 614 F.2d at 1025 (“If the employer has notice of
the charge and has been offered an opportunity to remedy the problem without
litigation, it should not be allowed to avoid enforcement of the law because the original
charge filed with the EEOC [by] the aggrieved party is slightly different from the

In Bonner v. Pritchard, 661 F.2d 1206 (11th Cir. 1981), the Eleventh Circuit adopted as
binding precedent all decisions of the former Fifth Circuit decided prior to October 1, 1981.
19

44

complaint filed in court by the EEOC.”). Just as the flexibility that is given to the
scope of an EEOC charge applies to suits brought by either individuals or the EEOC,
so too should Virgo’s holding that courts may “liberally construe” the naming
requirement as long as “the purposes of [the discrimination statute] are fulfilled.” 30
F.3d at 1358-59.
Indeed, courts have applied Virgo’s holding to cases brought by the EEOC. See,
e.g., Equal Emp. Opportunity Comm'n v. Universal Diversified Enterprises Inc., No. 1:18-cv23573, 2019 WL 13255689, *8 (S.D. Fla. Feb. 27, 2019); Equal Emp. Opportunity
Comm'n v. Lab. Sols. of AL LLC, No. 4:16-cv-1848, 2017 WL 4956420, *3 (N.D. Ala.
Nov. 1, 2017).
Moreover, the statutory language on which 29 C.F.R. 1601.27 is based does not
support TJM’s argument. 29 C.F.R. 1601.27 is the implementing regulation for 42
U.S.C. § 2000e-5, the enforcement provision of discrimination laws. See 42 U.S.C. §
12117(a) (enforcement actions under the ADA are governed by the procedures set
forth in § 2000e-5).

Under § 2000e-5(f)(1), just like 29 C.F.R. 1601.27, “the

Commission may bring a civil action against any respondent…named in the charge”
of discrimination. However, the same subsection uses identical phrasing to describe
the naming requirement that applies to suits brought by individuals: “[A] civil action
may be brought against the respondent named in the charge…by the person claiming
to be aggrieved[.]” The Virgo court was therefore construing the same phrasing, within
the same statutory subsection, that TJM rely on now.

45

Accordingly, the Court will not strictly construe the naming requirement in 29
C.F.R. 1601.27. It will instead apply the Virgo factors, just as it would be required to
do in a suit brought by an individual.
b. The Virgo Factors
The Court’s December 11, 2023 Order contained a detailed analysis of the Virgo
factors in response to the TJM entities’ argument in their motion to dismiss that the
EEOC had not exhausted its administrative remedies. Doc. 69 at 10-17. The TJM
entities rely on identical arguments in their motions for summary judgment, arguing
that the Virgo factors weigh in their favor, that the EEOC did not provide adequate
notice that it was proceeding against the TJM entities on theories of joint employer or
integrated enterprise liability, and that it was required to amend the charge of
discrimination to include those theories. Doc. 59 at 6-13; Doc. 61 at 11 n.2; see Doc.
30 at 7-13. The TJM entities neither reference the prior Order nor identify a basis for
reconsidering its findings. Absent grounds to do so, the Court declines to reconsider
its rejection of the TJM entities’ legal arguments in the December 11, 2023 Order.
Of course, some of the conclusions in the prior Order must be revisited to the
extent that they relied upon allegations in the Complaint, which the Court accepted as
true when ruling on the joint motion to dismiss. See Doc. 69 at 2 n.1. Now, on
summary judgment, the Court no longer accepts those allegations as true. Instead, it
must view the record evidence in the light most favorable to the EEOC and draw all
reasonable inferences in its favor. See, e.g., Shotz v. City of Plantation, Fla., 344 F.3d
1161, 1164 (11th Cir. 2003). Accordingly, it will review the December 11, 2023 Order
46

to determine whether there is record evidence to support the allegations in the
Complaint upon which its legal conclusions rested.
First, the evidence continues to support a finding that there is a similarity of
interests between the Princess Martha and the TJM entities for the purpose of the first
Virgo factor. The Court previously relied on allegations that all three entities “share
common ownership and management” and have interrelated operations. Doc. 69 at
10-11. The EEOC has offered undisputed evidence indicating that Terence McCarthy
is the registered agent and sole trustee of the trust that is either the owner or the
majority owner of all three defendants. Doc. 95 ¶¶ 13-14, 19-20. McCarthy is the
president of both TJM entities and the managing member of Princess Martha, which
gives him the authority to make all management decisions. Id. ¶¶ 15, 17, 21; Doc. 9215 at 2, 10; Doc. 80-1 at 276. Further, all three defendants share legal counsel. This
evidence is sufficient to establish the first Virgo factor in the EEOC’s favor.
The second factor, whether Branyan could have ascertained the TJM entities’
identity at the time she filed the EEOC charge, still does not weigh in favor of either
party. The TJM entities continue to rely on an email that TJM Management sent to
Branyan in connection with her application. Doc. 59 at 10; Doc. 92-53. 20 The email
was from “TJM Property Management Inc.,” had a subject line of the same name, and
referred to “The Princess Martha – Activity Coordinator position at our company.” Id.
(emphasis added). Although the EEOC points out that TJM Management had no

TJM Properties does not cite any evidence indicating that Branyan could have ascertained
its identity at the time she filed her charge of discrimination.
20

47

public presence by that name, see Doc. 96 at 3-4, it is possible that the email from TJM
Management could have put Branyan on notice of its existence. However, Branyan’s
explanation that she believed TJM was a typo for “TPM” (the Princess Martha), and
did not realize it was a separate company, Doc. 62-1 at 118-20, is not unreasonable.
Overall, this factor still weighs in neither party’s favor.
Next, the evidence supports a finding that the TJM entities received adequate
notice of the EEOC investigation and had the opportunity to conciliate.

TJM

Properties previously conceded it received actual notice of the investigation from the
EEOC’s May 2022 letter, and that it participated in conciliation. See Doc. 69 at 22;
Doc. 83 ¶ 23. Moreover, the record evidence bears out the EEOC’s allegation that the
TJM entities are closely related enough that the notice to TJM Properties gave
constructive notice to TJM Management as well, and that TJM Properties’
opportunity to conciliate may be imputed to TJM Management. See id. at 22, 24-25.
The TJM entities share an office suite, phone number, and receptionist, and Terence
McCarthy is the registered agent, president, director, and secretary for both. Doc. 95
¶¶ 15, 17-19; Doc. 92-54 at 149-50. Employees of both identify themselves as working
for “TJM Properties,” and the companies use the same logo, website, and email
domain. Id. at 148-52, 157-58; Doc. 92-7. TJM Management also received actual
notice about the EEOC charge from Princess Martha, which notified it “immediately”
after receiving the charge, and certainly by April 2022. Doc. 92-44; Doc. 92-54 at 31,
71-75, 134-36; Doc. 92-8. The evidence therefore supports a finding that the TJM

48

entities received notice of the EEOC investigation and had an opportunity to
conciliate.
The final Virgo factor is whether the unnamed parties were prejudiced by not
being named in the EEOC charge. For this factor, TJM Management offers the same
argument that the Court previously rejected: that “it is only reasonable to assume” it
was prejudiced. Doc. 59 at 10; see Doc. 69 at 16-17. Neither TJM entity identifies any
evidence that supports a finding of prejudice. And, as the Court noted in its December
11, 2023 Order, “courts have generally found that an unnamed party that had notice
and an opportunity to conciliate” does not suffer prejudice. Id. at 16 (collecting cases).
The Virgo factors therefore weigh in the EEOC’s favor, and against the TJM entities’
argument that the failure to name them in the charge of discrimination entitles them
to summary judgment.
Accordingly, for the reasons stated in this Order and the December 11, 2023
Order, which this Order incorporates by reference, the TJM entities are not entitled to
summary judgment based on an alleged failure to exhaust administrative remedies.
TJM Management’s motion for summary judgment is due to be denied.
3. Joint Employer Relationship
TJM Properties also moves for summary judgment in its favor based on its
argument that the evidence does not support a finding that TJM Properties and
Princess Martha are joint employers. Doc. 61 at 13-16.
In its response in opposition to TJM Properties’ motion for summary judgment,
the EEOC contends that all three defendants have a joint employer relationship; it
49

does not make specific arguments about the alleged joint employer liability of TJM
Properties and Princess Martha compared to that of TJM Management and Princess
Martha. See Doc. 96 at 29-30; see also id. at 23-29 (making combined argument as to
integrated enterprise). However, as will be discussed below, the joint employer theory
addresses the relationships of companies that are concededly separate entities. Thus,
the Court must determine whether there is sufficient evidence from which a reasonable
jury could conclude that TJM Properties only, not the TJM entities considered
together, may be held liable as a joint employer with Princess Martha.
In Virgo, the Eleventh Circuit adopted the standard for joint employment stated
in Nat’l Labor Relations Board (“NLRB”) v. Browning-Ferris Industries, 691 F.2d 1117 (3d
Cir. 1982):
The basis of the finding is simply that one employer while
contracting in good faith with an otherwise independent company,
has retained for itself sufficient control of the terms and conditions
of employment of the employees who are employed by the other
employer. Thus the joint employer concept recognizes that the
business entities involved are in fact separate but that they share or
co-determine those matters governing the essential terms and
conditions of employment.
Virgo, 30 F.3d at 1360, quoting NLRB, 691 F.2d at 1122 (emphasis added). The Virgo
court applied the NLRB standard in the context of a jurisdictional inquiry: to determine
whether two defendants could be combined to satisfy the definition of “employer” in
Title VII as an individual or firm with fifteen or more employees. See Virgo, 30 F.3d at
1359-61; 42 U.S.C. § 2000e(b). Because the record contained an adequate basis for the
district court’s finding that they were joint employers, the court concluded that both

50

defendants “could be subject to Title VII liability,” for jurisdictional purposes. Id. The
court went on to apply traditional agency principles to determine whether the
defendants were in fact liable. Id. at 1362.
The Eleventh Circuit later specified that joint employers are not strictly liable
for misconduct relating to employment in which they were uninvolved. In Llampallas
v. Mini-Circuits Lab, Inc., 163 F.3d 1236, 1244-45 (11th Cir. 1998), it found that an
entity that “had absolutely nothing to do with” the adverse employment decision could
not be liable for it even if the entity were considered a joint employer. Rather, in
discrimination cases the joint employment theory is meant to “concentrate on the
degree of control an entity has over the adverse employment decision on which the
Title VII suit is based.” Id. 21
The “basic question” that determines whether an entity is a joint employer who
may be sued in a discrimination suit is “who (or which entity) is in control of the
fundamental aspects of the employment relationship that gave rise to the claim.” Lyes
v. City of Riviera Beach, 166 F.3d 1332, 1345 (11th Cir. 1999). “An examination of this
question requires consideration of the totality of the employment relationship” at issue
in the claim. Peppers v. Cobb Cnty., Ga., 835 F.3d 1289, 1297 (11th Cir. 2016) (citation

Other circuit courts have cited Llampallas or Virgo in reaching the conclusion that being a
joint employer does not itself confer vicarious liability, and that a joint employer must bear
some responsibility for the discriminatory act to be liable. See, e.g., Burton v. Freescale
Semiconductor, Inc., 798 F.3d 222, 228-29 (5th Cir. 2015) (ADA context); Whitaker v. Milwaukee
Cnty., Wis., 772 F.3d 802, 811-12 (7th Cir. 2014) (ADA context); Torres-Negron v. Merck & Co.,
Inc., 488 F.3d 34, 41 n.6 (1st Cir. 2007) (several types of discrimination including ADA); see
also U.S. Equal Emp. Opportunity Comm’n v. Glob. Horizons, Inc., 915 F.3d 631, 641 (9th Cir.
2019), citing Burton and Whitaker.
21

51

omitted). In particular, courts consider how much control the alleged joint employer
exerted on the employee and whether the alleged joint employer had the power to hire,
fire, or modify the terms and conditions of his or her employment. Id. (citations
omitted); see also Tolar v. Bradley Arant Boult Commings, LLP, 997 F.3d 1280, 1300 (11th
Cir. 2021) (“Nor can Bradley Arant be liable under Title VII on a joint employer
theory…because there are no facts to suggest that Bradley Arant exercised any control
over [the party alleging discrimination]’s employment with the Bank.”), citing
Llampallas.
Here, the EEOC asserts that a joint employment relationship exists between all
three Defendants because Von Blomberg, who made the decision not to hire Branyan,
had regional HR duties and drafted the employee handbooks used by all TJM
companies in the region, including the anti-harassment and drug testing policies. 22
Doc. 96 at 29-30. These facts are inadequate to establish that TJM Properties, rather
than TJM Management, exerted control over Princess Martha’s hiring practices or
Von Blomberg’s actions with respect to Branyan. Taken to its logical conclusion, the
EEOC’s argument would create strict liability for all Trust-owned companies,
including the other senior living facilities, without any evidence of the subsidiaries’
involvement in the relevant employment or hiring decision, merely because they used
the same handbook. The law does not support this position.

Contrary to the EEOC’s characterization, the evidence does not demonstrate that Von
Blomberg drafted the handbooks or the relevant policies herself. See Doc. 62-2 at 250; Doc.
62-5 at 76-77. Even if she had, however, the same conclusion would be compelled.
22

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Viewed in the light most favorable to the EEOC, the record evidence supports
a finding that TJM Management employees exerted control over Princess Martha and
Von Blomberg. But none of those individuals were employed by TJM Properties, and
there is no evidence that any TJM Properties’ employee did the same. Contrary to the
EEOC’s arguments, neither Von Blomberg’s regional HR duties nor her work with
Matt Bradley on the Princess Martha parking garage could lead to a reasonable finding
of control by TJM Properties over Princess Martha’s hiring practices or its failure to
hire Branyan. 23 Nor is there any record evidence that supports such a finding. TJM
Properties is therefore entitled to summary judgment as to the theory that it is a joint
employer with the Princess Martha.
Accordingly, it is ORDERED:
1. Defendant The Princess Martha, LLC’s Motion for Summary Judgment
(Doc. 58) is GRANTED-IN-PART and DENIED-IN-PART.

As no

genuine issues of material fact exist as to Princess Martha’s lack of actual

The cases on which the EEOC relies are unavailing, because they are more relevant to the
evidence as it relates to TJM Management, not TJM Properties. Doc. 96 at 29-30. E.E.O.C.
v. Papin Enterprises, Inc., No. 6:07-cv-1548, 2009 WL 961108 (M.D. Fla. Apr. 7, 2009),
involved a franchisor and franchisee relationship in which the franchisor exerted some control
over the policy at issue in the discrimination suit. The EEOC misstates the holding of
E.E.O.C. v. Rooms to Go, Inc., No. 8:04-cv-2155, 2006 WL 580990, *9 (M.D. Fla. Mar. 8,
2006), where the court expressly did not decide the issue of a parent company’s alleged control
over the administration of its subsidiary’s anti-harassment policy—facts which are, in any
event, inapposite given the dearth of evidence that TJM Properties exercised control over
Princess Martha’s policies. Evidence of the other company’s promulgation of policies and
coordination of benefits with the primary employer in Burnett v. Ocean Properties, Ltd., 422 F.
Supp. 3d 400 (D. Me. 2019), and Laurin v. Pokoik, No. 02-cv-1938, 2004 WL 513999
(S.D.N.Y. Mar. 15, 2004), render those cases inapposite as well.
23

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knowledge of the Charging Party’s disability, all Defendants are entitled to
judgment in their favor as a matter of law as to Count I only. The motion is
otherwise denied.
2. Defendant TJM Property Management, Inc.’s Motion for Summary
Judgment (Doc. 59) is DENIED.
3. TJM Properties, Inc.’s Motion for Summary Judgment (Doc. 61) is
GRANTED-IN-PART and DENIED-IN-PART. The motion is granted
as to the theory that TJM Properties, Inc., has a joint employer relationship
with Princess Martha. The evidence before the Court does not establish that
TJM Properties, Inc., is a joint employer with Princess Martha. The motion
is otherwise denied.
4. Plaintiff EEOC’s Motion for Partial Summary Judgment (Doc. 65) is
GRANTED. The EEOC is entitled to judgment in its favor with respect to
the Princess Martha’s Sixth and Ninth Affirmative Defenses. See Doc. 29 at
15-16. These affirmative defenses are hereby stricken.
5. Princess Martha’s motion to strike (Doc. 100) is DENIED.
6. To avoid piecemeal judgments, a final judgment in favor of Defendants as
to Count I will be entered at the conclusion of this litigation.
7. Within fourteen (14) days, the parties shall file a joint notice on CM/ECF
which identifies their availability for trial in 2025.

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DONE and ORDERED in Tampa, Florida on September 26, 2024.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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