Salem v. City of Port St. Lucie

Filing 42

ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND CLOSING CASE; granting 27 Motion for Summary Judgment. Closing Case. Signed by Judge Robin L. Rosenberg on 10/30/2018. See attached document for full details. (ail)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 2:17-CV-14431-ROSENBERG/MAYNARD
THEODORE SALEM,
Plaintiff,
v.
CITY OF PORT ST. LUCIE,
Defendant.
_________________________/
ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT AND CLOSING CASE
This matter is before the Court on Defendant City of Port St. Lucie’s Motion for
Summary Judgment, DE 27. The motion has been fully briefed, and the Court has considered
Defendant’s Motion for Summary Judgment, DE 27, Defendant’s Statement of Undisputed
Facts, DE 28, Plaintiff Theodore Salem’s Response, DE 34, Plaintiff’s Statement of Disputed
Facts in Opposition to Defendant’s Statement of Facts, DE 35, Defendant’s Reply, DE 40, all
accompanying exhibits, the arguments heard at the Status Conference held on September 25,
2018, DE 36, and the record, and is otherwise fully advised in the premises.
Plaintiff’s Complaint, DE 1, alleges five claims based on his dismissal from the City of
Port St. Lucie Police Department. Claim I alleges an Americans with Disabilities Act (ADA)
violation, Count II, a Title VII of the Civil Rights Act Violation (Title VII), Claim III, a violation
of the Family and Medical Leave Act (FMLA), Count IV, an intentional infliction of emotion
distress claim, and Count V, a breach of contract claim. The Court dismissed Count IV, an
intentional infliction of emotional distress claim, on Defendant’s Motion to Dismiss. DE 18. The
parties stipulated to the dismissal of Count II, a violation of Title VII claim, following the status

conference on September 25, 2018, DE 39. Accordingly, this Order addresses Plaintiff’s
remaining claims, Counts I, III, and V.
For the reasons set forth below, the Motion is granted in favor of Defendant on all counts.
I.

FACTS 1

In April 2015, Plaintiff began working for the City of Port St. Lucie Police Department, a
subdivision of Defendant, as a police officer assigned to the Uniformed Road Patrol Unit. DE 1
(Complaint), ¶ 14. 2 Plaintiff claims he had experience as a police officer, having previously
served in Pennsylvania and Brevard County, Florida. Id. ¶ 15. In August 2015, Plaintiff was
directed to respond to an off-duty detail at the Baker Act Ward of the St. Lucie Medical Center
Emergency Room. DE 28 (Defendant’s Facts), ¶ 8. Plaintiff alleges that he was not properly
trained for this assignment. DE 35 (Plaintiff’s Facts), ¶¶ 31–32; DE 1 (Complaint), ¶¶ 19–20.
Defendant disputes this, and counters that there is no special training for this assignment. DE 17
(Defendant’s Answer), ¶¶ 19–20; DE 35-1 (Bolduc Deposition), p. 67–78.
While in the Emergency Room, there was a physical altercation between Plaintiff and a
patient. DE 28 (Defendant’s Facts), ¶ 9. Plaintiff provides further details, which Defendant
disputes, about this altercation in his Complaint: A mentally ill patient attacked Plaintiff, and the
patient was believed to be under the influence of hallucinogenic drugs. DE 1 (Complaint), ¶ 21.
According to Plaintiff, it took at least nine other staff members to restrain the patient. Id. ¶ 23.
Shortly after this altercation, Plaintiff began experiencing a variety of symptoms associated with

1

The facts stated herein are derived from Plaintiff’s Complaint, DE 1, Defendant’s Statement of Undisputed Facts,
DE 28, and Plaintiff’s Statement of Disputed Facts in Opposition to Defendant’s Statement, DE 35, and all of the
exhibits cited therein. Where the parties’ facts diverge, their different accounts of the facts giving rise to this lawsuit
are noted. In addition, to the extent the Court cites facts in the record that were not cited by the parties, those facts
have been included here for background informational purposes only. The Court has only considered cited facts
when addressing the substance of the Motion, unless explicitly noted. See FED. R. CIV. P. 56(c)(3) (“The Court need
consider only the cited materials.”).
2
The Court uses the pagination provided by the CMECF system as a header at the top of the page on filings, which
occasionally differs from the pagination provided by the parties at the bottom of the page.

2

post-traumatic stress disorder (PTSD). Id. ¶¶ 24–25. Plaintiff sought treatment and was
diagnosed with PTSD. Id. ¶ 26. Plaintiff was then placed on “restricted duty” in November, 2015
and relieved of his weapon. DE 28 (Defendant’s Facts), ¶¶ 10–11. Restricted duty involved
answering the phones, interfacing with the public, and writing reports from the office. See DE
27-2 (Salem Deposition), p. 70, lines 18-24; DE 35-1 (Bolduc Deposition), p. 112, lines 19-24.
A. Plaintiff’s FDLE Certification
Defendant informed Plaintiff on March 28, 2016, that his Florida Department of Law
Enforcement (FDLE) certification would lapse on July 1, 2018 unless he completed necessary
retraining. DE 28 (Defendant’s Facts), ¶ 19. Plaintiff’s Restricted Duty Assignment notice
prohibited Plaintiff from “work[ing] overtime, extra duty, [and] attend[ing] any training.” DE
27-2 (Restricted Duty Assignment Memorandum), p. 167; see also DE 35 (Plaintiff’s Facts), ¶
35. 3 Plaintiff did complete many hours of training that did not require the use of a firearm while
on restricted duty. See DE 1 (Complaint), ¶ 34; DE 35-1 (Bolduc Deposition), p. 128. Plaintiff
did not complete the firearms retraining required to maintain his FDLE certification. See DE 28
(Defendant’s Facts), ¶¶ 13–14, 20.
The parties disagree about why the firearms retraining was not completed: Plaintiff
asserts that he was “expressly prohibited” from attending the necessary retraining sessions by
Defendant. DE 35 (Plaintiff’s Facts), ¶ 35. 4 However, Defendant maintains that the retraining
could not be completed because Plaintiff had been relieved of his weapon on his doctor’s order.
3

In this paragraph, Plaintiff makes multiple assertions. Most significantly, Plaintiff asserts that “Defendant would
not provide Plaintiff with any assistance of accommodations in scheduling alternative training if Plaintiff could not
attend the scheduled sessions.” DE 35, ¶ 35. The Court notes that this paragraph is not properly supported by a
record citation. See FED. R. CIV. P. 56(c)(1); Local Rule 56.1(a)(2). Instead, Plaintiff refers back to paragraphs 29–
31 of his Complaint, which Defendant admitted in part and denied in part. See DE 35, ¶ 35; DE 1, ¶¶ 29–31; DE 17,
¶¶ 29–31. Specifically, Defendant denied the allegation that “Defendant would not provide Plaintiff with any
assistance or accommodations in scheduling alternative training.” See DE 1, ¶ 31; DE 17, ¶ 31. Because Defendant
denied this assertion, paragraph 35 of Plaintiff’s Additional Facts, DE 35, is not appropriately supported by a record
citation.
4
This paragraph is not properly supported by a record citation. See supra fn. 3.

3

See DE 28 (Defendant’s Facts) ¶¶ 11, 12–13, 20; see also DE 35-1 (Bolduc Deposition), p. 139,
lines 15–18; id. at 138, lines 19-23 (“His doctor wouldn’t clear him for use of force training, and
that, ultimately, resulted in his de-certification.”). The same was confirmed by Lieutenant DiMeo
by affidavit. DE 27-3, p. 4. Plaintiff states as an additional fact that Chief Bolduc admitted that
“the prohibition on attending training while on Restricted Duty should not have been included in
the memorandum to Plaintiff dated March 28, 2016.” DE 35 (Plaintiff’s facts), ¶ 36 (citing
Bolduc’s deposition, p. 124–25). However, shortly after Chief Bolduc’s statement regarding the
March 28 Memorandum, he asserted that the Department was willing to work with Plaintiff to do
what was necessary to maintain his certification. Id. at 129, lines 15–24; id. at 152, line 13 (“We
were searching for an accommodation.”).
B. Plaintiff’s Probationary Status
On May 9, 2016, Plaintiff was informed by Defendant that his probationary period of
employment would be extended an additional six months. DE 28 (Defendant’s Facts), ¶ 15; DE
27-2 (Extension of Probation Memorandum), p. 169. Plaintiff’s initial probationary period in
Defendant’s employ was scheduled to expire on June 5, 2016. DE 28 (Defendant’s Facts), ¶ 12.
The Extension of Probation Memorandum explained that the extension was to “provide time to
evaluate your performance as a solo road patrol officer once you are no longer on Restricted
Duty.” DE 27-2 (Extension of Probation Memorandum), p. 169.
C. Plaintiff’s FMLA Leave
In June 2016, Plaintiff requested twelve weeks of leave to care for his newborn son under
the FMLA. DE 28 (Defendant’s Facts), ¶ 16. Plaintiff’s request was granted, id. ¶ 17, and
Plaintiff began his FMLA leave on June 13, 2016, id. ¶ 20.

4

D. Plaintiff’s Termination
On July 5, 2016, while on parental leave covered by the FMLA, Plaintiff was ordered to
report to a meeting with Chief Bolduc. Id. ¶ 23. Plaintiff was terminated at the meeting. Id.; see
also DE 27-2 (End of Probationary Employment Memorandum), p. 170.

The End of

Probationary Employment Memorandum explained that “[a]s of July 1, 2016, your certification
as a police officer expired for Failure to Meet Mandatory Retraining Requirements. You no
longer meet the essential requirements for the position of police officer[.]” Id.
II.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The existence of a factual dispute is not by itself sufficient grounds to defeat a motion for
summary judgment; rather, “the requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A dispute is genuine if “a
reasonable trier of fact could return judgment for the non-moving party.” Miccosukee Tribe of
Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008) (citing Anderson, 477 U.S.
at 247-48). A fact is material if “it would affect the outcome of the suit under the governing
law.” Id. (citing Anderson, 477 U.S. at 247-48)
In deciding a summary judgment motion, the Court views the facts in the light most
favorable to the non-moving party and draws all reasonable inferences in that party’s favor.
See Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). The Court does not weigh conflicting
evidence. See Skop v. City of Atlanta, 485 F.3d 1130, 1140 (11th Cir. 2007). Thus, upon
discovering a genuine dispute of material fact, the Court must deny summary judgment. See id.
The moving party bears the initial burden of showing the absence of a genuine dispute of

5

material fact. See Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). Once the moving
party satisfies this burden, “the nonmoving party ‘must do more than simply show that there is
some metaphysical doubt as to the material facts.’”

Ray v. Equifax Info. Servs., LLC,

327 F. App’x 819, 825 (11th Cir. 2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986)).

Instead, “[t]he non-moving party must make a

sufficient showing on each essential element of the case for which he has the burden of proof.”
Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Accordingly, the non-moving
party must produce evidence, going beyond the pleadings, to show that a reasonable jury could
find in favor of that party. See Shiver, 549 F.3d at 1343.
III.

ANALYSIS

A. Count I: Plaintiff’s ADA Claims
The Americans with Disabilities Act (ADA) prohibits a covered employer from
discriminating against “a qualified individual on the basis of 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).
A plaintiff advancing a claim of employment discrimination under the ADA must
make a prima facie case establishing that (1) he has a disability, (2) he is a
“qualified individual,” which is to say, able to perform the essential functions of
the employment position that he holds or seeks with or without reasonable
accommodation, and (3) the defendant unlawfully discriminated against him
because of the disability.
Reed v. Heil Co., 206 F.3d 1055, 1061 (11th Cir. 2000).
The ADA defines a “qualified individual with a disability” as an “individual with a
disability who, with or without reasonable accommodation, can perform the essential functions
of the employment position that such individual holds or desires.” 43 U.S.C. § 12111(8).
6

If the plaintiff claims that his disability could have been reasonably accommodated,
“[t]he plaintiff bears the burden of identifying an accommodation, and of demonstrating that the
accommodation allows him to perform the job’s essential functions.” Lucas v. W.W. Grainger,
Inc., 257 F.3d 1249, 1255–56 (11th Cir. 2001) (citing Stewart v. Happy Herman’s Cheshire
Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir.1997)); see also Gaston v. Bellingrath Gardens &
Home, Inc., 167 F.3d 1361, 1363–64 (11th Cir. 1999) (“[T]he duty to provide a reasonable
accommodation is not triggered unless a specific demand for an accommodation has been
made.”). If the plaintiff does not identify an accommodation that is reasonable, “the employer
has no affirmative duty to show undue hardship.” Frazier-White v. Gee, 818 F.3d 1249, 1255–56
(11th Cir. 2016). Furthermore, the plaintiff’s request for an accommodation must be “specific.”
Id. (citing Gaston, 167 F.3d at 1363–64 (11th Cir. 1999)).
Plaintiff alleges in his Complaint that he has a disability, that he was qualified for the job
of police officer, and that he was unlawfully discriminated against on the basis of his disability.
DE 1 (Complaint), ¶ 69–72. Plaintiff alleges he was discriminated against on the basis of his
disability in the extension of his probationary period, in Defendant’s failure to provide a
reasonable accommodation for retraining to maintain his FDLE certification, and in his ultimate
termination. Id.
Defendant argues in its Motion for Summary Judgment that Plaintiff was terminated
solely because of his inability to maintain his FDLE certification, as required by Florida state
law 5 and that no accommodation was possible. DE 27, p. 5. Plaintiff counters that his inability to
5

In Florida, police officers are required to participate in ongoing training throughout their employment. See FLA.
STAT. § 943.135 (2010). Specifically, officers are required to complete forty hours of training every four years. FLA.
STAT. § 943.135(a). In addition, officers must maintain a firearms certification, which is reassessed by the state’s
law enforcement agency, Florida Department of Law Enforcement (FDLE) every two years. FLA. ADMIN. CODE r.
11B-27.00212(14) (2018). Officers who do not demonstrate proficient skills on the firearm qualification assessment,
“shall not perform the duties of a sworn officer” and the certifications of officers who fail to meet the appropriate
standards of firearm qualification become inactive if the appropriate document is not provided to FDLE by June 30

7

maintain his FDLE certification was caused by Defendant in failing to secure an exemption,
waiver, or variance on his behalf. DE 34, p. 8–11; see also DE 35 (Plaintiff’s Facts), ¶ 35. 6
The Court agrees with Defendant that Plaintiff has not established a prima facie case of
ADA discrimination, because Plaintiff has not produced evidence that he made a “specific”
request for an accommodation of his disability. 7 Plaintiff points to state laws and regulations that
would have enabled Plaintiff to seek an exemption, variance, or waiver from the FDLE
certification requirements. 8 DE 34, p. 12–18; DE 35, ¶ 39. Yet Plaintiff cites to no evidence in
his Statement of Disputed Facts for the proposition that he made a request for an accommodation
in the form of an exemption, variance, or waiver from retraining. Plaintiff was required to cite to
evidence pursuant to Federal Rule 56, 9 the Local Rules of this District,10 the prior orders of this
Court, 11 and case law in this Circuit. E.g., Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir.
2008) (“[J]udges are not like pigs, hunting for truffles” and the purpose of requiring parties to
cite to specific evidence is so the “parties organize the evidence rather than leaving the burden
upon the district judge.”) (citations omitted). Plaintiff has not met his evidentiary burden to show
that he made a specific request for an accommodation as the ADA requires, see Frazier-White,
818 F.3d at 1255–56, and Defendant’s Motion for Summary Judgment is granted on this basis.
In the alternative, even if this Court were to exercise its discretion to comb through the
of the reporting year. FLA. ADMIN. CODE r. 11B-27.00212(14)(a–c).
6
This paragraph is not properly supported by a record citation. See supra fn. 3.
7
Plaintiff’s failure to point to a specific request for an accommodation extends to all of the grounds upon which he
claims discrimination under the ADA.
8
First, the administrative code permits the agency administrator to apply for an Injury or Illness Exemption from
police retraining requirements. FLA. ADMIN. CODE r. 11B-27.00212(14)(e) (“In the event a law enforcement officer
is injured in the line of duty or has a chronic illness and fails to meet this standard by June 30 of a reporting years,
the agency administrator or designee shall complete the Injury of Illness Exemption for the Firearms Law
Enforcement Officer Qualification Standard form CJSTC-86B.”). In addition, Florida law provides a general
procedure for seeking a waiver or variance from any rule. See FLA. STAT. § 120.542(2) (2010) (“Variances and
waivers shall be granted when . . . application of a rule would create a substantial hardship or would violate
principles of fairness.”).
9
FED. R. CIV. P. 56(c)(3) “The Court need consider only the cited materials.”
10
A fact must be supported by “citing to particular parts of materials in the record.” Local Rule 56(c)(1).
11
Material facts “shall be supported by a specific citation.” DE 6 at 9.

8

record for evidence that supports Plaintiff’s position, the Court has located only the following
exchange:
Q. Did you ever ask about obtaining an exemption from your firearms training?
A. (Plaintiff) I don’t know that I would call it an “exemption.” I believe I asked
why I couldn’t just do it once I was released from light duty.
DE 27-2 (Salem Deposition), p. 92, lines 21-25. Any reference to a date, time, or place is notably
absent from this exchange, so it is impossible for the Court to ascertain whether this request
might have been timely made. Even so, this single statement is so vague that it does not
constitute a “specific” request for an accommodation.
Finally, the Court notes that Plaintiff’s own allegations in his Complaint are insufficient
under the ADA. Plaintiff alleges that at the July 5, 2016 meeting, when Plaintiff was ultimately
terminated, Plaintiff “inquired as to the accommodations made for officers who are injured or
pregnant during the time period preceding their retraining deadline.” DE 1, ¶ 49. Assuming this
statement is true (though it is denied by Defendant, DE 17, ¶ 49), it is insufficient to demonstrate
Plaintiff made the appropriate request for an accommodation and demonstrated that the
accommodation requested was reasonable 12 because the request was too late—by July 5th,
Plaintiff’s FDLE certification had already lapsed. Because Plaintiff’s certification had lapsed,
Plaintiff does not dispute 13 that the FDLE informed Defendant that an extension, waiver, or
accommodation was impossible.

Compare DE 28 (Defendant’s Facts) at 3–4 with DE 35

(Plaintiff’s Facts) at 4.
For the foregoing reasons, the Court concludes that Plaintiff has not established his prima
12

See Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255–56 (11th Cir. 2001).
Plaintiff states that he “does not dispute that Defendant purports that the telephone conference . . . occurred.” If
this statement by Plaintiff was intended to convey to the Court that he does not dispute Defendant’s Statement of
Facts, DE 28, paragraph 22, the Court accepts Defendant’s paragraph 22 as undisputed. If this statement by Plaintiff
was intended to convey to the Court that Plaintiff disputes Defendant’s paragraph 22 then the Court deems
paragraph 22 to be admitted, because Plaintiff has cited no evidence in support of his dispute. See Local Rule 56.
13

9

facie case of an ADA violation, because Plaintiff has not set forth evidence that Plaintiff made a
specific request for an accommodation of his disability. The Motion for Summary Judgment is
therefore granted in favor of Defendant as to all ADA-violation claims in Count I.
B. Count III: Plaintiff’s FMLA Claims
“There are two claims under the FMLA: interference and retaliation. A retaliation claim
asserts that an employer discriminated against an employee for engaging in FMLA protected
activity, while an interference claim asserts than an employer interfered with an employee’s
exercise of FMLA rights.” Pecora v. ADP, LLC., 232 F. Supp. 3d 1213, 1220 (M.D. Fla. 2017).
Plaintiff’s Complaint alleges both claims in Count III. DE 1 (Complaint), ¶ 89.
1. Plaintiff’s Interference Claim
To establish an interference claim under the FMLA, a plaintiff must show by a
preponderance of the evidence that the employee was denied a benefit to which he or she was
entitled to under the FMLA. See Pereda v. Brookdale Senior Living Communities, Inc., 666 F.3d
1269, 1274 (11th Cir. 2012). It is undisputed that Plaintiff was granted his request to take FMLA
leave at the birth of his son. DE 28 (Defendant’s Facts), ¶ 16–18. However, Plaintiff argues that
when Defendant ordered him to report to Chief Bolduc’s office for a meeting on July 5, 2016,
Defendant interfered with Plaintiff’s FMLA leave, which had begun in June. DE 1 (Complaint),
¶ 89; DE 28 (Defendant’s Statement of Facts), ¶ 23.
The FMLA does not provide clear guidance as to how much of an interference with
FMLA leave is actionable. See Antekeier v. Lab. Corp. Am., 295 F. Supp. 3d 679, 684 (E.D. Va.
2018) (“Although, the FMLA provides that an employer may not ‘interfere with . . . the
employee’s exercise of his or her right[s]’ under the FMLA there is no statutory definition or
elucidation in the FMLA as to what constitutes interference. 29 U.S.C. § 2615(a)(1).”). In

10

addition, there have been very few cases to directly consider this question. See id. (“[T]here is no
statutory guidance and little decisional law on the issue.”). However, it is clear that not all
communications between the employer and employee during FMLA leave rise to the level of a
violation of the FMLA. In Antekeier, the district court considered whether a number of phone
calls and emails between an employer and an employee, and among the employee’s colleagues,
while the employee was on FMLA leave, constituted a violation of the statute. See id. at 681–85.
The court concluded that the contacts to the on-leave employee were either de minimis, or
unrelated to work, and therefore granted summary judgment in the defendant’s favor. See id. at
687.
Here, the Court finds that the meeting with Chief Bolduc, standing alone, is similarly
insufficient to constitute an interference with Plaintiff’s FMLA leave. The meeting was unrelated
to work, did not require Plaintiff to act as a police officer in any capacity, and amounted to only
a conversation. Accordingly, Plaintiff has not established a prima facie case for an FMLA
interference claim, and Defendant’s Motion for Summary Judgment as to Plaintiff’s claim of
FMLA interference, based on Plaintiff’s required presence at the July 5, 2018 meeting, is granted
in favor of Defendant.
2. Plaintiff’s Retaliation Claim
To establish a retaliation claim under the FMLA when there is no direct evidence of
retaliatory intent, a plaintiff must show that “(1) []he engaged in a statutorily protected activity;
(2) []he suffered an adverse employment decision; and (3) the decision was causally related to a
protected activity.” Pereda, 666 F.3d at 1275 (citations omitted); see also Vira v. Crowley Liner
Serv., Inc., 723 F. App’x 888, 892–93 (11th Cir. 2018). 14 To prove a causal connection, a

14

The Court acknowledges this case is unpublished. The Court accordingly does not rely exclusively on this case,
but cites the case where appropriate to further elucidate FMLA law in the Eleventh Circuit, given that the case was

11

plaintiff must demonstrate that the “relevant decisionmaker was ‘aware of the protected conduct,
and that the protected activity and the adverse actions were not wholly unrelated.’” Jones v. Gulf
Coast Health Care of Del., LLC., 854 F.3d 1261, 1271 (11th Cir. 2017) (citations omitted).
“Close temporal proximity between protected conduct and an adverse employment action is
generally sufficient circumstantial evidence to create a genuine issue of material fact of a causal
connection.” Id. at 1271–72. However, “in a retaliation case, when an employer contemplates an
adverse employment action before an employee engages in protected activity, temporal
proximity between the protected activity and the subsequent adverse employment action does not
suffice to show causation.” Drago v. Jenn, 453 F.3d 1301, 1308 (2006).
Once the plaintiff establishes a prima facie case for FMLA retaliation, the burden shifts
to the defendant to show a legitimate reason for the adverse employment action. See Strickland v.
Water Works & Sewer Bd., 239 F.3d 1199, 1207 (11th Cir.2001) (applying the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) to an FMLA claim).
Defendant must put forth a “legitimate, non-retaliatory reason for terminating” the employee.
Martin v. Brevard Cty. Pub. Schools, 543 F.3d 1261, 1268 (emphasis added); see also Hurlbert
v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th 2006) (“If the plaintiff makes
out a prima facie case, the burden then shifts to the defendant to articulate a legitimate reason for
the adverse action.”) (emphasis added).
If the defendant proffers a legitimate reason for its actions, the burden shifts back to the
plaintiff demonstrate that the proffered reason for the employment action was pretext for
retaliation. Martin, 543 F.3d at 1268; see also Vira, 723 F. App’x at 892. To show pretext,
“plaintiff must show both that the employer’s explanation was false and that discrimination was
the real reason for his decision.” Vira, 723 F. App’x 888, 894 (citing Brooks v. Cty. Comm’n of
so recently considered.

12

Jefferson Cty., Ala., 446 F.3d 1160, 1163 (11th Cir. 2006)).
Here, Plaintiff asserts he was terminated in retaliation for taking parental leave at the
birth of his son. DE 34, p. 18–19. Plaintiff vigorously argues that the “close temporal proximity”
between Plaintiff’s parental leave and his termination is evidence of the causal connection
required between the adverse employment action and his engagement in the protected activity
(parental leave). Id. at 15. Defendant argues in response that the City would have terminated
Plaintiff regardless of his election to use parental leave because of his lapsed FDLE certification.
DE 27, p. 9–11. Plaintiff replies that this rationale is pretextual, because there is a dispute about
whether Plaintiff’s FDLE certification could have been maintained. DE 34, p. 18. Plaintiff
admits that he was not warned, threatened, or discouraged from taking FMLA leave. DE 28, ¶
18.
First, the Court finds that Plaintiff has not met the causality requirement of the prima
facie case for FMLA retaliation. It is undisputed that Defendant informed Plaintiff “via a
memorandum dated March 28, 2016, that his FDLE certification would lapse on July 1, 2016.”
DE 28 (Defendant’s Facts), ¶ 19. State law requires police officers to maintain their certification,
and prohibits police departments from employing non-certified individuals as police officers.
FLA. STAT. § 943.135 (2010). Given this state law and the Memorandum sent to Plaintiff, it is
clear that Defendant contemplated the possibility of the adverse employment action months
before Plaintiff requested FMLA leave in June, see DE 28 (Defendant’s Facts), ¶ 16. Plaintiff has
not put forth other evidence, beyond temporal proximity, to establish the causality prong of the
prima facie case. Plaintiff’s FMLA-retaliation claim therefore fails under Drago, 453 F.3d at
1308.
Even if the Court assumes arguendo that Plaintiff did meet his burden of establishing a

13

prima facie case for FMLA retaliation, Defendant has met its burden of producing a nonretaliatory explanation for Plaintiff’s termination, but Plaintiff has not met his burden of showing
pretext. See Fong v. School Bd. of Palm Beach County, 590 F. App’x 930, 934, n.7 (11th Cir.
2014) (“We have regularly assumed the establishment of a prima facie case where a plaintiff's
claim of discrimination nevertheless failed at the pretext prong of the McDonnell Douglas test.”).
The Court finds that Defendant has met its burden of proffering a “legitimate, non-retaliatory”
reason for Plaintiff’s termination, namely, that Plaintiff failed to maintain his FDLE certification,
rendering him unable to serve as a sworn police officer. DE 40, p. 7. Plaintiff was advised in
March, 2016 that his FDLE certification would lapse at the end of June. DE 28 (Defendant’s
Facts), ¶ 11–19. In addition, the End of Probationary Employment Memorandum explicitly states
that the reason for Plaintiff’s termination was his failure to maintain his FDLE certification. DE
28 (Defendant’s Facts), ¶ 15; DE 27-2 (End of Probationary Employment Memorandum), p. 170.
Based on state law requiring all police officers to maintain their FDLE certification, FLA. STAT. §
943.135 (2010), Defendant has met its burden of proffering a legitimate and non-retaliatory
reason for Plaintiff’s termination.
Because Defendant has met its burden of raising a “legitimate, non-retaliatory reason for
terminating” Plaintiff, Martin, 543 F.3d at 1268, it is Plaintiff’s burden to show that this reason
was pretextual for his termination. Plaintiff has not put forth any such evidence, but instead
insists that the temporal proximity of the FMLA leave and termination establish a causal
connection. DE 34, p. 19. This argument goes to establishing the prima facie case, but is
insufficient to establish pretext. Hurlbert, 439 F.3d at 1298 (“The close temporal proximity
between Hulbert’s request for leave and his termination . . . is evidence of pretext, though
probably insufficient to establish pretext by itself.”); Wascura v. City of S. Miami, 257 F.3d

14

1238, 1244–45 (11th Cir. 2001).
The Court finds no other evidence in the record to suggest that Defendant’s proffered
explanation for firing Plaintiff was a pretext for retaliation against Plaintiff for taking FMLA
leave. Nor has Plaintiff cited to any such evidence. Thus, Plaintiff has not met his burden of
demonstrating that the certification explanation proffered by Defendant was pretextual. Cf.
Wascura, 257 F.3d at 1248 (11th Cir. 20010 (“[W]e conclude that [Plaintiff] failed to present
evidence from which a reasonable jury could find any causal connection between [Plaintiff’s
notice of FMLA leave] and her subsequent termination. . . . [Defendant] adduced evidence of
legitimate reasons for its termination action unrelated to [Plaintiff’s notice of FMLA leave] and
[Plaintiff] failed to create a genuine issue of fact with respect to any causal connection between
her notice to [her employer] of her potential need to take time off . . . and her termination. Aside
from the temporal proximity, [Plaintiff] introduced virtually no evidence of a causal
connection.”).
To summarize, Plaintiff has not established a prima facie case of either FMLA
interference or FMLA retaliation. Plaintiff’s FMLA-retaliation claim also fails under the
McDonald Douglas burden shifting framework. Therefore, Defendant’s Motion for Summary
Judgment is granted in favor of Defendant as to all FMLA claims included in Count III of the
Complaint.
C. Count V: Plaintiff’s Breach of Contract Claims
In his final claim, Plaintiff alleges that Defendant breached the Collective Bargaining
Agreement, first, by improperly extending Plaintiff’s probationary period, and second, by failing
to classify Plaintiff’s termination as a “medical” termination. Defendant seeks summary
judgment on both claims.

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1. The Probation Extension
Plaintiff argues that his contract should not have been extended for six months, because
the Collective Bargaining Agreement only permits probation extensions of ninety days. DE 34
(Plaintiff’s Response), p. 16; see also DE 27-1 (Collective Bargaining Agreement) (“Probation
may be extended up to a maximum of 90 days at the discretion of the Chief of Police or his
designee.”). Defendant in turn asserts Plaintiff was not a party to the contract. In the alternative,
Defendant argues that even if Plaintiff was a party to the contract and his probation extension
was invalid, Plaintiff has not provided facts to support damages, given that Plaintiff was
ultimately terminated before a permissible extension of ninety days would have expired.
“The elements of a breach of contract action are (1) a valid contract; (2) a material
breach; and (3) damages.” Beck v. Lazard Freres & Co., LLC, 175 F.3d 913, 913 (11th Cir.
1999) (citing Abruzzo v. Haller, 603 So. 2d 1338, 1340 (Fla. 1st DCA 1992)). The Court
assumes, without deciding, that the first two elements of a breach of contract claim have been
met, however, Defendant has demonstrated that there is no evidence as to the third element — a
showing of damages.
There is undisputed evidence that Plaintiff’s initial probationary period was scheduled to
end on June 5, 2016. DE 28 (Defendant’s Facts), ¶15; DE 27-2 (Extension of Probation
Memorandum), p. 169. If Defendant had properly extended Plaintiff’s probationary period by
only ninety days, as contemplated by the Collective Bargaining Agreement, DE 27-1, p. 51,
Plaintiff’s probationary period could have been extended through roughly September 4, 2016.
Plaintiff was terminated on July 5, 2016. DE 27-2 (End of Probationary Employment
Memorandum), p. 170. Thus, if there was a breach of the contract, the breach amounts to an error
in paperwork. The breach did not lead to any damages for Plaintiff, and Plaintiff has not rebutted

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this argument on damages in his Response to Defendant’s Motion for Summary Judgment. DE
34. Because there is no record evidence that the extension of the probationary period caused
Plaintiff any damages, Defendant is entitled to summary judgment on this aspect of Plaintiff’s
breach of contract claim.
2. The Failure to Designate Termination as a Medical Termination
In his Complaint, Plaintiff also alleges a breach of contract in Defendant’s failure to
classify his termination as a medical termination: “Upon information and belief, Defendant
intentionally misclassified Plaintiff’s termination as non-medical for the purpose of depriving
Plaintiff of earned disability pension benefits.” DE 1 (Complaint), ¶ 58. Defendant responds in
its Motion for Summary Judgement that Defendant did instruct Plaintiff to speak with Human
Resources regarding any benefits. DE 27 (Defendant’s Motion for Summary Judgment), p. 14;
see also DE 27-2 (Extension of Probation Memorandum), p. 169 (“[Y]ou may contact the City’s
Human Resources Department at 344-4345 to make arrangements to retrieve your final paycheck
and discuss your City Benefits.”). Plaintiff cites no law, regulation, or contract clause to suggest
that Defendant was required by the CBA to classify Plaintiff’s termination as a medical
termination. Thus, Plaintiff has not met its burden of demonstrating the legal basis for this claim,
and Defendant is entitled to summary judgment on Plaintiff’s claim for breach of contract based
on Defendant’s alleged failure to classify Plaintiff’s termination as a medical termination.
IV.

CONCLUSION

For the reasons stated herein, the Court hereby GRANTS Defendant’s Motion for
Summary Judgment, DE 27, in favor of Defendant on Plaintiff’s claims for ADA violations in
Count I, claims for FMLA violations in Count III, and breach of contract claims in Count V.

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For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:
1. Defendant’s Motion for Final Summary Judgment [DE 27] is GRANTED.
2. Because there are no remaining claims in this case, the Clerk of the Court is ordered
to CLOSE this case.
3. Defendant is ORDERED to submit a proposed Final Judgment Order to the Court’s
email address ([e-mail]) within two days of the rendition of this
Order.
DONE AND ORDERED in Chambers, West Palm Beach, Florida, this 30th day of
October, 2018.

_______________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE
Copies furnished to Counsel of Record

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