GILLMAN v. OKALOOSA COUNTY FLORIDA
ORDER granting 33 Motion for Summary Judgment, denying as moot 40 Motion for Leave to File a Reply and denying as moot 42 Motion to Strike, and granting in part and denying in part 41 Motion to Strike. Signed by CHIEF JUDGE M CASEY RODGERS on September 30, 2014. (aow)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
CASE NO. 3:13cv61-MCR/EMT
OKALOOSA COUNTY FLORIDA,
After sustaining an on-the-job-injury and being terminated from her employment,
Plaintiff Monica Gillman brought suit against her former employer, Okaloosa County,
Florida (“County”), alleging interference with her rights under the Family and Medical Leave
Act (“FMLA”), see 29 U.S.C. § 2601, et seq., as well as retaliation for exercising her FMLA
and state law workers’ compensation rights, see Fla. Stat. § 440.205. Pending before the
Court is the County’s Motion for Summary Judgment (Doc. 33). Having fully considered
the arguments of the parties and the record, the Court finds that the motion is due to be
The facts as set forth below are largely undisputed.1 Plaintiff Monica Gillman was
employed as a correctional officer in Okaloosa County’s jail facility from May 2004 until she
was terminated in February 2012. As a correctional officer, her duties included supervising
inmates, inspecting cells, conducting inmate searches, and transporting inmates. These
duties often required Gillman to lift heavy objects (in excess of 100 pounds), to use her
hands and thumbs, and involved close interaction with inmates, all of which required
On April 2, 2011, Gillman sustained an on-the-job injury when her right hand became
lodged in a hydraulic door. Gillman was transported to the hospital, where she was treated
W hile the facts set forth in this order are largely undisputed, the inferences that m ay be drawn from those
facts are disputed and m ust be drawn in favor of the Plaintiff for purposes of this m otion.
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for a crush injury to her right thumb. As a result of her injury, Gillman was unable to
perform many of the basic functions of her job, including tasks that required hand and
finger manipulation. The day after her injury, Gillman was medically cleared to work only
“light duty” with limited use of her right hand. Gillman’s workers’ compensation medical
treatment report dated April 6, 2011, stated she was restricted to “no lifting, pushing or
pulling with right hand until cleared by orthopedics.” (Doc. 36-6, at 3). Gillman was placed
on workers’ compensation and concurrent FMLA leave. Gillman remained on leave until
May 4, 2011, when she returned to work full time.2 Gillman worked full time until she was
scheduled for surgery on August 23, 2011. She then took concurrent FMLA leave and
workers’ compensation benefits. Six weeks after surgery, she was medically released to
work “light duty.” The record shows that after this, that Gillman requested to return to light
duty on more than one occasion and each time was told there was no light duty position
available, based on the determination of the County’s Jail Chief, Paul Lawson, so she
remained on FMLA leave. On February 14, 2012, the County was notified that Gillman was
scheduled for another surgery and was being placed on a “no work” status. Gillman
underwent a second surgery in February 2012, and did not provide any expected timeframe
for when she would be medically cleared to return to full-time work.
The term "light duty" is used by Gillman to refer to "an employee [who] is working
at less than full capacity." (Doc. 39, at 1.) The County presented evidence through several
employees that it does not have, and never has had, a "light duty" policy for its employees,
nor does it have a “light duty” correctional officer position. Instead, light duty may be
permitted on a case-by-case basis when possible operationally, based on whether it is
available given the demands and requirements of individual departments and whether the
officer is capable of performing the duties in light of the medical restrictions. The record
indicates that "there is a practice of providing light duty when and where possible
operationally" (doc. 34-5, at 3), but not a policy requiring it. Lawson said a correctional
officer might be assigned office work as light duty where a position was vacant. Thus, the
County has from time to time employed correctional officers in capacities that are less
There is no indication in the record that she attem pted to return to work prior to that tim e or requested light
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physically demanding than the standard correctional officer position, but not all employees
who request light duty work are granted the request, and no official policy requires it. Also,
under the County’s Leave Policy, “[a]t the end of six (6) months continued lost time for an
on-the-job injury, annual and sick leave accrual will cease,” at which time “[t]he affected
department may refill the position.”
By February 20, 2012, Gillman had used approximately 180 days of continuous
FMLA leave, and citing its Leave Policy, the County terminated Gillman’s employment at
its earliest opportunity under the Policy.3 According to the County, it chose to terminate
and replace Gillman because she “could not perform [her] full job duties,” and because the
County had been given no indication regarding if, or when, Gillman would be able to return
to work. Jail Chief Lawson informed Gillman that she could re-apply to Okaloosa County
once she obtained a full recovery, and he encouraged her to do so. At the time of her
termination, Gillman did not inquire about any accommodations, did not request a light duty
assignment, and did not file a complaint of any kind. Moreover, she did not inquire about
the possibility of taking a leave of absence, which, if available, would have allowed her to
remain employed beyond her termination date.4
In September 2012, approximately seven months after her termination, Gillman reapplied for her original position as Correctional Officer I with Okaloosa County. In October
2012, Gillman received a doctor’s note clearing her for full duty work and provided the note
to the County. This was the first time she had been cleared to work full time since August
2011. On November 16, 2012, the County extended Gillman an offer of employment for a
correctional officer position (“Correctional Officer I”). This was the same correctional officer
position Gillman had held prior to her injury, but it was at the entry level, which was at a
lower rate of pay than what Gillman had earned on the date she was terminated. Although
Gillm an was notified of her term ination by a telephone call from Lawson, and she also received a term ination
letter dated February 23, 2012.
In her affidavit, G illm an claim s she was never offered a leave of absence. For purposes of sum m ary
judgm ent, the Court assum es this fact as true. The Court notes, however, that Lieutenant Robert Boutwell,
Gillm an’s direct supervisor, testified that he spoke with Gillm an about taking a leave of absence and said she
could have requested one. As to whether Gillm an would have been granted a leave of absence had she
requested one, the only evidence before the Court is that the County had previously granted a leave of
absence to another injured em ployee, which suggests that this m ay have been an option for Gillm an had she
m ade such a request. See Doc. 34-7, at 4.
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the record is unclear as to whether Gillman initially accepted the County’s offer, the
evidence is undisputed that she eventually turned down the opportunity and accepted an
offer with Walton County instead.
Gillman then filed suit, alleging the County interfered with her FMLA rights and
retaliated against her, in violation of FMLA and workers’ compensation rights by not
permitting her to work a light duty position intermittently, so she would not have exhausted
her FMLA leave. The County moves for summary judgment.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “The moving party bears the initial burden of informing the court of
the basis for its motion and of identifying those materials that demonstrate the absence of
a genuine issue of material fact.” Rice-Lamar v. City of Ft. Lauderdale, 232 F.3d 836, 840
(11th Cir. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). A fact is
“material” if it might affect the outcome of the case under the governing substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if the
record taken as a whole could lead a rational trier of fact to find for the nonmoving party.
All the evidence and factual inferences reasonably drawn from the evidence must
be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157 (1970). Once a party demonstrates the absence of a genuine issue of
material fact, the nonmoving party must go beyond the pleadings through the use of
affidavits, depositions, answers to interrogatories and admissions on file, and designate
specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 323-24.
Plaintiff’s evidence must be significantly probative to support the claims. Anderson, 477
U.S. at 249. A mere scintilla of evidence in support of the nonmoving party’s position will
not suffice to demonstrate a genuine issue of material fact. Walker v. Darby, 911 F.2d
1573, 1577 (11th Cir. 1990). Moreover, “the nonmoving party cannot create a genuine
issue of material fact through speculation, conjecture, or evidence that is ‘merely colorable’
or ‘not significantly probative.’” Vega v. Invsco Group, Ltd., 432 F. App’x 867, 869-70 (11th
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Cir. 2011) (quoting Anderson, 477 U.S. at 249-50).
“The FMLA grants an eligible employee the right to take up to 12 workweeks of
unpaid leave annually for any one or more of several reasons, including because of a
serious health condition that makes the employee unable to perform the functions of the
position of such employee.” Hurley v. Kent of Naples, Inc., 746 F.3d 1161, 1166 (11th Cir.
2014) (internal marks omitted). If an employer interferes with, restrains, or denies the
exercise, or attempted exercise, of FMLA rights, the employee may bring a private civil
action for damages or equitable relief. See Hurlbert v. St. Mary’s Health Care Sys., Inc.,
439 F.3d 1286, 1293 (11th Cir. 2006) (citing 29 U.S.C. §§ 2615(a)(1) & 2617(a)). The
Eleventh Circuit has explained that § 2615(a) includes two types of FMLA claims: (1)
“interference claims, in which an employee asserts that his employer denied or otherwise
interfered with his substantive rights under the Act,” and (2) “retaliation claims, in which an
employee asserts that his employer discriminated against him because he engaged in
activity protected by the Act.” Id. (internal marks omitted). An interference claim requires
“proof by a preponderance of the evidence that [the employee] was entitled to the benefit
denied.” Id. (internal marks omitted); see also Jarvela v. Crete Carrier Corp., 754 F.3d
1283, 1289 (11th Cir. 2014). “[T]he employer's motives are irrelevant” to an interference
claim. Martin v. Brevard Cnty. Pub. Schs., 543 F.3d 1261, 1267 (11th Cir. 2008) (internal
The County argues it is entitled to summary judgment on the FMLA interference
claim because Gillman cannot demonstrate that she was denied a benefit to which she was
entitled under the FMLA. The Court agrees. There is no dispute that Gillman was an
eligible employee and no dispute that she in fact exercised all of her substantive FMLA
leave rights without interference prior to her termination. There is also no dispute that
Gillman was not medically cleared to return to full-time work in her original position until
several months after she had exhausted her FMLA leave and been terminated. Gillman
alleges interference with her FMLA rights based on the fact that the County did not place
her in a light duty position when she requested it. According to Gillman, she had been able
to perform light duty work at that time but because the County refused this placement, she
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was forced to use up her valuable FMLA leave which, in turn, resulted in her being
terminated before her full recovery. Gillman maintains she would not have become subject
to the County’s six-month continuous leave policy and termination if she had been
permitted to work a light duty job and use intermittent leave when necessary.
There is no evidence that the County had full-time light duty work available at the
time Gillman requested light duty, and more importantly, an employer does not have an
obligation under FMLA to place an employee in a different position.
See Diaz v.
Transatlantic Bank, 367 F. App'x 93, 96 (11th Cir. 2010); see also 29 C.F.R. § 825.216(c)
(“If the employee is unable to perform an essential function of the position because of a
physical or mental condition, including the continuation of a serious health condition or an
injury or illness also covered by workers’ compensation, the employee has no right to
restoration to another position under the FMLA.”). Gillman relies on Verhoff v. Time
Warner Cable Inc., in which the court determined the employer had interfered with FMLA
rights by not offering intermittent leave. See Verhoff v. Time Warner Cable Inc 478 F.
Supp. 2d 933, 941 (N.D. Ohio 2006) (citing 29 U.S.C. § 2612(b)(1)) (finding “[a]n eligible
employee is entitled to block leave, but [s]he is also entitled to intermittent leave or a
reduced leave schedule if medically necessary”). The facts of Verhoff, however, are
distinguishable from this case. There, the plaintiff was medically capable of performing all
of his regular job duties, he was merely restricted to a forty hour work week with no
overtime, and thus, under the FMLA, he was entitled to the benefit of intermittent leave or
a reduced work schedule. Here, by contrast, Gillman was not entitled to the benefit of
intermittent leave because she could not perform her job. See Hatchett v. Philander Smith
Coll., 251 F.3d 670, 677 (8th Cir. 2001) (stating individuals who are unable to perform their
jobs are not entitled to intermittent leave). Under the FMLA, an employee only has the right
to be restored to the same or an equivalent position, and the employer has no duty to
create another position for her. See Jarvela, 754 F.3d at 1289; see also Silva v. City of
Hidalgo, Tx, No. 13-41064, 2014 WL 3511685, at *3 (5th Cir. Jul. 17, 2014) (stating if an
employee could not perform the essential functions of her job, she had no right to return
to work and be given a transfer to a light duty position); James v. Hyatt Regency Chicago,
2011 WL 6156825, at * 6 n.12 (N.D. Ill. 2011) ("[T]he FMLA does not require an employer
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to restore an employee to a position different from the one that he held before taking FMLA
leave."). Thus, Gillman had the benefit of FMLA leave because she could not return to her
position,5 and there was no interference with her FMLA rights. The County therefore is
entitled to summary judgment on Gillman’s interference claim.
The County also seeks summary judgment on Gillman’s FMLA retaliation claim.
Gillman alleged she suffered FMLA retaliation when the County refused to give her light
duty work and argues it terminated her employment after she exercised her FMLA rights.
Because the record contains no direct evidence of a retaliatory intent, the Court evaluates
Gillman’s FMLA retaliation claim applying “the same burden-shifting framework established
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . for
evaluating Title VII discrimination claims.” Strickland v. Water Works and Sewer Bd. of City
of Birmingham, 239 F.3d 1199, 1207 (11th Cir. 2001) (citing Brungart v. BellSouth
Telecomm. Inc., 231 F.3d 791, 798 (11th Cir. 2000)). Under that test, to state a prima facie
case of intentional FMLA retaliation, the employee must show that: “(1) [s]he engaged in
a statutorily protected activity; (2) [s]he suffered an adverse employment decision; and (3)
the decision was causally related to the protected activity.” Strickland, 239 F.3d at 1207
(citing Parris v. Miami Herald Publ’g Co., 216 F.3d 1298, 1301 (11th Cir. 2000)). If the
plaintiff establishes a prima facie case, the burden of production shifts to the employer to
articulate a legitimate, nondiscriminatory reason for the challenged action. EEOC v. Joe’s
Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002). Where the employer’s burden is
met, the plaintiff must then “introduce significantly probative evidence showing that the
asserted reason is merely a pretext for discrimination” in order to avoid summary judgment.
Brooks v. Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160, 1163 (11th Cir. 2006)
(quotation omitted). A plaintiff may show pretext “either directly by persuading the court
that a discriminatory reason more likely motivated the employer or indirectly by showing
that the employer’s proffered explanation is unworthy of credence.” Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 256 (1981) (citing McDonnell Douglas, 411 U.S. at 804805).
Also, at the tim e of her term ination, Gillm an had been scheduled for another surgery and placed on no-duty
status, so she was not able to return to her job at that tim e either.
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There is no dispute that Gillman engaged in the statutorily protected activity of taking
FMLA leave, and the Court will assume for purposes of summary judgment that she
suffered an adverse employment action by the County’s failure to give her light duty or its
decision to terminate her. Also, the causal connection is sufficiently demonstrated by the
temporal proximity between Gillman’s use of FMLA leave and both the denial of her request
for light duty work and her termination. See Schaf v. Smithkline Beecham Corp., 602 F.3d
1236, 1243 (11th Cir. 2010) (stating causation can be reasonably inferred from close
temporal proximity between the protected action and the adverse employment action).
Therefore, the Court will assume Gillman is able to show a prima facie case of FMLA
The burden then shifted to the County to demonstrate a legitimate
nonretaliatory explanation for the adverse action. As to Gillman’s termination, the County
asserts Gillman was properly terminated pursuant to its ordinary policy after she had used
all FMLA leave to which she was entitled and still was physically unable to return to work.
The County did not deviate from that undisputed policy here, which undercuts any
suggestion that the termination was based on retaliatory animus toward Gillman. See
Silva, 2014 WL 3511685, at *4. Gillman has shown no pretext in the reason for her
Gillman’s claim of FMLA retaliation based on the refusal to place her on light duty
status also fails. The County offered the legitimate explanation that it has no policy
allowing light duty, no designated light duty job for a correctional officer, and no light duty
job was available when Gillman requested it. While some duties a correctional officer
performs are considered light, the decision to allow this type of work is fact specific,
depending on needs of the department at the time, availability of the work, and the medical
restrictions involved. The decision is left to individual supervisors. The undisputed record
shows that whenever Gillman requested light duty, there was no available position that
could be considered light duty, and Gillman presented no evidence to the contrary.
Moreover, she was not entitled to it under any County policy or the FMLA; it is undisputed
she was is physically unable to return to her position. See Silva, 2014 WL 2511685, at *4.
Gillman attempts to show pretext by referencing three comparators who were given
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light duty and had not used FMLA leave – a pregnant employee,6 an obese employee, and
an employee who had been injured in a motorcycle accident. A plaintiff may show pretext
by demonstrating that other similarly situated employees outside the protected class were
treated more favorably. See generally Silvera v. Orange County Sch. Bd., 244 F.3d 1253,
1259 (11th Cir. 2001) (concluding in a Title VII case that plaintiff's comparator evidence did
not support a showing of pretext because the comparator was not “similarly situated”);
Ebersole v. Novo Nordisk, Inc., 758 F.3d 917, 925-26 (8th Cir. 2014) (discussing use of
comparators to show pretext in FMLA retaliation context). Any comparators must be
“similarly situated in all relevant aspects.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th
Cir.1997). However, different treatment by a different supervisor or decision maker is
seldom the basis for a viable retaliation claim. See Silvera, 244 F.3d at 1261 n.5. Here,
while the alleged comparators were correctional officers similar to Gillman, the fact that
they were permitted to work light duty positions under various circumstances in the past
does not render the County’s statement that no light duty positions were available at the
time of Gillman’s requests unworthy of credence. Even considering that one of the
comparators was on light duty when Gillman requested it does not suggest that another
position was also available. Moreover, Gillman’s mere subjective belief that she was
retaliated against is not by itself sufficient to survive summary judgment. See Standard v.
A.B.E.L. Servs., Inc., 161 F.3d 1318, 1332-33 (11th Cir. 1998) (indicating that an
employee’s own evaluation and opinion is insufficient to establish pretext).
For similar reasons, Gillman’s claim of workers compensation retaliation under
Florida law also fails. See Fla. Stat. § 440.205 (“No employer shall discharge, threaten to
discharge, intimidate, or coerce any employee by reason of such employee’s valid claim
for compensation or attempt to claim compensation under the Workers’ Compensation
The pregnant em ployee referenced in this lawsuit is Kim berly Boddy. In her deposition, Ms. Boddy testified
that she was not assigned to what is described as “light duty” work. Rather, she was given work that was
designed “to protect [her]self and [her] child,” including assignm ents in towers or central control. Doc. 34-3,
at 2. According to Boddy, her work assignm ent was not “light duty” because she “could have done everything
[she] should have done” as a correctional officer if called upon to do so, including fighting inm ates. Doc. 34-3,
at 2. Moreover, while Gillm an testified that she knew of an additional pregnant officer who was assigned to
a tower position, she failed to provide any inform ation regarding that officer. See Doc. 36-59, Dep. of Monica
Gillm an, at 19.
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Law.”). Using the same framework of analysis as set forth above,7 the Court finds that
Gillman cannot demonstrate causation for a prima facie case with regard to her termination
because her workers’ compensation claim, made over ten months before her termination,
cannot be said to have been in close temporal proximity with her termination. See Pericich
v. Climatrol, Inc., 523 So. 2d 684, 686 (Fla. 3d DCA 1988) (affirming summary judgment
in favor of employer on a Florida workers’ compensation retaliation claim where the plaintiff
was employed for over a year after his injury and still could not return to work on a full duty
basis fourteen months after the injury). As to the light duty retaliation claim, even assuming
Gillman can establish a prima facie case, as with her FMLA retaliation claim, she has not
presented sufficient evidence of pretext for the same reasons set forth above. Therefore,
the County is entitled to summary judgment.
Accordingly, it is ORDERED:
Defendant Okaloosa County’s Motion for Summary Judgment (Doc. 33) is
GRANTED. The Clerk is directed to enter final summary judgment in favor
of Defendant and against Plaintiff.
Defendant’s Motion for Leave to File A Reply (Doc. 40) is DENIED as moot.
Defendant’s Motion To Strike Plaintiff’s Summary Judgment Affidavits (Doc.
42) is DENIED as moot, because even considering the affidavits does not
change the Court’s decision.
Defendant’s Motion to Demand Return and to Strike Privileged and
Inadvertently Produced Documents (doc. 41) is DENIED in part as to the
motion to strike, because even considering the documents, the Court’s
decision does not change, and GRANTED in part as to the request to return
documents. Plaintiff shall return the documents at issue within five (5) days
of the date of this Order.
W hen analyzing a claim of workers’ com pensation retaliation under Florida law, the Court applies the sam e
fram ework of analysis as is applicable under the FMLA or Title VII. See Coker v. Morris, 2008 W L 2856699,
No. 3:07cv151, at 6 (N.D. Fla. July 22, 2008) (unreported) ("[A plaintiff's] workers' com pensation retaliation
claim is analyzed under the sam e fram ework as a federal retaliation claim under Title VII."); see also
Humphrey v. Sears, Roebuck & Co., 192 F.Supp. 2d 1371, 1374 (S.D. Fla. 2002).
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The Clerk is directed to tax costs against the Plaintiff, and close the file.
DONE and ORDERED this 30th day of September, 2014.
M. Casey Rodgers
M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE
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