Guasch v. Carnival Corporation
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT denying as moot 43 Motion to Strike ; granting 22 Motion for Summary Judgment. Closing Case. Motions Terminated: 43 Defendant's MOTION to Strike Exhibits to Plaint iff's Pretrial Stipulation filed by Carnival Corporation, 22 Defendant's MOTION for Summary Judgment and Incorporated Memorandum of Law filed by Carnival Corporation. Signed by Judge Marcia G. Cooke on 1/9/2017. (tm) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 15-23454-Civ-COOKE/TORRES
CARNIVAL CORPORATION, a
foreign profit corporation,
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Baldomero Guasch (“Plaintiff” or “Guasch”) brings this action against
Defendant Carnival Corporation (“Defendant” or “Carnival) for disability discrimination and
retaliation under the Florida Civil Rights Act of 1992 (“FCRA”), Chapter 760 Fla. Stat., and
the Family and Medical Leave Act (“FMLA”). 29 U.S.C. § 2615(a). Carnival filed a Motion
for Summary Judgment (“Motion”) (ECF No. 22), which Guasch has failed to respond to
despite multiple extensions of time (ECF Nos. 33, 38). For the reasons below, Carnival’s
Motion is granted.
Guasch is an HIV-positive male. ECF No. 1-1. He worked as a “Tele-Solutions
Specialist” at Carnival from October 16, 2000 through October 9, 2014, handling telephone
inquiries related to existing cruise bookings and travel plans. Def.’s Concise Statement of
Undisputed Material Facts ¶¶ 1, 4, ECF No. 23 (“Def.’s Facts”).1 Guasch reported to the
Guest Solutions Supervisor—Andres Borrero (“Borrero) at first, and then Hilda Perez
Defendant’s statement of undisputed material facts are deemed admitted to the extent they
are supported by evidence in the record and not specifically disputed by Plaintiff in an
opposing statement of facts. S.D. Fla. L.R. 56.1(b); see also Gossard v. JP Morgan Chase & Co.,
612 F. Supp. 2d 1242, 1245 – 46 (S.D. Fla. 2009). A nearly identical set of facts are set forth in
Defendant’s Proposed Pretrial Stipulation, see ECF No. 41 at 3 – 10, which Plaintiff responded
to in a separate pretrial stipulation. See ECF No. 42 at 1 –4. Because Plaintiff is now
proceeding pro se, I will consider his comments to Defendant’s facts in his pretrial stipulation
as an opposing statement of facts. Though, as discussed, most of Plaintiff’s comments fail to
refute the facts outlined in Defendant’s Motion.
(“Perez”)—who in turn reported to the Director of Service, Solutions, and Support, Mitzi
White (“White”). Id. ¶¶ 5 –6. Guasch fell under White’s supervisory authority starting in early
2011. Id. ¶ 7. He worked from home during his time under White, meeting White and Borrego
in-person a handful of times and never meeting Perez at all. Id.
Carnival maintains phone productivity standards for Solutions Specialists like Guasch.
Id. ¶¶ 8 –10. Instances where a Solutions Specialist is unavailable to take calls during a regular
workday, such as for restroom breaks or personal calls, are known as “AUX time.” Id. ¶ 11.
Excessive use of AUX time on multiple days can result in unsatisfactory phone productivity
ratings, and disciplinary actions including termination. Id. ¶¶ 12 – 13. Guasch failed to meet
Carnival’s phone productivity standards many times during his employment, and was warned
about his high AUX time at several monthly and annual reviews. Id. ¶¶ 14 – 15.
Guasch received multiple corrective counseling notices at the start of 2014 about his
excessive AUX time. Id. ¶¶ 16 – 18. This was the first time Guasch received multiple corrective
notices in a one-year period. Id. ¶ 22. Guasch then received a written reminder notification of
his excessive AUX time in August 2014, followed by a final warning the following month. Id.
¶¶ 19 – 20. Nonetheless, Guasch exceeded his AUX time on three separate days in September
2014. Id. ¶ 21. After an in-person meeting with White on October 9, 2014, Guasch was
terminated. Id. ¶ 23 – 24.
Guasch was approved for intermittent FMLA leave at some point in July 2014, though
parties dispute exactly when and whether it was a sufficient amount of leave. While the parties
agree to Guasch’s history of requesting and being granted FMLA leave throughout his time at
Carnival, id. ¶¶ 29, 31, they disagree about whether Guasch’s supervisors knew of his HIVpositive medical condition. Carnival asserts that its Human Resources Department does not
share an employee’s medical information with his or her supervisor. Id. The parties also
dispute whether Guasch’s earlier AUX time entries were properly adjusted to account for
computer glitches and FMLA leaves.
Summary judgment “shall be granted if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Allen v. Tyson Foods, Inc., 121 F.3d 642 (11th Cir. 1997) (internal quotation
marks omitted); see also Fed. R. Civ. P. 56. In making this assessment, a court “must view all
the evidence and all factual inferences reasonably drawn from the evidence in the light most
favorable to the nonmoving party,” Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d
1278, 1285 (11th Cir. 1997), and “must resolve all reasonable doubts about the facts in favor of
the non-movant.” United of Omaha Life Ins. Co. v. Sun Life Ins. Co. of Am., 894 F.2d 1555, 1558
(11th Cir. 1990).
“By its very terms, this standard provides that the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247 – 48 (1986) (emphasis in original). “As to materiality,
the substantive law will identify which facts are material. Only disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”
Id. at 248. “For factual issues to be considered genuine, they must have a real basis in the
record . . . mere conclusions and unsupported factual allegations are legally insufficient to
defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005)
“Even in an unopposed motion, the moving party still bears the burden of identifying
[the evidence] which it believes demonstrates the absence of a genuine issue of material fact.”
Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009) (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986)). Further, the “district court need not sua sponte review all of the
evidentiary materials on file at the time the motion is granted, but must ensure that the motion
itself is supported by evidentiary materials.” United States v. 5800 SW 74th Ave., 363 F.3d 1099,
1101 (11th Cir. 2004). After review of the evidence, summary judgment is proper “against a
party who fails to make a showing sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477
U.S. at 322. In those cases, there is no genuine issue of material fact “since a complete failure
of proof concerning an essential element of the nonmoving party's case necessarily renders all
other facts immaterial.” Id. at 323.
A. FCRA Claim
To establish a prima facie case of FCRA discrimination, a plaintiff must show that “(1)
he has a disability; (2) he is a qualified individual; and (3) he was subjected to unlawful
discrimination as the result of his disability.” Gordon v. E.L. Hamm & Assocs., Inc., 100 F.3d 907,
910 (11th Cir. 1996); see also Dulaney v. Miami-Dade Cty., 481 F. App’x 486, 489 n.2 (11th Cir.
2012) (noting how FCRA claims “are analyzed using the same framework as [Americans with
Disabilities Act] claims”). “To succeed on a claim of disability discrimination, the plaintiff
must show the decision-maker of the adverse employment action was aware of the disability.”
Moreira v. Am. Airlines, Inc., 157 F. Supp. 3d 1208, 1215 (S.D. Fla. 2016). “Further, neither
statements revealing a general health problem nor a general appearance of being sick are
sufficient to put an employer on notice of an employee’s disability.” Stanley v. Lockheed Martin
Corp., No. 6:11-CV-1649-ORL-36, 2013 WL 3974655, at *5 (M.D. Fla. Aug. 1, 2013).
Beyond Guasch’s conclusory and speculative comments in his filings, there is no
evidence that shows Guasch’s direct supervisors had knowledge of his medical condition.
Carnival asserts that only its Human Resources Department is aware of employee’s medical
conditions. None of Guasch’s conversations or performance reviews about his excessive AUX
time hint at supervisor knowledge of his HIV-positive status. Nor is there record of Guasch
being harassed, treated poorly, or even complaining before about workplace misconduct due to
his medical condition. Without more, Guasch’s FCRA claim fails.
B. FMLA Claim
A plaintiff may bring both interference and retaliation claims under the FMLA. For
interference claims, “an employee need only demonstrate by a preponderance of the evidence
that he was entitled to the benefit denied.” Strickland v. Water Works & Sewer Bd. of City of
Birmingham, 239 F.3d 1199, 1207 (11th Cir. 2001). Retaliation claims place the added burden
on a plaintiff to show that “his employer intentionally discriminated against him in the form of
an adverse employment action for having exercised an FMLA right. . . . In other words, . . .
that his employer's actions were motivated by an impermissible retaliatory or discriminatory
animus.” Id. (internal quotation marks omitted). A prima facie retaliation claim must show the
“(1) [employee] engaged in a statutorily protected activity; (2) he suffered an adverse
employment decision; and (3) the decision was causally related to the protected activity.” Id.
Neither type of FMLA claim succeeds here. Carnival granted Guasch’s past FMLA
requests, including one he made in July 2014. The record evidence shows Guasch’s
termination followed a series of warnings throughout 2014 about his excessive AUX time use,
including a final warning the month before he was fired. Terminating an employee for
violating a company policy like Carnival’s AUX time guidelines is a permissible,
nondiscriminatory reason that does not animate a retaliation claim. See Usry v. Liberty Reg’l
Med. Ctr., Inc., 560 F. App'x 883, 888 – 90 (11th Cir. 2014).
Guasch protests the delay in receiving FMLA benefits in 2014 and the intermittent
leave that was ultimately approved. It is possible that granting only intermittent leave when
full leave was requested and warranted could trigger an FMLA issue. See Kaylor v. Fannin Reg’l
Hosp., Inc., 946 F. Supp. 988, 998 (N.D. Ga. 1996) (noting how “cooperation of the employee
and employer in scheduling intermittent leave is vital” and citing to U.S. Senate report that
discouraged FMLA intermittent leave “unless the employee and the employer agree to such an
arrangement.”). But no cited record evidence suggests Carnival’s granting of intermittent leave
was ill advised or unilaterally executed.
What is more, any purported computer glitches or staff mistakes in adjusting Guasch’s
AUX time do not alter my conclusions. Even assuming his AUX time was miscalculated, and
that those mistakes led to his firing, Guasch does not have a viable FCRA or FMLA claim. As
the Eleventh Circuit has bluntly put, an “employer may fire an employee for a good reason, a
bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not
for a discriminatory reason.” Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d 1181, 1187 (11th
Cir. 1984). The record evidence does not bear any discriminatory reason for Guasch’s
Therefore, it is ORDERED and ADJUDGED that Defendant’s Motion for Summary
Judgment (ECF No. 22) is GRANTED. The Clerk shall CLOSE this case. All pending
motions are DENIED as moot. I will issue a separate judgment pursuant to Rule 58 of the
Federal Rules of Civil Procedure.
DONE and ORDERED in chambers at Miami, Florida, this 9th day of January 2016.
Copies furnished to:
Edwin G. Torres, U.S. Magistrate Judge
Counsel of record
Baldomero Guasch, Pro se
9711 NW 4th Lane
Miami, FL 33172
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