Equal Employment Opportunity Commission v. Florida Commercial Security Services, Corp.

Filing 46

ORDER granting in part and denying in part 22 Motion for Summary Judgment. Signed by Magistrate Judge John J. O'Sullivan on 9/24/2014. (mkr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 13-20465-CIV-O’SULLIVAN
[CONSENT]
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
v.
FLORIDA COMMERCIAL SECURITY
SERVICES, CORP.,
Defendant.
________________________________/
ORDER
THIS MATTER is before the Court on the EEOC’s Motion for Summary
Judgment (DE# 22, 1/15/14). On January 31, 2014, parties filed their Joint Consent to
Jurisdiction by a United States Magistrate Judge for Final Disposition (DE# 25,
1/31/14). This matter was referred to the undersigned by the Honorable William M.
Hoeveler, United States District Judge for the Southern District of Florida, pursuant to
28 U.S.C. § 636(b), for the final disposition of the case. See Order of Reference (DE#
27, 2/6/14).
BACKGROUND
On February 7, 2013, the Equal Employment Opportunity Commission (“EEOC”)
filed the instant action against Florida Commercial Security Services, Corp. d/b/a
Florida Construction Security Services (hereinafter “FCSS” or “defendant”) under the
Americans with Disabilities Act of 1990, 42 U.S.C. §12101, et seq. (“ADA”), as
amended by the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”),

Pub. L. No. 110-325, 122 Stat 3553 (2008) and Title I of the Civil Rights Act of 1991, 42
U.S.C. §1981a. See Plaintiff EEOC’s Complaint and Demand for Jury Trial (DE# 1,
2/7/13) (hereinafter “Complaint”). The Complaint alleges that the defendant
discriminated against the charging party, Alberto Tarud-saieh, because of his missing
limb and retaliated against him for filing an EEOC Charge of Discrimination. Id. at ¶¶
26-28.1
On January 15, 2014, the EEOC filed the instant motion for summary judgment
and a statement of undisputed material facts. See EEOC’s Motion for Summary
Judgment (DE# 22, 1/15/14); EEOC’s Statement of Undisputed Material Facts (DE# 23,
1/15/14). On February 18, 2014, the defendant filed its response in opposition and a
statement of disputed facts. See Defendant’s Statement of Facts for Which There
Exists a Genuine Issue to Be Tried (DE# 31, 2/18/14);2 Defendant’s Response and
Memorandum of Law in Opposition to Plaintiff’s Motion for Summary Judgment (DE#
32, 2/18/14). On February 19, 2014, the defendant filed certain exhibits in support of its
response and in opposition to the summary judgment motion. See Defendant’s Notice
of Filing Exhibits in Support of Defendant’s Response to Plaintiff’s Motion for Summary

1

Some of the parties’ filings contain page numbers which do not correspond to
the page numbers automatically assigned by the Court’s CM/ECF system. When citing
the Complaint (DE# 1, 2/7/13), the Court will cite to the paragraph number instead of
the page number, when available. With respect to all other documents, the Court will
cite to the page numbers automatically assigned by CM/ECF.
2

Portions of paragraphs 2, 5, 6, and 11 of the Defendant’s Statement of Facts
for Which There Exists a Genuine Issue to Be Tried (DE# 31, 2/18/14), paragraph 9 of
the Affidavit of German Bosque (DE# 33-2, 2/19/14) and paragraph 6 of the Affidavit of
Karen S. Smith-Aloisio (DE# 33-3, 2/19/14) have been stricken by this Court in a
separate Order.
2

Judgment (DE# 33, 2/19/14). The EEOC filed a reply on April 28, 2014. See EEOC’s
Reply in Support of Motion for Summary Judgment (DE# 39, 4/28/14); EEOC’s Reply
Statement of Facts (DE# 40, 4/28/14). This matter is ripe for consideration.
FACTS3
1.

The Charging Party
The charging party, Alberto Tarud-saieh, has suffered a limb loss (right arm)

which qualifies as a physical disability. Mr. Tarud-saieh’s disability substantially limits
one or more major life activities, including but not limited to the operation of his
musculoskeletal function. Mr. Tarud-saieh has a prosthetic arm which has some
functioning capabilities – for example, he can grip a cup with his prosthetic arm. Mr.
Tarud-saieh’s prosthetic arm is, however, primarily cosmetic, and he does not wear it
on a daily basis. Mr. Tarud-saieh is unaware of any alternative prosthetic arm that
would help him perform more tasks.
Mr. Tarud-saieh lives by himself and can perform a large variety of tasks without
his prosthetic arm. For instance, Mr. Tarud-saieh can: (i) walk and run; (ii) use a
telephone; (iii) write in a notebook; (iv) open and close doors; (v) open and close fences
and gates; (vi) open and close a padlock; (vii) follow another person; (viii) approach a
3

The facts recited in this section are taken from the paragraphs in the EEOC’s
Statement of Undisputed Material Facts (DE# 23, 1/15/14) which FCSS does not
dispute, or the paragraphs for which FCSS generally denies, but fails to provide record
evidence in opposition. See Hawthorne v. Baptist Hosp., Inc., No. 3:08cv154/MCR/MD,
2010 WL 716539, at *3 n.6 (N.D. Fla. Feb. 25, 2010) (stating that “a party may not rest
on a general denial to oppose a properly supported motion for summary judgment.”).
The Court has also included the relevant facts contained in the Defendant’s Statement
of Facts for Which There Exists a Genuine Issue to Be Tried (DE# 31, 2/18/14) which
the EEOC does not dispute where they are supported by record evidence and have not
been stricken by the Court’s prior Order.
3

suspect; (ix) use pepper spray and (x) load a firearm. Mr. Tarud-saieh is capable of
approaching individuals and asking questions, asking them to stop what they are doing
and/or asking them to wait until police arrive. Depending on the type and height, Mr.
Tarud-saieh can also climb a fence.
Mr. Tarud-saieh has had a valid Florida driver’s license since approximately May
2006. He has not been involved in any automobile accidents where he was found to be
at fault. Mr. Tarud-saieh cannot use his prosthetic arm to drive. However, Mr.
Tarud-saieh is not required to wear his prosthetic arm while driving. Mr. Tarud-saieh
drives on a daily basis without his prosthetic arm and can stop, turn, back up, drive in
reverse and drive at the speed limit, including high speeds. He can also make and
receive telephone calls while driving his vehicle by placing the telephone on his
shoulder.
In approximately January 2010, Mr. Tarud-saieh was licensed as an Unarmed
Security Officer and Armed Security Officer by the Florida Department of Agriculture
and Consumer Services.
2.

The Defendant
German Bosque is the owner and CEO/President of defendant FCSS. He

graduated from the police academy in 1992. In 2010, prior to hiring any applicant
(including Mr. Tarud-saieh), FCSS did not perform any pre-hiring drug tests, medical
screenings, physical fitness tests, physical agility tests or weight lifting tests. FCSS did
not have a minimum or maximum age requirement, height requirement, or weight
requirement for its applicants. FCSS did not ask applicants about their medical health
or prior injuries. FCSS did not ask applicants any questions about their ability to run or
4

climb fences. FCSS also did not ask applicants about their driving record, or check their
driver’s license history.
For example, FCSS hired Maxene Etienne, a female, unarmed security guard,
who was allegedly required to detain shoplifters. FCSS did not, however, conduct any
physical fitness test or strength test to determine whether Ms. Etienne could detain a
suspect. Mr. Bosque admitted that he did not know whether Ms. Etienne would be able
to physically detain a shoplifter. Rather, FCSS simply assumed that she could do it, but
FCSS does not know for certain one way or the other. FCSS acknowledged that Ms.
Etienne’s ability to detain a shoplifter might depend upon the size of the shoplifter, the
strength of the shoplifter and the age of the shoplifter.
FCSS has a security guard who is “great and customers ask for her” that is “a
little frail and a little old.” FCSS has also employed a pregnant security guard. FCSS
also employs a deaf person as a “gopher.”
3.

Mr. Tarud-saieh’s Hiring
In approximately July 2010, Mr. Tarud-saieh learned about a job opening for an

unarmed security guard position and applied for the position with FCSS.
Liddy Reynolds interviewed Mr. Tarud-saieh for the position. Ms. Reynolds is the
Chief Administrative Officer of FCSS. Her job duties include interviewing and hiring
applicants. She is also a direct supervisor to the security guards. During Mr.
Tarud-saieh’s interview, Ms. Reynolds saw his prosthetic arm. Ms. Reynolds told Mr.
Bosque that Mr. Tarud-saieh had a prosthetic arm and Mr. Bosque responded that
there was no reason not to hire him. According to Ms. Reynolds, she believed Mr.
Tarud-saieh’s prosthetic arm was “functional,” but she did not ask him what he could or
5

could not do with the prosthetic arm. Ms. Reynolds assumed that the prosthetic arm
was not for show.
Mr. Bosque did not ask Mr. Tarud-saieh what functions he could do with his
prosthetic arm, but believed that Mr. Tarud-saieh had a “prosthetic arm that worked.”
Mr. Bosque, however, does not know anyone with a prosthetic arm and he has never
spoken to anyone with a prosthetic arm about his or her prosthetic arm functions.
FCSS did not condition Mr. Tarud-saieh’s job offer on answering medical
questions, on passing a medical exam, or on passing a physical agility test. FCSS
never asked Mr. Tarud-saieh, either before hiring him or before removing him from his
position, any of the following questions: (i) whether or how he could drive; (ii) whether or
how he could make telephone calls; (iii) whether or how he could take notes or write a
report; (iv) whether or how he could detain a suspect; (v) whether or how he could
physically intervene in a violent dispute; (vi) whether or how he could jump a fence; or
(vii) whether or how he could handle an emergency situation.
4.

The Job Duties of an Unarmed Security Guard
According to Mr. Bosque, the normal protocol for a security guard, when he or

she witnesses suspicious activity, is to call the police. A security guard’s duties are to
call police and be the eyes and ears of law enforcement. FCSS’ job description states
that, “[d]epending on customers individual needs/requirements, security officers may be
required to . . . apprehend/detain violent felon(s) until police arrive.” Defendant’s Exhibit
G (DE# 33-9, 2/19/14).
Once Mr. Tarud-saieh was hired, FCSS instructed him that he was responsible
for patrolling a residential community in a security vehicle. He was further instructed to
6

remain awake and alert, make notes/write reports of any activities and that in the event
he witnessed any suspicious happenings, he should call the police and provide a
description of the incident. FCSS instructed Mr. Tarud-saieh that he could approach an
individual in the residential community to ask what he or she was doing on the
premises. FCSS never instructed Mr. Tarud-saieh that he should chase suspects or
climb fences. However, Mr. Tarud-saieh understood when he was hired that there may
be occasions when he had to follow somebody who was acting suspicious. During his
deposition, Mr. Tarud-saieh testified that it was his understanding that physically
detaining someone was a requirement of the job. Deposition of Mr. Tarud-saieh (DE#
33-1 at 51-52, 2/19/14).
Mr. Tarud-saieh did not have a Bluetooth telephone headset while he worked for
the defendant. Mr. Tarud-saieh was willing to purchase a hands-free, voice-activated
cellular telephone, if FCSS had raised concerns about his ability to make and receive
telephone calls while driving. FCSS could have accommodated a request by Mr.
Tarud-saieh to use a voice activated phone.
FCSS instructed other security guards that they were to observe and report. For
example, FCSS informed unarmed security guard Hilarie Pierre that he was required to
keep watch over the property and if he observed an unknown person on the property,
he could approach him or her and ask what he or she was doing. FCSS instructed Mr.
Pierre, however, not to chase anyone or engage in any kind of confrontation. In the
event Mr. Pierre witnessed something suspicious, his instructions were to call the
police.

7

5.

Mr. Tarud-saieh’s First Day on the Job and Subsequent Removal from His
Position
Mr. Tarud-saieh reported for his first day of work on August 2, 2010. Mr.

Tarud-saieh did not wear his prosthetic arm to work. He was stationed at Westwind
Properties, a residential community. During Mr. Tarud-saieh's first shift, he met the
President of Westwind Properties. There was only one fence at Westwind Properties.
The fence was a chain link fence that was positioned around a pool. The fence had a
gate and Mr. Tarud-saieh was easily able to open and close the gate.
Mr. Tarud-saieh successfully completed his first shift at Westwind Properties
without incident. He did not have a single problem performing his job.
On approximately August 3, 2010, Mr. Tarud-saieh spoke with Mr. Bosque on
the telephone. During this call, Mr. Bosque told Mr. Tarud-saieh that the President of
Westwind Properties did not like him because he does not have two arms. Mr. Bosque
removed Mr. Tarud-saieh from the position and told him that he could not return to the
position at Westwind Properties.
Mr. Bosque did not ask Mr. Tarud-saieh whether, or how, he could perform the
duties of an unarmed security guard. He did not request Mr. Tarud-saieh to perform a
physical agility test or ask Mr. Tarud-saieh to demonstrate his driving skills to him or
anyone else. Mr. Bosque did not ask Mr. Tarud-saieh to demonstrate his ability to use a
cellular phone while driving or to demonstrate his ability to write a report.
6.

FCSS’ Reason For Terminating Mr. Tarud-saieh
According to FCSS, Mr. Bosque initially believed that Mr. Tarud-saieh’s

prosthetic arm was a “moving arm/working arm.” Following Mr. Tarud-saieh’s first day of
8

work, the President of Westwind Properties called Mr. Bosque. The President of
Westwind Properties informed Mr. Bosque that Mr. Tarud-saieh did not wear the
prosthetic arm on his first day of work and complained that FCSS “was a joke for
sending them a one (1) arm Security Officer.”
Mr. Bosque was angry when he learned that Mr. Tarud-saieh did not wear his
prosthetic arm to work. Mr. Bosque said to Mr. Tarud-saieh, "What are you, tonto?"
(which translates to a “fool”). According to Mr. Bosque, Mr. Tarud-saieh then advised
Mr. Bosque that his arm was primarily for cosmetic purposes. According to Mr. Bosque,
upon learning that the prosthetic arm was “dead weight,” he told Mr. Tarud-saieh: “Well,
you can’t go back to the post. You can’t do the things that they need you to do at that
post.” According to Mr. Bosque, once he learned Mr. Tarud-saieh had a largely
cosmetic arm, he did not need any additional information. During his deposition, Mr.
Bosque testified that if Mr. Tarud-saieh had a “movable” prosthetic arm, Mr. Bosque
would have given him another chance at the Westwind Properties. Specifically, he
would have called up the President of the Westwind Properties and said, “He promises
never to leave his arm at home again. You know, if he does he'll get fired. Let's give him
a chance.” Deposition of German Bosque (DE# 22-3 at 9, 1/15/14).
During discovery, the EEOC asked FCSS to identify “each and every fact that
forms the basis of [y]our contention in Paragraph 1 of Defendant's Affirmative Defenses
that ‘Tarud-saieh was not a qualified individual with a disability within the meaning of
the ADA because he was not able to perform the essential functions of his job position
with or without a reasonable accommodation.’” FCSS’ Answers to Interrogatories (DE#
22-7 at 3, 1/15/14). FCSS responded that “Tarud-saieh showed poor judgment when he
9

failed to wear his prosthetic arm the first day on the job. Poor judgment cannot be
accommodated.” Id. FCSS did not state that detaining violent suspects, breaking up
physical disputes or climbing fences was an essential function of the unarmed security
guard position or that Mr. Tarud-saieh could not perform these functions.
The EEOC also asked FCSS to identify “each and every fact that forms the basis
of [y]our contention in Paragraph 6 of Defendant's Affirmative Defenses that ‘all actions
taken by FCSS with regard to Tarud-saieh were taken for legitimate, non-discriminatory
reasons unrelated to disability retaliation.” FCSS’ Answers to Interrogatories (DE# 22-7
at 2, 1/15/14). FCSS responded that Tarud-saieh was fired after he showed poor
judgment in not wearing his arm to his first day of work and that Tarud-saieh’s post
required that he patrol in a vehicle and it would have been difficult or impossible for him
to call in a security threat of any kind while driving without a prosthetic limb. Id. at 2-3.
FCSS did not state that detaining violent suspects, breaking up physical disputes or
climbing fences was an essential function of the unarmed security guard position.
Further, FCSS did not state in its discovery response that Mr. Tarud-saieh could not
detain violent suspects, break up physical disputes or climb a fence.
7.

Retaliation Claim
Mr. Bosque told Mr. Tarud-saieh that he would try to find him another position

with FCSS. FCSS never placed Mr. Tarud-saieh into another position. On
approximately September 17, 2010, Mr. Tarud-saieh filed a Charge of Discrimination
with the Equal Employment Opportunity Commission.
During her deposition, Ms. Reynolds, Chief Administrative Officer of FCSS,

10

testified as follows:
Q.
Was Mr. Bosque going to try to find Mr. Tarud Saieh another
driving post?
A.
If we get called for another driving post we would have definitely
given him a call for another position. We just recently got a position for a
driving post, just recently in his area in Kendall.
Q.

Did you consider calling him?

A.
Yes, but obviously he moved forward to the EEOC and said
that we were discriminatory against him. He would have had his
opportunity of working for us. Christopher was out of work for maybe a
year or more and we called Chris and let Chris know, hey, we have an
opening, are you still unemployed? And he said, yes, I would like to take
the opportunity. And Chris is now working for us at that post in Kendall.
We also called another of our guards and he said he was already working.
So that was it.
Q.

So why didn't you call Mr. Tarud Saieh?

A.
Because he was already filing for the EEOC. And we didn't
know that we could be in contact with him to offer him the job. And
the last time I researched, I saw him on the Internet with another job. So I
don't think he would have accepted a position with us. We didn't have any
ill means or will against him so.
Deposition of Liddy Reynolds (DE# 22-4 at 16, 1/15/14) (emphasis added).
During his deposition, Mr. Bosque testified as follows:
Q.

It's a walking post or a vehicle post?

A.

It's a vehicle post.

Q.

Was Mr. Tarud Saieh considered for that post?

A.

No, he was not.

Q.

Why not?

A.
Because I just got that post recently and for the fact that we
were in the lawsuit. I don't know if I'm allowed to contact him or not.
11

So once this EEOC thing started – because that's a post I would have
considered him for.
Q.
Is there something unique about that post that you believe he
would have been able to do the work?
A.
Well, if I'm ordered by the EEOC to put him to work, then that's the
one that I would consider him for because it's a driving post. There is no
backing up, there are no dead end streets, it's just going in circles around
the building.
But, again, I still feel that I would still think that he cannot perform
what other guards could do if something were to happen.
Deposition of German Bosque (DE# 22-3 at 13, 1/15/14).
8.

Conciliation
On August 9, 2012, the EEOC issued a Letter of Determination4 to FCSS. See

Letter of Determination (DE# 33-4, 2/19/14). According to the Letter of Determination, a
proposed conciliation agreement was attached to this document. Id. at 2. However, no
such agreement was attached. The cause determination explained that the EEOC’s
investigation indicated the following: “[FCSS] subjected [Mr. Tarud-saieh] to disability
discrimination when it removed [Mr. Tarud-saieh] from his position for failure to wear his
prosthetic arm on the job, failed to give [Mr. Tarud-saieh] additional assignments, and
eventually terminated his employment in retaliation for filing an EEOC charge of
discrimination.” Id. In that letter, the EEOC further informed FCSS that the EEOC
sought to eliminate the alleged unlawful practices by informal methods of conciliation.
Id. The EEOC invited FCSS to join with it in reaching a just resolution of the matter. Id.

4

FCSS refers to this letter as a “cause determination.” Defendant’s Statement of
Facts for Which There Exists a Genuine Issue to Be Tried (DE# 31 at ¶16, 2/18/14). It
is the same document the EEOC refers to as a “Letter of Determination.”
12

The EEOC asked FCSS to submit a response to the Letter of Determination within
fifteen (15) days of receipt of that correspondence. Id. FCSS received the Letter of
Determination.
On September 19, 2012, the EEOC wrote to FCSS and informed it that the
EEOC had not received a response to the proposed conciliation agreement. See EEOC
Letter of September 19, 2012 (DE# 33-5, 2/19/14). The letter also stated that the EEOC
needed a response by the due date of September 24, 2012. Id. The EEOC did not wait
until September 24, 2012 to fail conciliation. Instead, the EEOC issued a notice to
FCSS on September 20, 2012 (the next day) stating that the conciliation process had
been unsuccessful. See EEOC Letter of September 20, 2012 (DE# 33-6, 2/19/14).
On that same day, Mr. Bosque sent a letter on behalf of FCSS to the EEOC
stating that the company was “willing to engage in settlement discussion,” but that he
did not want to put Mr. Tarud-saieh back to work unless he was ordered to do so by the
EEOC. See FCSS Letter of September 20, 2012 (DE# 33-2 at 4-6, 2/19/14). Mr.
Bosque believed that if he had obtained some sort of order from the government, this
could help FCSS avoid liability.
In light of FCSS' statement that it was willing to engage in settlement
discussions, the EEOC sent another letter and a proposed conciliation agreement (DE#
33-2 at 8-15, 2/19/14) on October 2, 20125 stating that the conciliation process would
5

This letter is dated September 27, 2012, but appears to have been faxed by the
EEOC on October 2, 2012. FCSS states that “as may be gleaned from a later letter
dated October 18, 2012, the September 27, 2012 letter did not contain a draft
conciliation agreement.” Defendant’s Statement of Facts for Which There Exists a
Genuine Issue to Be Tried (DE# 31, 2/18/14). Both the September 27, 2012 letter and
the proposed conciliation agreement contain a fax stamp date of October 2, 2012, a
13

be re-opened to FCSS. The letter provided a response date of October 8, 2012.
Paragraph 5 of the proposed conciliation agreement contained the name of an
individual who was not employed by FCSS. This was a typographical error.
The EEOC followed up with FCSS on October 18, 2012 and noted that the
EEOC had not received a counteroffer from FCSS. See EEOC Letter of October 18,
2012 (DE# 33-8, 2/19/14). The October 18, 2012 letter provided a response date of
October 22, 2012. After receiving no response from FCSS, the EEOC failed conciliation
on November 26, 2013. See EEOC Letter of November 26, 2013 (DE# 22-15, 1/15/14).
STANDARD OF REVIEW
The Court, in reviewing a motion for summary judgment, is guided by the
standard set forth in Federal Rule of Civil Procedure 56(a), which states, in relevant
part, as follows:
A party may move for summary judgment, identifying each claim or
defense--or the part of each claim or defense--on which summary
judgment is sought. The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a).
The moving party bears the burden of meeting this exacting standard. Celotex
Corp. v. Catrett, 477 U.S. 317, 322-323 (1986); Adickes v. S.H. Kress & Co., 398 U.S.
144, 157 (1970). That is, “[t]he moving party bears 'the initial responsibility of informing

time of 12:10 PM and are marked consecutively as pages 2/10. Moreover importantly,
FCSS does not present any evidence disputing that it received both documents. At this
juncture in the proceedings, FCSS cannot rely on what may be “gleaned” from the
documents to create a genuine issue of material fact.
14

the . . . court of the basis for its motion, and identifying those portions of the ‘pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of
material fact.’” United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th
Cir. 1991) (quoting Celotex, 477 U.S. at 323).
In assessing whether the moving party has satisfied this burden, the Court is
required to view the evidence and all factual inferences arising therefrom in the light
most favorable to the non-moving party. Batey v. Stone, 24 F.3d 1330, 1333 (11th Cir.
1994). Summary judgment is appropriate when there is no dispute as to any material
fact and only questions of law remain. Reich v. John Alden Life Ins. Co., 126 F.3d 1 (1st
Cir. 1997). If the record presents factual issues, the Court must deny the motion and
proceed to trial. Adickes, 398 U.S. at 157; Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).
Despite these presumptions in favor of the non-moving party, the Court must be
mindful of the purpose of Rule 56 which is to eliminate the needless delay and expense
to the parties and to the Court occasioned by an unnecessary trial. Celotex, 477 U.S. at
322-323. Consequently, the non-moving party cannot merely rest upon his or her bare
assertions, conclusory allegations, surmises or conjectures. Id. As the Supreme Court
noted in Celotex:
[T]he plain language of Rule 56(c) mandates the entry of summary
judgment . . . against the party who fails to make a showing sufficient to
establish the existence of an element essential to the party's case, and on
which the party will bear the burden of proof at trial. In such a situation,
there can be "no genuine issue as to any material fact," since a complete
failure of proof concerning an essential element of the non-moving party's
case necessarily renders all other facts immaterial.
15

Id. at 322-323. Thus, the mere existence of a scintilla of evidence in support of the nonmoving party’s position is insufficient. There must be evidence on which the jury could
reasonably find for the non-movant. Anderson, 477 U.S. at 251; Matsuchita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
ANALYSIS
The EEOC alleges causes of action for: (1) employment discrimination in
violation of Section 102(a), 42 U.S.C. § 12112(a) and (2) retaliation in response to filing
an EEOC Charge of Discrimination in violation of Section 503(a) of the ADA, 42 U.S.C.
§12203(a). See Complaint (DE# 1 at ¶¶ 26-28, 2/7/13). The EEOC seeks summary
judgment in its favor on the issue of liability and on the defendant’s conciliation and
third party liability affirmative defenses and asks that the case proceed to trial only on
damages. See EEOC’s Motion for Summary Judgment (DE# 22 at 6, 1/15/14). The
Court will address the EEOC’s arguments below.
1.

Employment Discrimination Claim
The ADA prohibits employers from “discriminat[ing] against a qualified individual

on the basis of [a] disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and
other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).
An ADA plaintiff may prove discrimination through direct evidence or
circumstantial evidence. See Wascura v. City of South Miami, 257 F.3d 1238, 1242
(11th Cir. 2001) (stating that “[i]n the absence of direct evidence of discrimination, a
plaintiff may establish a prima facie case of an ADA violation through circumstantial

16

evidence . . . .”) (footnote omitted). If a plaintiff seeks to prove his or her case through
circumstantial evidence, the burden-shifting framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-03 (1973) applies.6 See Holly v. Clairson Indus., 492
F.3d 1247, 1255 (11th Cir. 2007) (stating that “[t]he burden-shifting analysis of Title VII
employment discrimination claims is applicable to ADA claims.”) (citation and internal
quotation marks omitted).
Because the EEOC does not expressly state in its motion that it seeks to prove
its discrimination claim through circumstantial evidence or otherwise engage in the
McDonnell Douglas burden shifting analysis, the Court will not apply McDonnell
Douglas in ruling on the instant motion. “[I]f direct evidence of discrimination exists, the
familiar framework for establishing a prima facie case based on circumstantial evidence
and the alternating burdens of production and proof established by McDonnell Douglas
. . . do not apply.” EEOC v. Am. Tool & Mold, Inc., No. 8:12-cv-2772-T-35EAJ, 2014 WL
2185013, *5 (M.D. Fla. Apr. 16, 2014) (citations omitted). Accordingly, the Court will
address the elements of a prima facie case of discrimination without applying
McDonnell Douglas.
In order to establish a prima facie case of discrimination, the EEOC must show
that the charging party: “(1) had, or was perceived to have, a ‘disability;’ (2) was a
‘qualified’ individual; and (3) was discriminated against because of her disability.”
6

Under McDonnell Douglas, the plaintiff must first make a prima facie case of
discrimination. If the plaintiff makes a prima facie case, a presumption of discrimination
arises and the burden then shifts to the defendant to introduce evidence of a legitimate
nondiscriminatory reason for the adverse employment action. If the defendant satisfies
its burden, the plaintiff must then show that the articulated reason is pretextual. Lopez
v. AT&T, Corp., 457 F. App’x 872, 874 (11th Cir. 2012).
17

Carruthers v. BSA Adver., Inc., 357 F.3d 1213, 1215 (11th Cir. 2004) (citing Williams v.
Motorola, Inc., 303 F.3d 1284, 1290 (11th Cir. 2002)).7 For the reasons stated below,
the Court finds that genuine issues of material fact concerning the second and third
element preclude summary judgment in the EEOC’s favor.
a.

Disability under the ADA

In the instant case, Mr. Tarud-saieh has a disability under the ADA as a matter of
law. In its response to the EEOC’s statement of undisputed facts, FCSS does not
dispute that “[Mr.] Tarud-saieh has a physical disability-limb loss (right arm)” and that
this “disability substantially limits one or more major life activities, including but not
limited to the operation of his musculoskeletal function.” See EEOC’s Statement of
Undisputed Material Facts (DE# 23 at ¶¶ 1-2, 1/15/14); Defendant’s Statement of Facts
for Which There Exists a Genuine Issue to Be Tried (DE# 31 at 1, 2/18/14) (disputing
certain paragraphs, but not paragraphs 1 and 2). The ADA defines “disability” to
include: “a physical . . . impairment that substantially limits one or more major life
activities of such individual . . . .” 42 U.S.C. § 12102(1). Therefore, Mr. Tarud-saieh has
7

In its response to the EEOC’s summary judgment motion, FCSS restates the
elements which the EEOC must prove in the instant case:
in order to have a claim of disparate treatment based on disability, a
plaintiff must prove that: (1) he had a disability; (2) that he was a qualified
individual; (3) that the employer subjected the plaintiff to an adverse
action; and (4) that the defendant took the action based on the plaintiff’s
disability.
Defendant’s Response and Memorandum of Law in Opposition to Plaintiff’s Motion for
Summary Judgment (DE# 32, 2/18/14) (citing to 11th Cir. Pattern Jury Instr. (Civ.) 4.11
(2013)). Although the pattern jury instruction divides the elements into four parts, they
are the same in substance as the elements enumerated in Carruthers and cited by the
EEOC in its motion.
18

a disability under the ADA. Thus, the first prong of a prima facie case is met.
b.

Qualified Individual

Next, the EEOC must show that Mr. Tarud-saieh is a qualified individual under
the ADA. The ADA defines the term “qualified individual” as 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). The
ADA further provides that “consideration shall be given to the employer’s judgment as
to what functions of a job are essential, and if an employer has prepared a written
description before advertising or interviewing applicants for the job, this description shall
be considered evidence of the essential functions of the job.” Id.
“Whether a particular job function is essential is ‘evaluated on a case-by-case
basis by examining a number of factors.’” Samson v. Federal Exp. Corp., 746 F.3d
1200-01 (11th Cir. 2014) (quoting D'Angelo v. ConAgra Foods, Inc., 422 F.3d 1220,
1230 (11th Cir. 2005) (other citations omitted)). An “employer’s judgment [as to which
functions are essential] is ‘entitled to substantial weight in the calculus,’” but it is not
conclusive. Id. at 1201 (quoting Holly, 492 F.3d at 1285). In addition to an employer’s
judgment and any pre-advertising or pre-interview written job descriptions, other factors
include: “the amount of time spent on the job performing the function; the
consequences of not requiring the employee to perform the function; . . . the work
experience of past employees in the job; and the current work experience of employees
in similar jobs.” Id. (citing 29 C.F.R. § 1630.2(n)(3)(ii)-(vii)).
The EEOC argues that Mr. Tarud-saieh can perform the essential functions of

19

the unarmed security guard position at Westwind Properties. EEOC’s Motion for
Summary Judgment (DE# 22 at 13, 1/15/14). FCSS maintains that “[t]here is a genuine
issue of material fact as to whether [Mr.] Tarud-[s]aieh can perform in various
emergency scenarios – tracking a fleeing suspect, controlling an unruly child or minor,
detaining intruders and diffusing violent situations.” Defendant’s Response and
Memorandum of Law in Opposition to Plaintiff’s Motion for Summary Judgment (DE# 32
at 2, 2/18/14). FCSS states that these are essential functions of the job. Id.
(i)

Following Intruders While Calling Police

The EEOC summarizes the essential functions of the unarmed security guard
job as follows: “(1) driving a vehicle; [and] (2) calling the police/using a cell phone while
driving in order to report suspicious activity.” EEOC’s Motion for Summary Judgment
(DE# 22 at 12, 1/15/14). The EEOC notes that Mr. Tarud-saieh has a driver’s license
and is a licensed security guard in the State of Florida. Id. Additionally, the EEOC states
that to the extent that writing reports is an essential job function, Mr. Tarud-saieh can
write using his one arm. Id. at n.3.
FCSS disputes Mr. Tarud-saieh’s ability to “call the police [while] driv[ing] and
follow[ing] a fleeing intruder all at the same time.” Defendant’s Response and
Memorandum of Law in Opposition to Plaintiff’s Motion for Summary Judgment (DE# 32
at 2, 2/18/14). FCSS notes that Mr. Tarud-saieh “would have to take his hand off the
steering wheel after dialing a number to put it to his ear.” Id. In its reply, the EEOC
maintains that Mr. Tarud-saieh can follow a suspect in his car while on the telephone
with police. The EEOC argues that Mr. Tarud-saieh has the ability to perform this task

20

because he:
(1) is licensed as a security guard by the State of Florida; (2) has a valid
Florida driver’s license; (3) can perform all driving functions, including
turning, backing up, driving in reverse, and driving the speed limit
(including high speeds); and (4) regularly makes and receives telephone
calls while driving his vehicle.
EEOC’s Reply in Support of Motion for Summary Judgment (DE# 39 at 3, 4/28/14). The
EEOC also disputes FCSS’ characterization of the streets at Westwind Properties as
having “dead ends, and narrow, curvy streets.” Affidavit of German Bosque (DE# 33-2
at ¶8, 2/19/14). The EEOC cites to two photographs of the Westwind Properties
complex and argues that they “demonstrate that the streets are fairly typical, and not
particularly windy or narrow.” EEOC’s Reply in Support of Motion for Summary
Judgment (DE# 39 at 3 n.2, 4/28/14).
The Court cannot ascertain the nature of the streets at Westwind Properties from
these two, black and white, non-aerial photographs. At best, these photographs create
an issue of fact, but do not conclusively refute Mr. Bosque’s affidavit on this issue.
While Mr. Tarud-saieh may regularly make and receive telephone calls while driving his
vehicle, the Court is required to construe the facts in favor of FCSS. Here, the EEOC
has not established that Mr. Tarud-saieh could call the police while following a suspect,
who would likely be attempting to avoid being followed, while maneuvering the arguably
winding and dead end streets of this particular residential complex. Genuine issues of
material fact require that this issue be submitted to the jury.
The EEOC further notes that “Mr. Tarud-saieh would have been willing to
purchase a hands-free and/or voice activated cellular phone had FCSS ever raised any
concerns about his ability to make telephone calls while driving.” EEOC’s Motion for
21

Summary Judgment (DE# 22 at 9 n.2, 1/15/14). FCSS responds that “Mr. Tarud-[s]aieh
does not have a Bluetooth headset . . . . [and s]ince this is not a failure to
accommodate case, there is no claim that [FCSS] failed to reasonably accommodate
[Mr.] Tarud-[s]aieh. It is undisputed that [Mr.] Tarud-[s]aieh never asked for any type of
reasonable accommodation.” Defendant’s Response and Memorandum of Law in
Opposition to Plaintiff’s Motion for Summary Judgment (DE# 32 at 2, 2/18/14). The
EEOC responds that “FCSS’s assertions are nothing more than a red herring, as Mr.
Tarud-saieh did not need an accommodation” because “[he] was willing to personally
purchase a hands free voice activated phone – readily available technology – had
FCSS ever informed him that his use of the telephone was a concern.” See EEOC’s
Reply in Support of Motion for Summary Judgment (DE# 39 at 4 n.4, 4/28/14).
Assuming, for summary judgment purposes, that a hands free voice activated phone
would have allowed Mr. Tarud-saieh to follow suspects while calling police, the Court
does not need to decide this issue on summary judgment because there are still
genuine issues of material fact concerning the essential job functions of an unarmed
security guard for the reasons discussed below.
(ii)

Detaining Suspects and/or Breaking Up Violent Disputes

The EEOC further argues that detaining suspects and/or breaking up violent
disputes are not essential functions of the job. EEOC’s Motion for Summary Judgment
(DE# 22 at 13-16, 1/15/14).8 Alternatively, the EEOC argues that if these are essential
8

The EEOC also lists climbing fences. EEOC’s Motion for Summary Judgment
(DE# 22 at 16, 1/15/14). However, FCSS does not mention climbing fences as an
essential job function. Therefore, the Court concludes that it is not an essential job
function.
22

job functions, Mr. Tarud-saieh can perform these tasks. Id.
FCSS cites to the following as evidence that detaining intruders was an essential
function of the unarmed security guard position: (1) the deposition testimony of Mr.
Bosque;9 Mr. Tarud-saieh deposition testimony “that he understood when he took the
job with [FCSS] that it require[d] that he physically detain somebody if necessary” and
the written job description for this position (DE# 33-9, 2/19/14). Defendant’s Response
and Memorandum of Law in Opposition to Plaintiff’s Motion for Summary Judgment
(DE# 32 at 3-4, 2/18/14).
During his deposition, Mr. Bosque testified that there were situations where
security guards were expected to restrain someone:
Q.
I guess I'm trying to understand when a person would be required
or when they would be required to sort of engage in a situation where they
may be needed to restrain somebody.
A.
Some neighbors fighting, a husband beating a wife outside,
domestic violence, abusing a child or something, where you just can't
stand back and wait for the police to get there, you have to intervene.
Deposition of German Bosque (DE# 22-2 at 26, 1/15/14).
The EEOC argues that FCSS “mischaracterizes Mr. Tarud-saieh’s deposition
testimony.” EEOC’s Reply Statement of Facts (DE# 40 at 6, 4/28/14). At deposition, Mr.
Tarud-saieh testified as follows:

9

As noted above, the Court has stricken parts of Defendant’s Statement of Facts
for Which There Exists a Genuine Issue to Be Tried (DE# 31, 2/18/14) including the
deposition testimony of Mr. Bosque to the extent he seeks to testify as to what Mr.
Tarud-saieh can and cannot do and to the extent it impermissibly seeks to introduce
expert testimony in the form of lay opinion testimony based on Mr. Bosque’s police
training and experience. However, to the extent this testimony establishes the tasks of
an unarmed security guard, the Court will not disregard this evidence.
23

Q.
Was it your understanding that you might have to detain somebody
physically as part of your job at FCSS?
A.
Usually the officers, the guards never confront anybody. If we see
something dangerous, we call the police.
***
Q.
Was it your understanding there might be occasions while working
for FCSS that you would have to physically detain somebody who was
acting in a suspicion or inappropriate manner?
A.

Yes, if it happened to me I would confront the guy and call the
police.

Q.

Okay.

A.

I never had that problem.

Q.

I understand that.

Was it your understanding that part of the job required you if
needed to physically detain somebody yourself which means going
beyond just calling the police?
A.

Okay.

Q.

Yes?

A.

Yes.

Q.

That was your understanding?

A.

Yes, that was my understanding.

Q.

Did you have any concerns about your ability to physically detain
somebody who was acting in a belligerent manner?

A.

Yes, but never hold anybody with your arms, never. Not even if I
had two arms, never hold anybody. You talk to the person, if the
person doesn't obey you, you call the police.

Q.

Okay.

24

A.

But never hold anybody.

Deposition of Mr. Tarud-saieh (DE# 33-1 at 51-52, 2/19/14) (emphasis added). Thus,
Mr. Tarud-saieh did testify that it was his understanding that physically detaining
someone was a requirement of the job.
Moreover, the written job description cited by FCSS as evidence that detaining
intruders is an essential job function states:
ARMED OR UNARMED, UNIFORMED POSITION
***
DEPENDING ON CUSTOMERS INDIVIDUAL
NEEDS/REQUIREMENTS, SECURITY OFFICERS MAY BE
REQUIRED TO:
***
• APPREHEND/DETAIN VIOLENT FELON(S) UNTIL
POLICE ARRIVE
Defendant’s Exhibit G (DE# 33-9, 2/19/14) (capitalization and emphasis in original). The
EEOC argues that:
While generally a position description should be afforded consideration,
the position description in this case applies generally to all FCSS security
guards, both armed or unarmed, and simply states that “depending upon
customers individual needs/requirements, security officers may be
required to apprehend/detain violent felon(s) until police arrive. (Ex. 23-6
(emphasis added)). On its face, the position description is nothing more
than a list of tasks that all security officers, armed or unarmed, might have
to perform, depending upon the client.
EEOC’s Reply in Support of Motion for Summary Judgment (DE# 39 at 5, 4/28/14)
(emphasis in original). The written job description, while not conclusive, is evidence
suggestive of an issue of fact that should be resolved by the jury and not the Court on

25

summary judgment.
The EEOC further notes that Liddy Reynolds, Chief Administrative Officer of
FCSS, did not include detaining suspects among the possible tasks of Mr.
Tarud-saieh’s job responsibilities. EEOC’s Reply in Support of Motion for Summary
Judgment (DE# 39 at 5, 4/28/14). While Ms. Reynolds may have omitted the task of
detaining suspects from her list of job responsibilities, Mr. Tarud-saieh testified that it
was his understanding that physically detaining someone was part of the job
requirements, see supra. Similarly, Mr. Bosque testified that there were instances
where an unarmed security guard was expected to intervene and break up a dispute.
As evidence that detaining someone is not an essential function of the job, the
EEOC notes that “security guards at FCSS do not actually spend their time detaining
suspects.” EEOC’s Reply in Support of Motion for Summary Judgment (DE# 39 at 6,
4/28/14); see also id. at 7 (noting that “[Mr.] Bosque admitted during his deposition that,
for the years 2010-2013, he could only recall one unarmed security officer that had to
detain a suspicious person, and in that instance, he did not believe the officer had to
physically restrain the individual.”). However, the amount of time spent performing the
job function is only one factor the Court should consider in determining the essential job
functions. The nature of an emergency situation is that it generally does not occur
regularly. Unless Mr. Tarud-saieh was posted in a high crime area, it is unlikely that he
would have confronted suspects on a regular basis. Moreover, the fact that it is not a
regular occurrence does not mean it is not an important task of an unarmed security
guard.
The EEOC also notes that “[w]hen asked specifically about Mr. Tarud-saieh’s
26

position . . . [Mr.] Bosque did not state that physically detaining suspects or children
was a job requirement.” EEOC’s Reply in Support of Motion for Summary Judgment
(DE# 39 at 6, 4/28/14) (emphasis in original). During his deposition, Mr. Bosque
testified as follows:
Q.
Okay. And it was his job responsibility to – well, what were his job
responsibilities at the Westwind Properties?
A.
He had to, he had to write a daily report. He had to patrol the
property. He had to also park the car and go out on foot in between the
properties, in between the yards. He had to keep trespassers, unwanted
visitors -- there was a family there that kept on having police problems,
police intervention with juveniles smoking marijuana, unwelcome or
jumping the fence during closed hours when the pool was closed. He had
to deter criminal activity from happening. One time rims were stolen off a
car while my guards were there. And like the daytime guard, if any kids
were wandering around or cutting through, he wouldn't allow them to. He
would shoo them away, and he had to go like around the property, not to
go through the property. That was the daytime guard security guard. And
other stuff, I'm sure, but that's what I can recall.
Q.

If there was a problem at the property, what was he required to do?

A.
Well, if there is a problem, you have to, you know, address it, don't
ignore it and do what you can, and follow the person, follow the suspicious
car that's driving around, follow -- one time we had an incident where
somebody like jumped out of a car, they walked in between the houses,
and the guard had to follow. He didn't know whether to follow the car, the
house -- and then I couldn't even tell you what he did. But I remember that
incident. You know, take action, try to get a tag, do something, approach
the person with your flashlight, see what they are doing if you can. If
they are hurting somebody, then you need to step in. You can't just
stand back and call police. You do at all times, unless somebody is
being hurt physically, then you have to. You just can't stand around. I
use the example of a video that everybody has seen on TV where security
guards were standing on the platform and somebody was getting beat up,
and guards just stood there, like, you know, waiting for police to come.
Like that's not enough. The place was sued, the security company. You
have to step in. You got to separate. That's what your job is. You know,
you have to protect life.

27

Deposition of German Bosque (DE# 22-2 at 14, 1/15/14) (emphasis added). Thus, Mr.
Bosque’s testimony suggests that there are instances where an unarmed security guard
was expected to intervene in a dispute.
The EEOC also notes that FCSS did not perform any tests on its applicants
before hiring them and argues that “if physically detaining suspects/breaking up violent
disputes were requirements of the unarmed security job position, one would think that
FCSS would perform some type of physical agility test, medical background check, or
other evaluation to determine if the persons it hires can perform such tasks.” EEOC’s
Motion for Summary Judgment (DE# 22 at 14, 1/15/14). This argument is better suited
for cross-examination because it calls into question the truthfulness of FCSS’ position
that detaining suspects is an essential job requirement.
Finally, the EEOC notes that FCSS instructed another security guard not to
chase anyone or engage in any kind of confrontation and that if he witnessed
something suspicious, he was to call the police. EEOC’s Reply in Support of Motion for
Summary Judgment (DE# 39 at 7, 4/28/14) (citing EEOC’s Statement of Undisputed
Material Facts (DE# 23 at ¶41, 1/15/14)). Again, this is one of several factors in
determining whether a particular task is an essential job function.
At best, the evidence outlined by the EEOC creates a genuine issue of material
fact concerning whether detaining suspects and/or breaking up violent disputes were
essential functions of the unarmed security guard post. In Samson v. Federal Exp.
Corp., 746 F.3d 1200-01 (11th Cir. 2014), the Eleventh Circuit reversed the district
court’s order granting summary judgment in favor of the employer where some factors
weighed in favor of finding that test-driving was an essential function of a vehicle
28

technician position, while other factors did not. Id. at 1201-02. The Eleventh Circuit
concluded that “reasonable jurors could differ as to whether test-driving . . . trucks [wa]s
an essential function of the [t]echnician position” and “therefore, [the issue] should not
have been taken away from the jury and resolved as a matter of law.” Similarly here,
the Court concludes that there is a factual dispute concerning whether detaining
suspects and/or breaking up violent disputes were essential functions of the unarmed
security guard job. See also Keith v. Cnty. of Oakland, 703 F.3d 918, 926 (6th Cir.
2013) (“Whether a job function is essential is a question of fact that is typically not
suitable for resolution on a motion for summary judgment.”). Based on this record and
construing the facts in the light most favorable to FCSS, the jury should determine
whether detaining suspects and/or breaking up violent disputes are essential job
functions of an unarmed security guard.
(iii)

Whether Mr. Tarud-saieh Could Detain Suspects And/or
Breaking up Violent Disputes

The EEOC further argues that even assuming that detaining suspects is an
essential job requirement, Mr. Tarud-saieh could perform this task. See EEOC’s Reply
in Support of Motion for Summary Judgment (DE# 39 at 7, 4/28/14). According to the
EEOC, Mr. Tarud-saieh could detain a suspect by asking them to wait for police to
arrive and by using pepper spray. Id. The EEOC notes that “FCSS security guards are
undoubtedly permitted to use pepper spray, and thus no accommodation was required.”
Id. at 8 n.6.
Again, the Court finds that genuine issues of material fact preclude summary
judgment on whether Mr. Tarud-saieh could detain suspects and/or breaking up violent
29

disputes. The fact that the parties dispute the effectiveness of the methods proposed by
the EEOC, suggests that the issue should be left to the jury. See EEOC’s Reply in
Support of Motion for Summary Judgment (DE# 39 at 7, 4/28/14) (stating that “it
appears that FCSS would like the Court to believe that unarmed security guards,
purportedly making $8.00 per hour, are like police officers on a television show,
required to engage in high speed chases and hand to hand combat with dangerous
suspects.”); Defendant’s Response and Memorandum of Law in Opposition to Plaintiff’s
Motion for Summary Judgment (DE# 32 at 4, 2/18/14) (stating that “[t]he unrealistic
nature of Plaintiff’s contention that [Mr.] Tarud-Saieh can detain suspects by
questioning them and then asking if they could stick around until the police arrive
seems to be a clear concession that he could not perform this essential function of the
position at issue.”).
In sum, the Court concludes that there are genuine issues of material fact
concerning the essential functions of an unarmed security guard and whether Mr.
Tarud-saieh could perform those essential job functions. As such, whether Mr.
Tarud-saieh is a qualified individual must be decided by the jury.
c.

Disability Based Discrimination

Even assuming that there are no genuine issue of material fact precluding the
EEOC from establishing that Mr. Tarud-saieh is a qualified individual, the EEOC must
also show that FCSS discriminated against Mr. Tarud-saieh on the basis of his
disability. See Duble v. Fedex Ground Package Sys., Inc., No. 13-12749, 2014 WL
3631905, at *5 (11th Cir. Jul. 24, 2014) (“To establish the third prong, the plaintiff must

30

show the employer discriminated against him on the basis of his disability.”) (Holly, 492
F.3d at 1261-62).
FCSS argues that it is entitled to the “same actor” inference. Defendant’s
Response and Memorandum of Law in Opposition to Plaintiff’s Motion for Summary
Judgment (DE# 32 at 1-2, 2/18/14). The same actor inference has been described as
follows: “where . . . ‘the hirer and the firer are the same individual and the termination of
employment occurs within a relatively short time span following the hiring, a strong
inference exists that discrimination was not a determining factor for the adverse action
taken by the employer.’” Dingman v. Delta Health Group, Inc., 26 F. Supp. 2d 1349,
1354 (S.D. Fla. 1998) (Proud v. Stone, 945 F.2d 796, 797 (4th Cir.1991)). Dingman was
an age discrimination case brought under the Age Discrimination in Employment Act of
1967 (“ADEA”). Id. at 1350. The EEOC argues that “[t]he same actor inference . . . is
not generally applicable in the context of the ADA.” EEOC’s Reply in Support of Motion
for Summary Judgment (DE# 39 at 2, 4/28/14). According to the EEOC, “the same
actor inference can only be applied in situations where the individual who hired the
disabled applicant had full knowledge of the disability.” Id. The EEOC reasons that
FCSS did not have full knowledge of Mr. Tarud-saieh’s disability because Mr. Bosque
and Ms. Reynolds were both under the mistaken belief that Mr. Tarud-saieh’s prosthetic
arm was a functioning prosthetic arm, and not merely cosmetic. Id. at 3.
In Williams v. Vitro Servs., 144 F.3d 1438, 1440 (11th Cir. 1998), the Eleventh
Circuit addressed the same actor inference in the context of an ADEA case. The
Eleventh Circuit stated that: “it is important to reiterate that this inference is a
permissible – not a mandatory – inference that a jury may make in deciding whether
31

intentional discrimination motivated the employer’s conduct.” Id. at 1443. In Williams,
the Eleventh Circuit reversed the district court’s order granting summary judgment in
favor of the employer. The Eleventh Circuit “conclude[d] that [the employer]
demonstrated that the same actor at [the company] was primarily responsible for hiring,
promoting, and firing [the plaintiff]; this “same actor” evidence, however, constitutes
evidence from which a jury – not the court – is permitted to infer that [the
employer] terminated [the plaintiff] for non-discriminatory reasons.” Id. at 1446
(emphasis added).
Similarly here, the Court will not apply the same actor inference on summary
judgment in the instant case. FCSS is free to argue at trial that it did not discriminate
against Mr. Tarud-saieh because the same individuals who hired Mr. Tarud-saieh also
terminated him within a short period of time. As the Eleventh Circuit explained in
Williams:
“same actor” evidence of the sort introduced in this instance constitutes
evidence that a jury may consider in deciding the ultimate issue of
intentional discrimination. Evidence that the same actor both hired and
fired the plaintiff, in some circumstances, may help to convince a jury that
the defendant’s proffered legitimate reasons for its decision are worthy of
belief; it is the province of the jury rather than the court, however, to
determine whether the inference generated by “same actor”
evidence is strong enough to outweigh a plaintiff’s evidence of
pretext.
Williams, 144 F.3d at 1443 (footnote omitted; emphasis added). In the instant case, the
jury, not the Court, should draw the appropriate inference from FCSS’ actions in hiring
and terminating Mr. Tarud-saieh.
The EEOC argues that the Court should find as a matter of law that FCSS
discriminated against Mr. Tarud-saieh on the basis of his disability because Mr. Bosque
32

told Mr. Tarud-saieh: “Well, you can’t go back to the post. You can’t do the things that
they need you to do at that post,” once he learned that Mr. Tarud-saieh’s prosthetic arm
was a non-functioning arm. EEOC’s Motion for Summary Judgment (DE# 22 at 17,
1/15/14). The EEOC also cites to Mr. Bosque’s deposition testimony to show that he
terminated Mr. Tarud-saieh without inquiring whether he could drive with one arm, talk
on the telephone while driving, use a hand-free telephone device, could take notes with
one arm or jump over or “shut” a fence. Id. “Under Eleventh Circuit law, only the most
blatant remarks, whose intent could mean nothing other than to discriminate on the
basis of some impermissible factor constitute direct evidence of discrimination.” Dixon
v. The Hallmark Cos., Inc., 627 F. 3d 849, 854 (11th Cir. 2010) (Title VII case)10
(internal quotation marks omitted). The EEOC has not met its burden of showing
intentional discrimination as a matter of law.
Because there are genuine issues of material fact concerning: (1) the essential
functions of an unarmed security guard; (2) whether Mr. Tarud-saieh could perform
those essential functions and (3) whether FCSS’ discriminated against Mr. Tarud-saieh
on the basis of his disability, the EEOC is not entitled to summary judgment on its
discrimination claim.11

10

The Eleventh Circuit has stated that it “appl[ies] the law developed in Title VII,
ADEA, and ADA cases interchangeably.” Bass v. Lockheed Martin Corp., 287 F. App’x
808, 810 (11th Cir. 2008).
11

The EEOC also argues that FCSS cannot show Mr. Tarud-saieh is a direct
threat to himself or others. See EEOC’s Motion for Summary Judgment (DE# 22 at 18,
1/15/14). FCSS did not address this argument in its response to the summary judgment
motion. Therefore, the Court will deem FCSS’ position that Mr. Tarud-saieh is a direct
threat to himself or others abandoned. See Great S. Wood Pres., Inc. v. Am. Home
Assur. Co., 505 F. Supp. 2d 1287, 1297 (M.D. Ala. 2007) (stating that “[t]he burden is
33

2.

Retaliation Claim
The EEOC also seeks summary judgment on its retaliation claim. The ADA

states that “[n]o person shall discriminate against any individual because such
individual has opposed any act or practice made unlawful by this chapter or because
such individual made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a).
Retaliation under the ADA may be proved through direct or circumstantial evidence.
See Dickey v. Dollar Gen. Corp., 351 F. App’x 389, 392 (11th Cir. 2009) (stating that
“[a] plaintiff can establish a retaliation claim through either direct or circumstantial
evidence”). Here, the EEOC argues that there is direct evidence of retaliation, see
EEOC’s Motion for Summary Judgment (DE# 22 at 20-21, 1/15/14), therefore the Court
will not apply the McDonnell Douglas burden-shifting analysis to the EEOC’s retaliation
claim.
The EEOC argues that FCSS retaliated against Mr. Tarud-saieh by refusing to
reassign him to a different job post. See EEOC’s Motion for Summary Judgment (DE#
22 at 5, 1/15/14). “To establish a prima facie case for retaliation under the ADA, the
plaintiff must show ‘(1) he engaged in a statutorily protected expression; (2) he suffered
an adverse employment action; and (3) there was a causal link between the adverse
action and his protected expression.’” Duble v. Fedex Ground Package Sys., Inc., No.
13-12749, 2014 WL 3631905, at *6 (11th Cir. Jul. 24, 2014) (quoting Lucas v. W.W.

on the parties to formulate arguments, and a plaintiff's failure to list an enumerated
claim and brief an issue in a memorandum of law in opposition to a defendant's motion
for summary judgment is deemed an abandonment of that claim.”), aff’d on other
grounds, 292 F. App’x 8 (11th Cir. 2008).
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Grainger, Inc., 257 F.3d 1249, 1260 (11th Cir. 2001). According to the EEOC, the first
two elements are readily met in the instant case because “Mr. Tarud-saieh engaged in
statutorily protected activities by filing a charge of discrimination and by participating in
this lawsuit” and FCSS “failed to assign him to, among other positions, an unarmed
driving post in Kendall.” EEOC’s Motion for Summary Judgment (DE# 22 at 20,
1/15/14). In its response to the EEOC’s summary judgment motion, FCSS does not
address the first two elements of a retaliation claim. Therefore, the Court will deem
these two elements admitted.
At issue is the third element: whether there was a causal link between FCSS’
failure to assign Mr. Tarud-saieh to another job post and Mr. Tarud-saieh’s protected
activities. The EEOC argues that Ms. Reynolds’ deposition testimony is direct evidence
that FCSS’ decision not to assign Mr. Tarud-saieh to the Kendall driving position was
retaliatory. EEOC’s Motion for Summary Judgment (DE# 22 at 20, 1/15/14). During her
deposition, Ms. Reynolds testified as follows:
Q.
Was Mr. Bosque going to try to find Mr. Tarud Saieh another
driving post?
A.
If we get called for another driving post we would have definitely
given him a call for another position. We just recently got a position for a
driving post, just recently in his area in Kendall.
Q.

Did you consider calling him?

A.
Yes, but obviously he moved forward to the EEOC and said
that we were discriminatory against him. He would have had his
opportunity of working for us. Christopher was out of work for maybe a
year or more and we called Chris and let Chris know, hey, we have an
opening, are you still unemployed? And he said, yes, I would like to take
the opportunity. And Chris is now working for us at that post in Kendall.
We also called another of our guards and he said he was already working.
So that was it.
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Q.

So why didn't you call Mr. Tarud Saieh?

A.
Because he was already filing for the EEOC. And we didn't
know that we could be in contact with him to offer him the job. And
the last time I researched, I saw him on the Internet with another job. So I
don't think he would have accepted a position with us. We didn't have any
ill means or will against him so.
Deposition of Liddy Reynolds (DE# 22-4 at 16, 1/15/14) (emphasis added).
In its reply, the EEOC also cites to Mr. Bosque’s deposition testimony as
evidence that FCSS’ actions were retaliatory. EEOC’s Reply in Support of Motion for
Summary Judgment (DE# 39 at 8, 4/28/14). During his deposition, Mr. Bosque testified
as follows:
Q.

It's a walking post or a vehicle post?

A.

It's a vehicle post.

Q.

Was Mr. Tarud Saieh considered for that post?

A.

No, he was not.

Q.

Why not?

A.
Because I just got that post recently and for the fact that we
were in the lawsuit. I don't know if I'm allowed to contact him or not.
So once this EEOC thing started – because that's a post I would have
considered him for.
Q.
Is there something unique about that post that you believe he
would have been able to do the work?
A.
Well, if I'm ordered by the EEOC to put him to work, then that's the
one that I would consider him for because it's a driving post. There is no
backing up, there are no dead end streets, it's just going in circles around
the building.
But, again, I still feel that I would still think that he cannot perform
what other guards could do if something were to happen.
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Deposition of German Bosque (DE# 22-3 at 13, 1/15/14) (emphasis added).
Construing the facts in the light most favorable to FCSS, as the Court is required
to do, there are genuine issues of material fact concerning whether there was a causal
connection between Mr. Tarud-saieh’s EEOC charge of discrimination/lawsuit and
FCSS’ failure to assign Mr. Tarud-saieh to another post. The Eleventh Circuit has
stated that “[d]irect evidence of discrimination is evidence which reflects a
discriminatory or retaliatory attitude correlating to the discrimination or retaliation
complained of by the employee and that, if believed, proves the existence of a fact
without inference or presumption.” Hamilton v. Southland Christian School, Inc., 80
F.3d 1316, 1320 (11th Cir. 2012) (internal quotation marks and citation omitted) (Title
VII case). Ms. Reynold’s and Mr. Bosque’s deposition testimony falls short of this
exacting standard. Both Ms. Reynolds and Mr. Bosque testified that because of the
EEOC charge they believed they were not allowed to contact Mr. Tarud-saieh. Based
on these statements the Court cannot find retaliatory intent without an inference.
Therefore, this deposition testimony is not direct evidence of retaliation against Mr.
Tarud-saieh.
Here, a reasonable jury could determine that FCSS did not offer Mr. Tarud-saieh
a different job position based on its mistaken belief that it was prohibited from
contacting Mr. Tarud-saieh after he initiated proceedings with the EEOC and not for any
retaliatory reason. Thus, whether there was a causal link between the adverse action
and Mr. Tarud-saieh’s protected expression should be determined by a jury.
3.

FCSS’ Affirmative Defenses
Finally, the EEOC seeks summary judgment on FCSS’ affirmative defenses of
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failure to engage in good faith conciliation prior to filing the instant action and third party
liability. See EEOC’s Motion for Summary Judgment (DE# 22 at 5, 1/15/14). The Court
will address these affirmative defenses in turn.
a.

Failure to Conciliate in Good Faith

The applicable statute provides that:
If within thirty days after a charge is filed with the Commission or within
thirty days after expiration of any period of reference under subsection (c)
or (d) of this section, the Commission has been unable to secure from the
respondent a conciliation agreement acceptable to the Commission, the
Commission may bring a civil action against any respondent not a
government, governmental agency, or political subdivision named in the
charge.
42 U.S.C. § 2000e-5(f)(1). Moreover, “[i]f the Commission determines after [an]
investigation that there is reasonable cause to believe that the charge is true, the
Commission shall endeavor to eliminate any such alleged unlawful employment
practice by informal methods of conference, conciliation, and persuasion.” Id. at §
2000e-5(b).
In the instant case, FCSS asserts the failure to seek conciliation in good faith as
an affirmative defense. See Defendant’s Answer and Affirmative Defenses to Plaintiff’s
Complaint (DE# 9 at 5, 3/28/13). The EEOC raises two arguments with respect to the
conciliation affirmative defense: (1) the failure to conciliate in good faith is not an
affirmative defense and (2) the EEOC conciliated in good faith. FCSS does not address
the first argument. With respect to the second argument, FCSS argues that the EEOC
did not engage in conciliation in good faith, as discussed below. Defendant’s Response
and Memorandum of Law in Opposition to Plaintiff’s Motion for Summary Judgment
(DE# 32 at 6-8, 2/18/14).
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The Court does not need to resolve the issue of whether failure to conciliate in
good faith is an actual affirmative defense, because the EEOC has shown that it
engaged in good faith conciliation prior to filing the instant action and is entitled to
summary judgment on this issue. The EEOC argues that in order to show good faith
conciliation, it must have: “(1) outline[d] to the employer the reasonable cause for its
belief that Title VII has been violated; (2) offer[ed] an opportunity for voluntary
compliance; and (3) respond[ed] in a reasonable and flexible manner to the reasonable
attitudes of the employer.” EEOC’s Motion for Summary Judgment (DE# 22 at 23,
1/15/14) (citing EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256, 1259 (11th 2003)).
FCSS does not dispute that these are the elements the EEOC must show to
satisfy the requirements of conciliation. See Defendant’s Response and Memorandum
of Law in Opposition to Plaintiff’s Motion for Summary Judgment (DE# 32 at 7, 2/18/14)
(citing the same elements of Asplundh, 340 F.3d at 1259). Rather, FCSS maintains that
the EEOC did not meet its obligation to conciliate because when it initially issued its
cause determination, it failed to attach a proposed conciliation agreement, imposed a
deadline of September 24, 2012 to respond to a proposed conciliation agreement that
was not attached and sent a notice to the defendant before the September 24, 2012
deadline stating that conciliation had failed. Id. at 6. Moreover, FCSS argues that “the
EEOC did not respond at all to [FCSS]’s concerns nor did it make any reasonable effort
to conciliate this matter before filing suit.” Id. at 7.
FCSS does not dispute that “on October 2, 2012 a conciliation proposal was
faxed to [it].” Defendant’s Response and Memorandum of Law in Opposition to
Plaintiff’s Motion for Summary Judgment (DE# 32 at 6, 2/18/14). However, FCSS takes
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issue with the contents of the proposed conciliation agreement. FCSS states that it was
“a boilerplate document” which contained the name of an individual who does not work
for FCSS and the proposed conciliation agreement did not address a concern raised by
FCSS in a letter dated September 20, 2012.12 Id. at 6-7. FCSS further notes that the
EEOC made no additional attempt to contact the defendant regarding conciliation. Id. at
7.
The EEOC acknowledges that its “initial conciliation attempts were not perfect,”
but nonetheless argues that it “corrected any error by reopening the conciliation
process and sending a proposed conciliation agreement on October 2, 2012.” EEOC’s
Reply in Support of Motion for Summary Judgment (DE# 39 at 9, 4/28/14). The EEOC
further notes that: (1) its “conciliation proposal requested specific injunctive relief, and
outlined the types of damages [it] was seeking as part of any conciliation agreement;”
(2) it provided FCSS with additional time to respond to the proposed conciliation
agreement on October 18, 2012 “warn[ing] FCSS that [the] failure to respond would
result in [the] EEOC failing conciliation” and “provid[ing] FCSS with contact information
so that FCSS could raise any questions or concerns” and (3) waited until November 26,
2012 to fail conciliation. Id.

12

FCSS states summarily that the proposed conciliation agreement did not
address any of FCSS’ concerns raised in the September 20, 2012 letter. FCSS fails to
identify with any specificity which concerns were raised in its September 20, 2012 letter
but were not addressed by the proposed conciliation agreement. As the party opposing
summary judgment on its affirmative defense, FCSS has the burden of raising
arguments in sufficient detail. Moreover, to the extent that the September 20, 2012
letter raised the concern that returning Mr. Tarud-saieh to his position as a security
guard would expose FCSS to liability from third-parties, the proposed conciliation
agreement did not ask FCSS to reinstate Mr. Tarud-saieh. Therefore, the undersigned
is unpersuaded by this argument.
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The Court finds that the EEOC has shown that it is entitled to summary judgment
on the conciliation issue. The instant case is distinguishable from Asplundh where the
EEOC’s case was dismissed for failure to conciliate in good faith. Asplundh, 340 F.3d at
1259. In Asplundh, the EEOC took three years to issue its [l]etter of [d]etermination and
one week later provided the defendant with a “proposed, nation-wide [c]onciliation
[a]greement, which [only] provided twelve days for” the defendant’s counsel to accept,
reject or submit a counterproposal to the conciliation agreement. Id. at 1259-60.
Additionally, the EEOC in Asplundh never communicated to the defendant a theory of
liability for the alleged conduct of a non-employee, did not respond to the defendant’s
request for “a reasonable extension of time” and “the very next day . . . sent another
letter . . . terminating conciliation and announcing its intent to sue.” Id. at 1260. Thirteen
days later, the EEOC filed a lawsuit. Id. This case is also distinguishable from High
Speed Enter., Inc., where the district court concluded that the EEOC failed to conciliate
in good faith because it “refused to provide any basis for its damages calculations
despite Defendant's repeated requests.” EEOC v. High Speed Enter., Inc., No. CV-08017489-PHX-ROS, 2010 WL 8367452, at *5 (D. Ariz. Sept. 30, 2010) (emphasis
added).
Here, the EEOC has shown good faith conciliation as a matter of law and is
entitled to summary judgment on this issue. Although the EEOC initially failed to attach
a proposed conciliation agreement, it corrected this error as outlined above and allowed
FCSS additional time to participate in conciliation. Moreover, there is no evidence that
FCSS made any attempt to conciliate or otherwise engage in settlement discussions
between October 2, 2012 and November 26, 2012. Based on these undisputed facts,
41

the undersigned concludes that the EEOC engaged in good faith conciliation.
Accordingly, the EEOC is entitled to summary judgment on this issue.
b.

Third Party Liability

FCSS failed to raise any argument in support of its third party liability affirmative
defense. As such, the Court will deem this affirmative defense abandoned. See
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) ( “There is
no burden upon the district court to distill every potential argument that could be made
based upon the materials before it on summary judgment. Rather, the onus is upon the
parties to formulate arguments; grounds alleged in the complaint but not relied upon in
summary judgment are deemed abandoned.”) (internal citations omitted).
CONCLUSION
In sum, viewing all the evidence in the light most favorable to FCSS, there are
genuine issues of material fact that preclude summary judgment on the EEOC’s
disability discrimination and retaliation claims. These disputed issue of fact must be
resolved by a jury. Accordingly, it is
ORDERED AND ADJUDGED that the EEOC’s Motion for Summary Judgment
(DE# 22, 1/15/14) is GRANTED in part and DENIED in part. The EEOC is entitled to
summary judgment on FCSS’ failure to conciliate in good faith and FCSS’ third party
liability affirmative defense is deemed abandoned. The EEOC’s claims of discrimination
and retaliation shall proceed to trial.
DONE AND ORDERED in Chambers at Miami, Florida, this 24th day of
September, 2014.
___________________________________
JOHN J. O'SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies provided:
All counsel on record
42