Mcguire v. United Parcel Service, Inc.

MOTION for summary judgment and Incorporated Memorandum of Law

M.D. Fla.May 4, 2017

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION CASE NO.: 8:15-cv-02792-SCB-JSS WORTHY MCGUIRE, Plaintiff, v. UNITED PARCEL SERVICE, INC., a foreign corporation, Defendant. _____________________________/ DEFENDANT UNITED PARCEL SERVICE, INC.’S REDACTED1 MOTION FOR SUMMARY JUDGMENT AND INCORPORATED MEMORANDUM OF LAW Respectfully submitted this 4th day of May, 2017. Counsel for Defendant UPS HOLLAND & KNIGHT LLP By: /s/Christine F. Gay KELLY-ANN G. CARTWRIGHT Florida Bar No. 892912 email: kelly-ann.cartwright@hklaw.com ERIKA R. ROYAL Florida Bar No. 0154385 email: erika.royal@hklaw.com CHRISTINE F. GAY Florida Bar No. 026009 email: christine.gay@hklaw.com 701 Brickell Avenue, Suite 3300 Miami, Florida 33131 305-374-8500 905-789-7799 (fax) 1 Defendant’s Motion for Summary Judgment, and Declarations and Depositions in support of same, were each filed under seal on May 1, 2017. See Doc. # 51, 52, 53. Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 1 of 37 PageID 696 2 #51127300_v1 Defendant United Parcel Service, Inc. (“UPS”), pursuant to Rule 56, Fed. R. Civ. P., moves for Summary Judgment in its favor as to all claims made by Plaintiff Worthy McGuire (“Plaintiff”), on the grounds that there are no genuine issues of material fact and that UPS is entitled to a judgment as a matter of law. I. INTRODUCTION After two injuries that rendered him physically unable to continue as a full time package car driver for UPS, Plaintiff returned to work, sought and received a reasonable accommodation under the ADA. Yet, Plaintiff’s lawsuit disingenuously claims that UPS only perceived him as disabled, and that he was able to be and should have been returned to a package car delivery driver job. Further, Plaintiff’s ADA and FCRA disability discrimination claims are nonsensical because, on one hand, he claims that UPS only “perceived” him as disabled, and on the other, he alleges that UPS failed to provide him with a reasonable accommodation for his disability. Plaintiff’s claim that UPS perceived him as disabled and failed to reasonably accommodate him is belied by the undisputed facts.2 The record establishes that Plaintiff returned to work unable to drive; he told UPS he was not able to drive or return to the package car driver position and, at Plaintiff’s request, his doctor confirmed his inability to drive in the package car driver position. After Plaintiff twice requested an ADA accommodation, UPS approved his request. UPS, Plaintiff and the Teamsters Union then entered into an agreement that Plaintiff’s union business representative described as a reasonable accommodation. Plaintiff is unhappy because he did not receive his 2 Plaintiff conducted no discovery whatsoever in this case, other than to ask questions at depositions scheduled by UPS. At his deposition, Plaintiff repeatedly offered unsubstantiated testimony regarding his claims that he was discriminated against based on both is disability and his race. Plaintiff’s “evidence” consists of nothing more than his own opinions and conjecture. Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 2 of 37 PageID 697 3 #51127300_v1 preferred accommodation – a full time, “inside” job at UPS. UPS, however, was not required to violate the seniority rights of other employees to provide Plaintiff with the accommodation of his choice. Nor was UPS required to create a job to accommodate Plaintiff. UPS provided Plaintiff with a reasonable accommodation and his disability discrimination claims are without merit. Additionally, Plaintiff was not subject to discrimination based on his race. As explained below, Plaintiff's claims fail as a matter of law. II. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits show "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 plain language of Rule 56(c) [now Rule 56(a)] mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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 Corp. v. Catrett, 477 U.S. 317, 322 (1986) (emphasis added). At this stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. Scott v. Harris, 550 U.S. 372, 380 (2007). Thus, Plaintiff is not excused from presenting evidence to support the essential elements of his claims in opposing UPS’s motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Instead, Plaintiff must come forward with ”specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. at 323-324 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Conclusory allegations or evidence setting forth legal conclusions are insufficient.” Post v. City of Ft. Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993). Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 3 of 37 PageID 698 4 #51127300_v1 Here, Plaintiff cannot, as a matter of law, establish that UPS discriminated against him based on any real or perceived disability, nor was he subjected to discrimination based on his race. Accordingly, UPS is entitled to summary judgment on all of Plaintiff’s claims. III. BACKGROUND A. Plaintiff’s employment at UPS Plaintiff began working for UPS as a preloader in UPS’s Pinellas Hub in Clearwater, Florida in September 1996. [Pl. at 17:14-22].3 When he started working at UPS, Plaintiff was a part-time employee working mornings. [Pl. at 18:1-6]. During his employment with UPS, Plaintiff worked in UPS’s St. Petersburg and Largo centers. [Pl. at 26:18 –27:14]. Sometime after 2000, Plaintiff became a UPS package car driver. [Pl. at 22, ln. 2-5]. Specifically, Plaintiff worked as a “swing driver” covering for UPS package car drivers. [Pl. at 28:1-2]. The package car driver position is physically demanding and requires a great deal of lifting. [Pl. at 26:7-11]. UPS teaches its employees to safely operate the package cars. [Pl. at 25:22–26:6]. When he became a package car driver, Plaintiff received training from UPS on “habits” and safety training. [Pl. at 24:1-18]. He also received “methods training” on how to handle packages on the package car. [Pl. at 25:7-9]. B. The Collective Bargaining Agreement between UPS and the Teamsters Union Plaintiff is a member of the Teamsters Union. [Pl. at 23:17-21; Rothman at 12:14-16]. Plaintiff’s employment is governed by the Collective Bargaining Agreement between UPS and the Teamsters Union (“CBA”). [Rothman at 13:21-25]. Pursuant to the CBA, an employee may file 3 Under separate cover, UPS has filed the transcripts of Plaintiff's and other witness depositions and accompanying exhibits, as well as several declarations in support of its Motion for Summary Judgment. Citations to these documents appear throughout this Motion as “Deponent at page:line” or “Deponent at Ex.” and “Declarant at ¶.” Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 4 of 37 PageID 699 5 #51127300_v1 a grievance related to any interpretation, application or observance of any provision of the CBA. [Calder at ¶ 5]. The CBA contains language that addresses accommodations under the Americans with Disabilities Act for permanently disabled employees. [Rothman at 18:3-9]. Pursuant to the terms of the CBA, before UPS can provide a reasonable accommodation to a qualified bargaining unit employee like Plaintiff, it is required to negotiate with the Union. [Calder at ¶ 7]. The CBA also allows that, if a full-time employee cannot be reasonably accommodated in a full-time job, UPS may offer a part-time job as a reasonable accommodation if the employee is qualified and meets the essential functions of the job. [Calder at ¶ 7]. Under the express terms of the CBA, if the employee accepts the part-time accommodation, the employee will be placed into the applicable part-time health & welfare and pension programs and will be paid the appropriate part- time rate for the job performed based on his company seniority. [Calder at ¶7]. C. Plaintiff’s work-related injuries and workers’ compensation claims Plaintiff suffered his first work-related injury to his shoulder and hand in March 2010. [Pl. at 28:8–29:4]. Plaintiff’s supervisor, Terry Holland, came out to the location of Plaintiff’s injury and took Plaintiff to the hospital. [Pl. at 29:17–31:3]. Plaintiff was treated and released the same day. [Pl. at 31:4-8]. Plaintiff filed a claim for workers’ compensation benefits with respect to this injury and treated with Dr. Jorge Rodriguez. [Pl. at 31:13-22]. Plaintiff performed some light duty or temporary alternate work (“TAW”) following his injury and then went out on workers’ compensation leave. [Pl. at 32:4–20]. Plaintiff was out on workers’ compensation leave for about a year, during which time he had surgery on his shoulder. [Pl. at 33:21–34:7]. Plaintiff was eventually released by Dr. Rodriguez and returned to work at UPS in his package car driver position. [Pl. at 35:2-10]. Dr. Rodriguez provided Plaintiff with two return to work documents in or about January 2012. While the work status note dated January 19, 2012 Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 5 of 37 PageID 700 6 #51127300_v1 restricted Plaintiff to driving only a truck with power steering due to weakness in Plaintiff’s upper left extremity from surgery, the other note contained no such restriction. [Pl. at Exs. 1-2]. Plaintiff suffered a second injury only weeks after returning to work reinjuring his shoulder. [Pl. at 50:12–21]. Plaintiff reported the injury and his supervisor, Ed White, came out to the scene of the injury and took Plaintiff to the hospital. [Pl. at 51:14–52:12]. Following his second injury, Plaintiff went out of work on workers’ compensation and had another surgery on his shoulder. [Pl. at 62:22–63:7]. He continued to treat with Dr. Rodriguez. [Pl. at 63:8-14]. D. Plaintiff’s return to work in 2013: Plaintiff was released to return to work by Dr. Rodriguez in March 2013. [Pl. at 66:4-5, Exs. 6-8]. On March 14, 2013, Plaintiff underwent a Functional Capacity Evaluation (“FCE”), which was ordered by his physician, Dr. Rodriguez, to determine Plaintiff’s capacity. [Pl. at 72:8- 16, Ex. 10; Rodriguez at p. 23, ln 3-25]. The FCE results indicated that Plaintiff . [Klinger at ¶ 6]. On March 28, 2013, UPS Occupational Health Supervisor, Sharon Klinger, sent Plaintiff a letter informing him that, based on the information provided to UPS in the March FCE, he may be eligible for a job-related accommodation. [Klinger at ¶ 7; Pl. at 105:22–106:9, 111:12-16, Ex. 18]. Klinger also told Plaintiff that if he was interested in requesting an ADA accommodation, he should contact the Human Resource Service Center (“HRSC”). [Klinger at ¶7]. Plaintiff attempted to return to work as a UPS package car driver in April 2013, but was told by UPS management that they could not put him back to work [Pl. at 85:10-21, Ex. 13]. On April 15, 2013, Plaintiff notified UPS that he was not interested in pursuing an ADA accommodation, based on advice he received from his attorney. [Pl. at 112:22–113:10, Ex. 19]. Redacted Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 6 of 37 PageID 701 7 #51127300_v1 Plaintiff also provided his doctor with a note requesting that he be released to return to work full duty with no restrictions “because UPS had an inside warehouse job for him.” [Rodriguez at p. 33:8-17, Ex. 14]. Plaintiff underwent a second FCE on May 6, 2013. [Pl. at Ex. 12]. He was not referred for the second FCE by his doctor – he referred himself. [Rodriguez at 31:3-17]. The results of the second FCE, . [Rodriguez at p. 30:15–31:2, 34:23-35:16; Ex. 15]. On May 15, 2013, Plaintiff’s physician, Dr. Rodriguez, provided, at Plaintiff’s request, a letter that released Plaintiff to return to work “full duty with no restrictions,” but also stated that Plaintiff would be a good candidate for “an inside warehouse position” based on the information in his FCEs. [Pl. at 113:18–114:15, Ex. 20]. According to Rothman, this was because “the ultimate goal was to get [Plaintiff] working in the building, and he could not do package car driver work.” [Rothman at 41:16-22]. Rothman had conversations with UPS management in 2013 regarding the need for Plaintiff to return to work with a full-duty release that permitted him to perform the package car driver job. [Rothman at 34:20-25; 35:23–36:18]. Rothman believed that Plaintiff’s physician-imposed restrictions were the issue with returning him to work. [Rothman at 30:1–31:4]. Rothman recommended that Plaintiff pursue an ADA accommodation because it was the only way that he was going to be able to return to work as anything other than a full-time package car driver. [Rothman at 58:6-17]. E. Plaintiff’s first Request for an ADA Accommodation: The first request Plaintiff made for an ADA accommodation was on June 11, 2013 when Plaintiff called HRSC. HRSC assigned this first request Case No. 715423. [Klinger at ¶ 8; Pl. at 112:8–12]. Upon receipt of Plaintiff’s request, HRSC sent Plaintiff UPS’s Authorization for Redacted Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 7 of 37 PageID 702 8 #51127300_v1 Release of Health Information for Plaintiff to complete, and UPS’s Request for Medical Information form, for Plaintiff’s medical provider to complete. HRSC also enclosed a copy of Plaintiff’s essential job functions. [Klinger at ¶ 9]. On or about July 3, 2013, HRSC received the completed Request for Medical Information from Dr. Jorge Rodriguez, including the May 2013 FCE (“July 2013 Medical Information”). [Klinger at ¶ 10]. Dr. Rodriguez stated, in response to Section B.1., . Id. Dr. Rodriguez also attached a copy of the second FCE, which indicated . [Klinger at ¶ 10; Rodriguez at 38:5–39:14, Ex. 17]. On July 10, 2013, Klinger spoke to Plaintiff on the phone regarding his ADA accommodation request and asked why Plaintiff requested an ADA accommodation when, based on the June 2013 Request for Medical Information and the Second FCE, Plaintiff could perform the essential job functions of the package car driver job. Plaintiff informed Klinger that he had been out of work without pay since February 2013, but his doctor would not clear him to return to work as a package car driver. [Klinger at ¶ 11]. On July 17, 2013, Klinger informed Plaintiff that the medical documents UPS had received from Dr. Rodriguez indicated that he could return to his package car driver position and she referred Plaintiff to Area HR Manager Joe Mineo, and provided him with Mineo’s phone number. [Klinger at ¶ 13]. Also, on or about July 17, 2013, HRSC sent a letter to Plaintiff denying his ADA accommodation request Case No. 715423, because, based on the information received from Dr. Rodriguez, UPS was unable to conclude that Plaintiff was disabled within the meaning of the ADA. HRSC closed the case this same day. [Klinger at ¶ 14]. F. Plaintiff’s Second Request for an ADA Accommodation Redacted Redacted Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 8 of 37 PageID 703 9 #51127300_v1 On July 29, 2013, in response to correspondence from Jan Younger, UPS Risk Management Supervisor, Plaintiff’s physician clarified that he was releasing Plaintiff to return to work in an inside warehouse job and not as a UPS Service Provider (package car driver). [Rodriguez at p. 38:5–39:14, Ex. 17; Klinger at ¶ 15]. On July 30, 2013, Plaintiff called HRSC to, again, request an ADA accommodation. [Klinger at ¶ 16; Pl. at 115:10-13]. Plaintiff’s second ADA request was initiated that same day and assigned HRSC Case No. 751261. [Klinger at ¶ 17]. On July 30, 2013, HRSC sent correspondence to Plaintiff for his new ADA accommodation request, including, again, UPS’s Authorization for Release of Health Information form for Plaintiff to complete, and the Request for Medical Information form for Plaintiff’s medical provider to complete. HRSC again enclosed a copy of the essential job functions of the package car driver job. [Klinger at ¶ 18]. In response to the request for information related to Plaintiff’s accommodation request, his physician completed a Request for Medical Information form for submission to UPS. [Rodriguez at 39:16–40:9; Ex. 18]. This time, Dr. Rodriguez indicated that Plaintiff . [Rodriguez at Ex. 18; Klinger at ¶ 21]. Dr. Rodriguez further indicated that Plaintiff’s [Rodriguez at Ex. 18; Klinger at ¶ 21]. On August 8, 2013, Klinger reviewed the documents received from Dr. Rodriguez and forwarded them to UPS’s legal counsel for review. [Klinger at ¶ 22]. Also on August 8, 2013, Plaintiff called HRSC to check on the status of his case and whether HRSC had received the medical information from Dr. Rodriguez. HRSC informed him that it had been received and HRSC was reviewing it. [Klinger at ¶ 23]. On August 9, 2013, after receiving the completed August 2013 Redacted Redacted Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 9 of 37 PageID 704 10 #51127300_v1 Request for Medical Information, HRSC sent Plaintiff a letter scheduling a “checklist” meeting with Plaintiff on August 13, 2013. [Klinger at ¶ 24]. The checklist meeting is a meeting that UPS conducts with the employee seeking an ADA accommodation, a representative from Human Resources, and Klinger, to we review the information provided from an employee’s medical provider and discuss possible job-related accommodations with the employee. [Klinger at ¶ 25]. On August 13, 2013, Plaintiff attended the ADA checklist meeting with Klinger, Mineo, and Milton Bennett, Human Resources Operations Manager. [Klinger at ¶ 26]. During the meeting, Plaintiff completed the UPS ADA Accommodation Checklist, indicating that [Pl. at 115:21– 116:5, Ex. 21]. In his ADA Checklist paperwork, Plaintiff indicated, among other things, that he . [Pl. at 116:2-18, Ex. 21]. Plaintiff also indicated that no accommodation would permit him to perform his current job of package car delivery driver. [Pl. at Ex. 21, #4]. Plaintiff expressed an interest in several “inside jobs” including, among others, clerk, small sort, spa clerk, and hazmat responder. [Pl. at Ex. 21, #5]. The jobs identified by Plaintiff were all part-time jobs. [Pl. at 120:6–123:16]. Plaintiff indicated that he was able to perform any of these jobs without any accommodation. [Pl. at 123:17–124:3, Ex. 21, #5]. Despite identifying exclusively part time jobs, Plaintiff indicated on the checklist form that he was not willing to consider a part time position. [Pl. at 124:20-125:2, Ex. 21, #8]. He specified that he wanted to work “8 hours with a break.” [Pl. at 125:3-12, Ex. 21, #9]. Plaintiff also indicated that he would not consider a transfer into a nonunion position. [Pl. at 125:13-17, Ex. 21, #10]. Finally, Plaintiff stated that he would not relocate outside the Tampa area. [Klinger at ¶ 27]. Plaintiff also obtained a letter from his doctor stating that Plaintiff would be a good candidate for the inside positions he identified on the ADA checklist form. [Pl. at 129:17-21, Ex. Redacted Redacted Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 10 of 37 PageID 705 11 #51127300_v1 22]. Specifically, via correspondence dated September 23, 2013, Dr. Rodriguez indicated that Plaintiff would be “a good candidate” for certain positions including: hazardous materials designated responder, unloader, pre-loader, porter, air sorter, hub sorter, primary sorter and operations clerk. [Rodriguez at 45:6-13, Ex. 19]. Rodriguez did not list the service provider/package car driver position because Plaintiff was still taking narcotics and could not drive a vehicle while taking narcotics. [Rodriguez at 47:1-16]. G. The Full-Time to Part-Time Accommodation Agreement between Plaintiff, UPS and the Teamsters Following the checklist meeting, UPS determined that, based upon the information received from Plaintiff and from Dr. Rodriguez, Plaintiff was eligible for a job-related accommodation. [Klinger at ¶ 28]. UPS was required to negotiate with the local union prior to providing Plaintiff with an ADA accommodation. [Calder at ¶ 7]. Brian Rothman, union business representative, represented Plaintiff through UPS’s ADA Accommodation process, as he has many other employees. [Rothman, at 18:15-21]. UPS offered Plaintiff part time work as an ADA accommodation. [Pl. at 126:10-14, 126:21–127:4]. Plaintiff spoke to Rothman about accepting the part-time position. [Pl. at 127:18-21]. Plaintiff and the Teamsters Union Local 79 entered into a Full Time to Part Time (FT to PT) Accommodation Agreement with UPS in November 2013. [Pl. at 130:11-21, Ex. 23; Rothman at 59:4-7]. The ADA Accommodation Agreement was required under Article 14 of the CBA. [Rothman at 63:6-10]. Rothman stated that the FT to PT Accommodation Agreement was a reasonable accommodation. [Rothman at 100:25–101:7]. Rothman describes full time accommodations at UPS as “very rare” nationwide. [Rothman at 114:1-16]. Neither UPS Labor Manager, Victor Calder, nor UPS Division Manager, Eric Pearson, is aware of any full time employee in the Florida District who has requested and received a full time, inside job as an ADA Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 11 of 37 PageID 706 12 #51127300_v1 accommodation. [Calder at ¶ 25; Pearson at ¶ 16]. Plaintiff and his union representative signed the agreement “under protest” because the union believed that UPS had full-time work available. [Pl. at 128:1-13, 130:22–131:7]. Contrary to the union’s belief, however, in 2013, there were no full time inside positions available into which Plaintiff could have successfully bid based on his seniority. [Calder at ¶ 12; Pearson at ¶ 10]. And UPS is not able to create a 22.3 “combo” position for Plaintiff without violating the seniority rights of other employees. [Calder at ¶¶ 19-24]. Ultimately, Rothman advised Plaintiff that signing the agreement was the only way that Plaintiff would be returned to work. [Rothman at 69:15-22]. At the time that the agreement was signed, Plaintiff was not capable of performing his package car driver job. [Rothman at 71:8-22; Ex. 37]. When Plaintiff became a part-time employee under the ADA Accommodation Agreement, he received benefits. [Pl. at 131:21–132:1]. Since Plaintiff entered into his FT to PT ADA Accommodation Agreement, Rothman has seen 10-15 more such agreements. White employees have also entered into these agreements. [Rothman at 64:11–65:13]. H. Plaintiff’s work under the Full Time to Part Time ADA Accommodation Agreement From the date that Plaintiff attempted to return to work in 2013, through the date that Plaintiff signed the FT to PT Accommodation Agreement, in November, 2013, and continuing through 2015, Plaintiff filed numerous grievances. [Calder at ¶ 15]. Those grievances included claims that he should have been returned to work prior to the date he signed the FT to PT Accommodation Agreement, and that he should be given more than 3.5 hours of work per day after he signed the FT to PT Accommodation Agreement. [Calder at ¶ 15]. Several of Plaintiff’s grievances were unable to be resolved at the local level, and proceeded through the CBA mandated grievance process. [Calder at ¶ 15]. Prior to a hearing at the National Health and Safety Committee, UPS and the Union were able to resolve Plaintiff’s grievances. [Calder at ¶ 18]. The Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 12 of 37 PageID 707 13 #51127300_v1 agreed upon resolution was that Plaintiff would be entitled to any extra work or coverage that his seniority, presence, training and skills would provide him. [Calder at ¶ 18]. Rothman withdrew the grievance deadlocked to the National Health and Safety Committee panel with the right to refile. Plaintiff has not refiled his grievances. [Calder at ¶ 18]. Plaintiff initially worked part-time in the small sort as a bagger in the PM shift. [Pl. at 133:15-22, 136:1-2]. Plaintiff also started doing hazmat and rewrap work to try to get more hours. [Pl. at 141:3-11]. Rothman and UPS Division Manager Eric Pearson pointed out to Plaintiff that there could be eight hours of work back to back available during the PM shift when Plaintiff was deciding between AM and PM work. [Rothman at 75:3–25; Pearson at ¶ 11]. Plaintiff eventually began working in the carwash in addition to the small sort. [Pl. at 146:12–147:12]. On days in which Plaintiff worked both jobs, he would work eight hours. [Pl. at 147:15-18]. During 2015, Plaintiff worked the carwash off and on, but always worked the preload. [Pl. at 151:10–152:3]. On November 17, 2016, at Plaintiff’s request, Dr. Rodriguez provided Plaintiff with a return to work release that stated that Plaintiff was capable of performing that job and should be allowed to drive company trucks through the onsite car wash. [Rodriguez at 49:12–50:1, Ex. 20]. In 2016, Plaintiff worked 8 hours per day in the carwash. [Pl. at 154:1-11]. He also worked additional hours during holidays. [Pl. at 154:12-19]. Although he is classified as a part-time employee, UPS and the Teamsters union have agreed to let Plaintiff work eight hours per day at straight time, performing extra work as available. [Rothman at 87:18-24; Calder at ¶ 18; Pearson at ¶ 14]. Plaintiff understands this to be the case. [Rothman at 88:10-12]. IV. MEMORANDUM OF LAW In his EEOC charges, as well as in the various manifestations of his Complaint, Plaintiff has maintained that UPS mistakenly perceived him as disabled and discriminated against him on Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 13 of 37 PageID 708 14 #51127300_v1 that basis. Plaintiff’s disability discrimination claims fail because (1) any perception by UPS that Plaintiff was disabled was based exclusively on the representations of Plaintiff and his physician; (2) Plaintiff twice requested ADA accommodations from UPS, and both times provided medical information to support the request; (3) UPS ultimately provided Plaintiff with a reasonable accommodation, even if it was not Plaintiff’s preferred accommodation; and, finally, (4) Plaintiff has suffered no adverse employment action. Further, the undisputed facts do not support a claim that Plaintiff was discriminated against because of his race. A. Plaintiff’s ADA and FCRA Disability Discrimination Claims Fail As a Matter of Law because Plaintiff Cannot Establish Prima Facie Case of Discrimination. Plaintiff’s disability discrimination claims are brought pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12111 et. seq., and the Florida Civil Rights Act of 1992 (“FCRA”), Fla. Stat. § 760.01 et seq.4 The ADA prohibits discrimination “against a qualified individual with a disability because of the disability of such individual 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); See Wood v. Calhoun County, Fla., No. 14-15613, 2015 WL 5449753 (11th Cir. Sept. 17, 2015) (affirming summary judgment in favor of the employer in an ADA case where the plaintiff did not show that the reasons for firing him were pretextual). The FCRA likewise makes it unlawful for an employer to “discharge or fail to refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s ... handicap....” Fla. Stat. § 760.10. 4 Because federal case law interpreting the ADA is applicable to claims arising under the FCRA, Plaintiff’s two causes of action are analyzed simultaneously. Reis v. University City Development Partners, Ltd, 442 F. Supp. 2d 1238, 1243 (M.D. Fla. 2006). Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 14 of 37 PageID 709 15 #51127300_v1 Under both the ADA and the FCRA, Plaintiff may prove his claim of discrimination through direct evidence, statistical analysis showing a pattern of discrimination, or circumstantial evidence.5 See, e.g., Washington v. Sch. Bd. of Hillsborough Cnty., 731 F.Supp. 2d 1309, 1317 (M.D.Fla. 2010); Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). In the absence of direct or statistical evidence of discrimination, to prevail at summary judgment, a plaintiff must establish a prima facie case of discrimination through circumstantial evidence. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1243 (11th Cir. 2010). To establish a prima facie case of disability discrimination, Plaintiff must demonstrate that: (1) he has a disability; (2) he is a qualified individual, with or without a reasonable accommodation and (3) the defendant unlawfully discriminated against him because of his disability. See Knowles v. Sheriff, 460 F. App’x 833, 835 (11th Cir. 2012). Once plaintiff establishes a prima facie case, the employer must articulate a legitimate, nondiscriminatory reason for the challenged employment action. McDonnell Douglas Corp., 411 U.S. at 802-803. If the employer proffers one or more reasons, the presumption of discrimination is eliminated, and, to survive summary judgment, the plaintiff must produce evidence from which a reasonable jury could conclude the reasons were not the real reasons for the adverse employment action, but each was pretextual. Id. at 802-805. Here, the record evidence controverts Plaintiff’s claim that he was subjected to 5 Plaintiff has not presented any direct evidence of disability discrimination and none exists. Direct evidence of discrimination is “evidence from which a trier of fact could reasonably find that the defendant more probably than not discriminated against the plaintiff on the basis of a protected personal characteristic.” Wright v. Southland Corp., 187 F.3d 1287, 1300 (11th Cir. 1999). “[O]nly the most blatant remarks, whose intent could be nothing other than to discriminate” will constitute direct evidence of discrimination. See Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1359 (11th Cir. 1999) (internal quotation omitted). “[R]emarks . . . unrelated to the decision- making process itself are not direct evidence of discrimination.” Standard, 161 F.3d at 1330. Further, no statistical evidence of disability discrimination is present in this case. Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 15 of 37 PageID 710 16 #51127300_v1 discrimination because UPS supposedly perceived him to be disabled. Even if he could somehow prove that claim, UPS has a legitimate, non-discriminatory reasons for not providing Plaintiff with his accommodation of choice – a full time, inside position. Specifically, the record establishes that Plaintiff could not perform the essential job functions of the package car driver position, nor did he want to, and no other full time work was available for Plaintiff that did not require UPS to violate the seniority rights of other employees. Plaintiff will be unable to establish that this reason is a pretext for discrimination. Therefore, his disability discrimination claims must fail. 1. Plaintiff’s claims that UPS mistakenly perceived him as being disabled are wholly unsupported by the record evidence in this case. The ADA defines “disability” as: (1) a physical or mental impairment that substantially limits one or more of the major life activities; (2) a record of such impairment; or (3) being regarded as having such an impairment. 42 U.S.C. § 12102(2). Here, Plaintiff claims only that UPS perceived him as disabled. [Sec. Am. Compl. ¶¶ 22, 39, 43]. “An individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C.A. § 12102(3)(A). Plaintiff has consistently maintained, in his May 20, 2013 EEOC Charge [Doc. 26-1], his Complaint, his Amended Complaint, and his Second Amended Complaint, filed on August 31, 2016, two and a half years after he agreed to an ADA accommodation, that he is willing and able to work, but that UPS perceives him to be disabled. These allegations, however, are completely belied by the record in this case. As detailed in Section I, supra, any “perception” that Plaintiff is disabled and/or unable to perform the essential functions of a full time package car driver, is based wholly and exclusively on: (1) the medical records submitted to UPS by Dr. Rodriguez; (2) Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 16 of 37 PageID 711 17 #51127300_v1 Plaintiff’s own representations to UPS (and to the Union) that Plaintiff could no longer work as a package car driver; (3) Plaintiff’s two requests for reasonable accommodation under the ADA; (4) the information provided by Plaintiff and his doctor during the ADA interactive process and ADA checklist meeting. And, based on this information, UPS ultimately offered and provided to Plaintiff a reasonable accommodation.6 The record is undisputed as to these points. That being the case, Plaintiff’s “regarded” or “perceived” as disability discrimination fails and UPS is entitled to summary judgment on Plaintiff’s ADA and FCRA claims. See, e.g., Young v. United Parcel Service, Inc., 992 F. Supp.2d 817 (M.D. Tenn. 2014) (granting summary judgment on, inter alia, plaintiff’s ADA “regarded as” and failure to accommodate and race discrimination claims). In Young, the Court found that the plaintiff’s arguments that UPS regarded him as disabled were without merit where, “at most, plaintiff had demonstrated only that UPS had honored the medical restrictions imposed by plaintiff’s doctor.” Id. at 836; see also Sicilia v. United Parcel Serv., Inc., 279 F. App’x 936, 938 (11th Cir. 2008) (no disability discrimination where UPS removed employee from his position because of doctor’s restrictions). Even though Plaintiff’s perceived as disability claim is directly contradicted by the record and therefore, fails as a matter of law in the abundance of caution, UPS will continue to analyze Plaintiff’s claims, as though Plaintiff has acknowledged that he suffers from a physical impairment that substantially limits a major life activity – which is the information UPS repeatedly received from Plaintiff and his treating physician, Dr. Rodriguez. 2. Plaintiff is not a qualified individual with a disability under the ADA because 6 Under the ADAAA, if Plaintiff is merely perceived as disabled, but has no actual disability, UPS is not required to provide Plaintiff with a reasonable accommodation. See 42 U.S.C. § 12201(h) and 29 C.F.R. §§1630.2(o)(4) and 1630.9(e). “To succeed on a perceived disability claim, a plaintiff must show that (1) the employer regarded him as having a disability; (2) he was “qualified”; and (3) he was discriminated against because of his perceived disability.” Bagwell v. Morgan County Commission, No. 15-15274, 2017 WL 192694, *4 (11th Cir. 2017). Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 17 of 37 PageID 712 18 #51127300_v1 Plaintiff could not perform the essential job functions of the package car driver job with or without an accommodation. As to the second element of the prima facie case, a “qualified individual with a disability” is 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.” 42 U.S.C. § 12111(8). Plaintiff must show either that he can perform the essential functions of his job without accommodation, or, failing that, show that he can perform the essential functions of his job with a reasonable accommodation. See Davis v. Florida Power & Light Co., 205 F. 3d 1301, 1305 (11th Cir. 2000). “Thus, if [the plaintiff] is unable to perform an essential function of his ... job, even with an accommodation, he is, by definition, not a qualified individual and, therefore, not covered under the ADA.” McKane v. UBS Fin. Servs., Inc., 363 F. App'x 679, 681 (11th Cir. 2010) (alteration in original), citing Davis, 205 F. 3d at 1305. Plaintiff was not a qualified individual with a disability for the package car driver job that he held. Dr. Rodriguez indicated that Plaintiff could not perform the essential job functions of the package car driver job. [Rodriguez at Ex. 18]. Plaintiff also indicated on his ADA accommodation checklist paperwork that no accommodation would permit him to perform his full time package car driver job. [Pl. at Ex. 21, #4]. UPS, however, went above and beyond what is required by the ADA. It twice put Plaintiff through the ADA accommodation process, and offered Plaintiff an ADA accommodation, which Plaintiff accepted. Because Plaintiff is not a qualified individual with a disability, UPS should be granted summary judgment on Plaintiff’s ADA claims. 3. Plaintiff cannot establish a prima facie case of disability discrimination because UPS offered Plaintiff a reasonable job related accommodation, which he accepted, in writing, in November, 2013. Additionally, Plaintiff cannot establish the third prong of the prima facie case, that he was subjected to discrimination because of his disability. It is unclear whether Plaintiff claims that he Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 18 of 37 PageID 713 19 #51127300_v1 was discriminated against because UPS failed to provide him with the ADA accommodation that he wanted,7 or because he supposedly suffered an adverse employment action. To the extent Plaintiff alleges that UPS discriminated against him because it failed to accommodate him with a full time, inside job, Plaintiff’s preferred accommodation, such a claim fails because UPS offered Plaintiff a reasonable accommodation, which he accepted on November 12, 2013. It is unlawful for an employer to fail to accommodate the known limitations of a qualified, disabled, individual. 42 U.S.C. § 12112(b)(5)(A); Griffin v. United Parcel Service, Inc., 661 F 3d 216, 224 (5th Cir. 2011)(affirming summary judgment for employer on plaintiff’s ADA claims). Reasonable accommodations may include “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, ... and other similar accommodations.” 42 U.S.C. § 12111(9)(B). Plaintiff has the burden of identifying the accommodation he seeks, and demonstrating that the accommodation would have allowed him to perform his job’s essential functions. See Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255-57 (11th Cir. 2001). 7 Plaintiff did not allege a failure to accommodate claim in any of his EEOC Charges, or expressly in any of his Complaints, including his Second Amended Complaint. Indeed, Plaintiff stated in his May 20, 2013 EEOC Charge “In my case, I am not even asking for an accommodation, I am just asking to be returned to my job and to be compensated for my lost wages and no longer be retaliated for filing a workers’ compensation claim.” Therefore, Plaintiff has failed to exhaust his administrative remedies and waived his right to bring such a claim here. See Fritz v. United Parcel Service, Inc., Case No., 15-9178-JWL, 2016 WL 4565692 (D. Kan. 2016) (entering summary judgment on the plaintiff’s ADA failure to accommodate claims where plaintiff failed to include such allegations in the text of his EEOC charge or EEOC questionnaire); Anderson v. Embarq/Sprint, 379 F. App’x 924, 927 (11th Cir. 2010) (dismissing new claims of discrimination brought in complaint, but not included in EEOC charge, for failure to exhaust administrative remedies); West v. New Mexico Taxation & Revenue Dep’t, 757 F. Supp. 2d 1065, 1113 (D.N.M. 2010) (stating because employee “neither exhausted nor pled a failure-to-accommodate claim, employee’s claim is not properly before the Court, and the Court lacks subject-matter jurisdiction over this claim. Consequently, the Court dismisses [the employee’s] failure-to-accommodate claim”). Additionally, this Court dismissed Plaintiff’s workers’ compensation retaliation claims with prejudice. [Doc. # 34]. Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 19 of 37 PageID 714 20 #51127300_v1 [T]he use of the word ‘reasonable’ as an adjective for the word ‘accommodate’ connotes that an employer is not required to accommodate an employee in any manner in which that employee desires. This is so because the word ‘reasonable’ would be rendered superfluous in the ADA if employers were required in every instance to provide employees ‘the maximum accommodation or every conceivable accommodation possible.’ Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997) (internal citations omitted). Here, Plaintiff’s preferred accommodation – a full time, inside job – was per se unreasonable because it would require UPS to infringe upon the seniority rights of other employees in violation of the CBA between UPS and the Teamsters Union. See U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 403 (2002) (finding, except in the case of special circumstances, proposed accommodation that conflicts with seniority system is not “reasonable” and that the ADA does not require proof on a case-by-case basis that a seniority system should prevail); Davis, 205 F. 3d 1301, 1606-07 (11th Cir. 2000) (finding an accommodation that contravenes the seniority rights of other employees under a collective bargaining agreement is unreasonable as a matter of law). Here, UPS did offer Plaintiff a reasonable accommodation in the form of a part-time, inside position, which Plaintiff, and the Union, accepted in writing on November 12, 2013. See Parnahay v. United Parcel Service, Inc., 20 Fed. App’x 53, 56 (2nd Cir. 2001) (finding a part time job is a reasonable accommodation). “The ADA provides a right to reasonable accommodation, not to the employee’s … preferred accommodation.” Griffin, 661 F. 3d at 224. Moreover, “a disabled employee has no right to a promotion, to choose what job to which he will be assigned, or to receive the same compensation as he received previously.” Griffin, 661 F. 3d at 224. (citations omitted). By accommodating Plaintiff with an available part-time position that did not violate the seniority rights of other employees, UPS fulfilled its obligations under the ADA. i. The Collective Bargaining Agreement governs the manner in which UPS employees accrue seniority and bid on jobs. Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 20 of 37 PageID 715 21 #51127300_v1 Plaintiff is a member of the Teamsters Union. [Pl. at 23:17-21; Rothman at 12:14-16]. Plaintiff’s employment is governed by the CBA. [Rothman at 13:21-25]. Pursuant to the CBA, employee seniority is determined by job classification, such as package car driver, full time inside employee, or part time employee and by the facility in which the employee works. [Calder at ¶ 9]. Periodically, all jobs go up for bid, and employees may bid on the job they want. [Calder at ¶ 9]. The job is then awarded based on seniority. [Calder at ¶ 7]. Accordingly, the most senior package car driver would have the first choice of the package car driver routes in the center, and the most senior full time, inside “22.3” employee would have the first choice of the 22.3 positions, or shifts. A “22.3” employee is a full time employee working what was previously two part time jobs, but those jobs have been combined into one full time job, pursuant to the terms of the CBA. [Calder at ¶ 19]. UPS does not have the unilateral ability or authority to move an employee from one job classifications to another. [Calder at 23]. Employees obtain their jobs through the CBA- mandated bidding procedure. [Calder at 23]. ii. Plaintiff’s First ADA Accommodation Request was denied because the information provided by Dr. Rodriguez indicated that he could perform the essential job functions of the package car driver job. Plaintiff returned to work in 2013 with restrictions, based on the result of his First FCE, that did not allow him to return to his driver job. [Pl. at Exs. 6-8, 10; Klinger at ¶ 6]. On March 28, 2013, Klinger sent Plaintiff a letter informing him that, based on the information provided in the first FCE, he may be eligible for a job-related accommodation. [Klinger at ¶ 7; Pl. at 105:22– 106:9, 111:12-16, Ex. 18]. Plaintiff did not actually request an ADA accommodation for the first time until June 11, 2013. [Klinger at ¶ 9]. Upon receipt of his request, UPS immediately sent Plaintiff information necessary to process his ADA accommodation request. Id. On July 17, 2013, Plaintiff’s first ADA accommodation request was denied, based on information Dr. Rodriguez Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 21 of 37 PageID 716 22 #51127300_v1 submitted to UPS – that Plaintiff could perform the essential job functions of the package car driver job.8 [Klinger at ¶ 14]. Klinger instructed Plaintiff to contact his HR Manager, Joe Mineo, to return to his package car driver position. [Klinger at ¶ 13]. Plaintiff did not attempt to return to his package car driver position at that time. Instead, he requested that his doctor provide revised medical information to UPS. [Rodriguez Ex. 18]. iii. For Plaintiff’s Second ADA Accommodation Request, made thirteen days later, Dr. Rodriguez provided information indicating that Plaintiff could not perform the essential job functions of the package car driver job. Thirteen days after Plaintiff’s first accommodation request was denied, he made a second request for ADA accommodation. [Klinger at ¶ 16]. Again, UPS immediately sent Plaintiff the information necessary to process his ADA accommodation request. Id. This time, the information Dr. Rodriguez submitted to UPS stated that Plaintiff could not perform the essential job functions of the package car driver job. [Klinger at ¶ 21; Rodriguez Ex. 18]. As a result, on August 18, 2013, UPS met with Plaintiff for UPS’s ADA checklist meeting. [Klinger at ¶ 26]. The purpose of the ADA checklist meeting is for Plaintiff and UPS to engage in the interactive process whereby Plaintiff and UPS meet and discuss the jobs Plaintiff is interested in, whether he is willing to relocate, whether he is willing to take a non-union position. [Klinger at ¶ 25]. Plaintiff completed and signed the ADA checklist meeting documentation, indicating as follows: he ; he wanted a full time, inside job; and that he would not accept a non- Union position, nor would he relocate. [Klinger at ¶ 27]. Further, all of the jobs that Plaintiff indicated that he could do were part-time jobs. [Pl. Ex. 21; 120-123]. Nonetheless, Mineo searched for full time jobs that Plaintiff could perform which would not conflict with the CBA, but none 8 This belies Plaintiff’s claim that UPS perceived him as being disabled and establishes that UPS’s finding that he was disabled was based solely on the representations of Plaintiff and his physician. Redacted Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 22 of 37 PageID 717 23 #51127300_v1 were available. [Pl. at 126, ln 21-22 - 127, ln 1; Ex 21; Calder at ¶¶ 11-12]. UPS informed Plaintiff that it would continue to search for jobs that met Plaintiff’s criteria. [Klinger at ¶ 29] iv. The accommodation Plaintiff desired was unreasonable as a matter of law, because it conflicted with the terms of the Collective Bargaining Agreement. Despite the fact that every job that Plaintiff identified he could perform was a part time job, Plaintiff’s desired accommodation was a full time, inside job, meaning he wanted to work inside UPS’s facility, rather than work as a package car driver. However, the ADA does not require UPS to provide Plaintiff with the exact accommodation or specific job that he wants. McKane, 363 F. App’x at 681 (employee with a disability is not entitled to the accommodation of his choice, but only to a reasonable accommodation, and granting summary judgment granted to employer). Nor does the ADA require UPS to create a job. Smith v. Sturgill, 516 F. App’x 775, 776 (11th Cir. 2013) (granting summary judgment to employer where employee was not a qualified individual with a disability and stating that an employer need not create a new position for an employee as an accommodation). The Supreme Court has held that an accommodation that violates a bona fide seniority system, as contained in the CBA, is not reasonable. See Barnett, 535 U.S. at 403 (2002); Sicilia 279 F. App’x at 939 (even if employee did qualify for an accommodation, UPS was not required to violate its own seniority system to accommodate him to the day-shift positions for which he applied). Here, the job that Plaintiff wanted – a full time, inside position – was not available. [Calder at ¶ 12]. Accordingly, providing Plaintiff with a full-time, inside job would have required UPS to remove another bargaining unit employee from a full time, inside position, or violate another employee’s seniority rights, which the ADA does not require. See Barton v. Bd. of Regents of Univ. Sys. of Georgia, 478 F. App’x 627, 631 (11th Cir. 2012) (granting summary judgment to employer finding accommodation that required employer to create a new position was Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 23 of 37 PageID 718 24 #51127300_v1 not a reasonable accommodation under the ADA); Terrell v. USAir, 132 F.3d 621, 626–27 (11th Cir. 1998) (employee’s requested accommodation of reassignment to a part-time job was unreasonable because no part-time jobs were available at the time of the request and fulfilling the request would have required the employer to create a new position). Further, simply placing Plaintiff into a full time, inside job would also expressly contravene the terms of the CBA which mandate that employees bid on jobs, based on order of seniority. [Calder at ¶¶ 12, 24]. As a result, Plaintiff’s desired accommodation was unreasonable as a matter of law. See Davis v. FPL, 205 F. 3d 1301, 1606-07 (11th Cir. 2000) (accommodation that contravenes the seniority rights of other employees under a collective bargaining agreement is unreasonable as a matter of law); Mattingly v. Univ. of S. Florida Bd. of Trustees, 931 F. Supp. 2d 1176, 1186 (M.D. Fla. 2013) (allowing employee to apply to an open position in another facility would have violated the collective bargaining agreement, an action employer was not required to take, and granting summary judgment to employer). UPS offered Plaintiff several part time inside jobs as a reasonable accommodation, working either in the early morning, or in the late afternoon, known as “the PM.” [Pearson at ¶ 11]. Prior to deciding which job to accept, Plaintiff met with Pearson, with whom he has a great relationship, and they discussed that, based on the work that is performed in the building, he would more likely have the opportunity to pick up extra hours of work if he accepted a PM position. Id. On November 12, 2013, Plaintiff accepted the PM part time sorter job as a reasonable accommodation. [Pl. Ex. 23]. Plaintiff began the sorter job the next day. [Pl. at 133:15-18]. In sum, UPS did not discriminate against Plaintiff because Plaintiff requested a job related accommodation. UPS, after negotiating with the union, offered Plaintiff a reasonable accommodation, which he accepted. Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 24 of 37 PageID 719 25 #51127300_v1 Accordingly, any claim Plaintiff asserts that UPS discriminated against him by failing to provide him with a reasonable accommodation is without merit. 4. Plaintiff cannot establish a prima facie case of disability discrimination because he was not subjected to an adverse employment action when UPS did not return him to his package car driver job that he was not released to perform, and that he did not want to perform. Additionally, Plaintiff cannot establish a prima facie case of disability discrimination because he was not subjected to an adverse employment action. A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Ward v. United Parcel Service, Inc., 987 F. Supp. 2d 1240, 1262 (N.D. Ala. 2013), aff'd, 580 F. App'x 735 (11th Cir. 2014), citing Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761–62 (1998). Plaintiff claims both that he was refused his full time position and full time hours with UPS [Sec. Am. Compl. 26], and that he was given “no job” [Sec. Am. Compl. 26 fn 1]. It is unclear, of course, to which “full time position” Plaintiff is referring – his full time package car driver position that he could not perform, or the full time inside position he wanted. Plaintiff, however, was not discharged or demoted, nor did he suffer a reduction in pay because of his disability when he attempted to return to work in March 2013. Plaintiff has been an employee of UPS since 1996. Plaintiff has not worked as a package car driver since March 2012 because he either: (1) was out on workers’ compensation leave; (2) was not cleared by his doctor to return to the package car driver position; (3) did not want to work as a package car driver; (4) only wanted to work a full time, inside job that did not exist; or, (5) had requested an ADA accommodation and was going through UPS’s interactive process. None of these actions can possibly be found to constitute an adverse employment action on the part of UPS. See Smith v. United Parcel Service, Inc., 50 F. Supp. 2d 649, 653 (S.D. Tx. 1999) (granting summary judgment to UPS, finding that Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 25 of 37 PageID 720 26 #51127300_v1 UPS’s refusal to offer injured package car driver two combined part time jobs when it had no obligation to combine part time jobs did not constitute an adverse employment action). UPS did not return Plaintiff to his package car driver position because UPS did not receive any definitive information from Dr. Rodriguez that Plaintiff could perform that job until after Plaintiff had applied for an ADA Accommodation in June 2013. Requiring Plaintiff to present an authorization from his doctor that he is released to perform the essential functions of the package car driver position before allowing him to return to work does not constitute discrimination under the ADA. See Lyons v. Miami-Dade County, 791 F. Supp. 2d 1221, (S.D. Fla. 2011) (finding no disability discrimination and stating that the employer “clearly has the right under the ADA and FCRA to require [the employee] to undergo a fit for duty examination . . . especially given the fact [the employee] was returning to work from a leave of absence because of [a] medical condition”). Once UPS received the July 2013 information from Dr. Rodriguez that Plaintiff could perform the essential job functions of the package car driver job, UPS informed Plaintiff that, based on the information received from his doctor, UPS was unable to determine he had a disability. At that point, UPS closed Plaintiff’s first ADA accommodation case, and told Plaintiff to contact Human Resources about returning to work. [Klinger at ¶ 13]. If, in fact, Plaintiff wanted to return to his full time package car driver job as he now claims, he had the opportunity to do so in July 2013, when his doctor expressly cleared him to do so. Plaintiff, however, told Pearson he did not want to return to the package car driver job, which he thought “would kill him.” [Pearson at ¶ 9]. And Rothman testified that the “ultimate goal” was to get Plaintiff working inside because he could no longer perform the package car deliver work. [Rothman at 41:16-23]. The fact that Plaintiff chose not to return to his full time package car driver job after his first ADA accommodation request was denied cannot be considered an adverse employment action by UPS. Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 26 of 37 PageID 721 27 #51127300_v1 Instead of returning to work to his full time position, which is what he claimed he wanted, 13 days later, Plaintiff requested a second ADA accommodation from UPS, and this time, Dr. Rodriguez reversed his earlier opinion, indicating that Plaintiff could not perform the essential functions of the package car driver job. Based on this information, Plaintiff could not be returned to work as a package car driver. Again, the fact that UPS did not return Plaintiff to the package car driver after August 8, 2013, when Dr. Rodriguez informed UPS he could not perform the job is not an adverse employment action. See Jennings v. Dow Corning Corp., No. 12–12227, 2013 WL 1962333, * 11, (E.D. Mich. May 10, 2013) (stating that employer was permitted to rely upon physician’s medical restrictions in determining which jobs the employee could perform). As a result of this new information, UPS quickly put Plaintiff through the ADA accommodation process and immediately begun looking for jobs that he could perform. As both UPS and the Union agree, there were no full time inside jobs Plaintiff could perform that would not violate the seniority rights of other employees.9 [Rothman at 132:1-7; Calder at ¶ 12]. As described above, UPS is not required to contravene the CBA to place Plaintiff is in his preferred job. Once Plaintiff, in consultation with the Union, agreed to accept a reasonable accommodation, Plaintiff began working the next day. [Pl. at 133:15-18] Under these facts, Plaintiff cannot show that he suffered any adverse employment action, based on UPS’s failure to return him to work as a package car driver. 5. None of Plaintiff’s so-called comparators are similarly situated. To the extent that Plaintiff attempts to base his disability discrimination claim on alleged 9 That there may have been 8 hours of work available at the facility does not mean there was a full time job available for Plaintiff, as Rothman admitted. [Rothman at 129:21-25 – 130:1-3]. UPS and the Union agree that from March 2013 to the present no full time inside jobs have been available. [Id.; Calder at ¶ 12.] Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 27 of 37 PageID 722 28 #51127300_v1 disparate treatment, Plaintiff has failed to establish that any of the eleven other employees he has identified in his EEOC Charges, or at deposition, who were allegedly treated better than he was are similarly situated to Plaintiff, and as a result, he cannot establish a claim of disability discrimination. To make a comparison of the plaintiff’s treatment to that of non-disabled employees, the plaintiff must show that he and the employees are similarly situated in all relevant respects. Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997). “In determining whether employees are similarly situated for purposes of establishing a prima facie case, it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways.” Id. see also Maniccia v. Brown, 171 F.3d 1364, 1368–69 (11th Cir. 1999) (“We require that the quantity and quality of the comparator’s misconduct be nearly identical to prevent courts from second-guessing employers’ reasonable decisions and confusing applies with oranges.” (emphasis added)); Street v. United Parcel Service, Inc., 822 F. Supp.2d 1357 1367 (M.D. Ga. 2011 ) (granting summary judgment on plaintiff’s race discrimination claim and noting that “even if plaintiff and a comparator and similar in some respects, differences in their overall record may render them not ‘similarly situated’ for purposed of establishing a prima facie case”). Plaintiff did not conduct any discovery in this case. Thus, Plaintiff’s allegations related to his so-called comparators are based solely on his unsubstantiated beliefs of the circumstances surrounding the work performed by those other employees. i. Supposed Comparators Named in Plaintiff’s First EEOC Charge In Plaintiff’s first EEOC Charge, Charge No. 511-2013-02079, dated May 20, 2013, Plaintiff identified other employees who he claimed UPS accommodated:10 Dave Johnson, Pattie 10 Plaintiff’s second Charge of Discrimination, filed with the Pinellas County Office of human Rights and the EEOC did not name any alleged comparators. [Doc. # 26-2]. Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 28 of 37 PageID 723 29 #51127300_v1 Perchelli, Gordon Flonoy, James Cross and Diane Pearson. Doc. # 26-1. None of these individuals are similarly situated to Plaintiff. Dave Johnson (White) is a full time inside, preload employee. [Palacio ¶ 6]. Johnson is a former package car driver who, many years ago, became unable to drive. Id. Plaintiff admitted that Johnson has “way more seniority” than Plaintiff and was already working inside when Plaintiff started as a part-time employee working the preload, in 1996, or more than 20 years ago. [Pl. at 173:12-22]. Plaintiff admits that he does not know what Johnson’s impairment rating, if any, was, what center he worked in, who is manager was, or when he was injured. [Pl. at 92:14–93:5]. Plaintiff does not know whether Johnson was injured on the job or if he went through UPS’s ADA accommodation process. [Pl. at 173:1-11]. At the time Johnson became unable to drive, he was able to obtain a full time inside job. [Palacio ¶ 6]. UPS management, in consultation with UPS’s occupational health nurse determined that at that time there was a full time, inside position Johnson could perform given his medical restrictions. Id. Johnson is not similarly situated to Plaintiff, as he obtained an inside job over 20 years ago, under an earlier version of the CBA, based on his medical restrictions at that time. Additionally, that was long before the current iteration of Article 14 of the CBA, which governs ADA accommodations. [See Rothman at 19:9-17]. Next, Plaintiff claims that Pattie Perchelli is a white UPS package car driver who was allowed to work inside and get eight hours per day after receiving three DUIs. [Pl. at 209:19– 210:10]. In fact, Pattie Perchelli is former package car driver who is now a 22.3 (combo) inside employee who works the PM shift in the Pinellas hub. [Rothman at 82:4-6]. Perchelli bid into that position through the CBA in 2006. [Rothman at 82:7-15; Palacio at ¶ 6]. As discussed above, Plaintiff did not have the required seniority to bid into a 22.3 position. Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 29 of 37 PageID 724 30 #51127300_v1 Third, Plaintiff identified “Leonard” or “Gordon” Flonoy as a white package car driver who suffered an injury and was given a “made up position in the warehouse” by UPS. [Pl. at 95:20– 97:13]. Plaintiff does not know whether Flonoy went through UPS’s ADA accommodation process. [Pl. at 97:21–98: 3]. UPS has no record of an employee by either name. [Palacio at ¶ 9].11 Fourth, James Cross is a white UPS package car driver who Plaintiff claims was allowed to work inside to get his eight hours after receiving a DUI. [Pl. at 210:18–211:19]. Cross was arrested for a DUI in January 2013. [Palacio at ¶ 11]. Pursuant to the terms of the CBA, drivers who are cited for a DUI are permitted to work inside while seeking substance abuse treatment. [Calder at ¶ 8]. Cross is currently working again as a package car driver. [Palacio at ¶ 6]. Plaintiff is not similarly situated to Cross. To UPS’s knowledge, Plaintiff was not cited for a DUI, and he was not removed from driving for that purpose. Cross was permitted to work inside under a specific provision of the CBA which does not apply to Plaintiff. Lastly, Plaintiff claimed Diana Pearson, a part time inside employee, worked as a porter, but UPS has no record of Pearson performing such work. [Palacio ¶ 8] Pearson is a part time employee, not a driver. She suffered an on the job injury in March 2013, which rendered her unable to perform her usual duties. Id. She could, however, perform another part time inside position, the same classification in which she otherwise worked, based on the information UPS received from her medical provider. Id. Here, Plaintiff was attempting to work outside of his package car driver classification, and thus is not similarly situated to Pearson.12 11 Plaintiff is likely referring to Gordon Pennoyer (White) who was a 22.3 inside employee before separating from UPS approximately ten years ago. [Palacio at ¶ 10]. UPS no longer has a record of the date on which Pennoyer bid into his 22.3 position. [Palacio at ¶ 10]. Like Perchelli, Pennoyer is not similarly situated to Plaintiff, because Plaintiff did not have enough seniority to bid into a 22.3 job. 12 In Plaintiff’s March 10, 2014 EEOC Charge No. 511-2014-01182, attached to his Second Amended Complaint, Plaintiff identified other employees – Gary Roseman, Herb [LNU] and Regis Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 30 of 37 PageID 725 31 #51127300_v1 ii. Supposed Comparators Named during this Litigation At his deposition, Plaintiff identified additional white employees who he believed were treated more favorably than he was, including Rich Hubel (identified by Plaintiff as Hubert), Tim Wilson and John Solmin. [Pl. at 205:5-22 - 206:1; 94:7-22 - 95:1-19] Hubel and Wilson are part time employees on the car wash, who Plaintiff claims “get to work overtime.” [Pl. at 205:5-22 - 206:1]. Plaintiff did not provide any information as to how often Hubel or Wilson work overtime. Part time employees may work overtime from time to time based on the needs of the business. Hubel and Wilson are each guaranteed 3.5 hours per day. For the past two years, Plaintiff, however, has worked 8 hours straight time each day. See Pl. 147:19-22; 149:22 - 150:1-5; Ex. 27; Rothman at 88:10-12]. Thus, Hubel and Wilson are not true comparators to Plaintiff as Hubel and Wilson may work more than 3.5 hours from time to time, but Plaintiff has worked far more than 3.5 hours each day for the past two years. Lastly, Plaintiff identified John Solmin as a white package car driver who was injured and was given a power steering vehicle by UPS. [Pl. at 94:7-95:19]. Plaintiff claims Solmin worked inside for a while and recently returned to package car driving. [Pl. at p. 99, ln 3-9]. UPS does not have record of any employee named John Solmin. Plaintiff failed to do identify similarly situated employees who were treated differently, Specifically, Plaintiff has not identified a single non-disabled or non-perceived as disabled, or non- black as to his race claims, package car driver who returned from workers’ compensation leave with permanent restrictions that did not allow the employee to perform the essential functions of [LNU] – who he claimed were given “additional jobs”, while Plaintiff was not, allegedly in retaliation for Plaintiff’s filing of a prior EEOC charge. Plaintiff has not made any claims of retaliation in this case, and thus these supposed comparators are not relevant to his claims in this litigation and are not addressed herein. Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 31 of 37 PageID 726 32 #51127300_v1 the package car driver job, but was allowed to work in a full time inside job of their choosing, without being required to bid in it, or otherwise obtain such job through the CBA. Therefore, Plaintiff’s discrimination claim must fail. See Blow v. Virginia College, 619 Fed. Appx. 859, 863 (11th Cir. 2015) (stating plaintiff’s “failure to identify comparators, and thus make out a prima facie case, is fatal to her discrimination claim” where employees identified were not involved in the same conduct as plaintiff); Publix, 2015 WL 310541 at * 4 (finding comparators were not similarly situated to the plaintiff and thus plaintiff could not establish a prima facie case of race discrimination); Cannon v. Dynacorp, 378 F. Supp. 2d 1332, 1341 (M.D. Ala. 2004) (granting summary judgment to employer where plaintiff could not establish that her supposed comparators engaged in actions similar to those she engaged in, but were treated differently). 6. Even if Plaintiff could establish a prima facie case of disability discrimination, UPS had a legitimate non-discriminatory reason for its actions and Plaintiff cannot show such reason is a pretext for discrimination. Even if Plaintiff could somehow show that he suffered an adverse employment action when UPS did not violate the CBA and create a full time inside position when he attempted to return from workers’ compensation leave in or around March 2013, and even if Plaintiff could establish a prima facie case of disability discrimination, UPS has articulated legitimate, nondiscriminatory reasons its actions in that it relied on the documentation provided by Plaintiff and his medical provider as to which jobs at UPS Plaintiff was able to perform, and abided by the terms of the CBA. “In general, the employer has an ‘exceedingly light burden’ in setting forth legitimate, non- discriminatory reasons for termination.” Woodbury v. Sears, Roebuck, & Co., 901 F. Supp. 1560, 1563 (M.D. Fla. 1995); Moore v. Hillsborough Cnty. Bd. of Comm'rs, 544 F. Supp.2d 1291, 1307 (M.D. Fla. 2008) (“Defendant's burden of articulating legitimate reasons ‘is exceedingly light; the defendant must merely proffer [legitimate] reasons, not prove them.’”). UPS has easily met this Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 32 of 37 PageID 727 33 #51127300_v1 burden. As discussed above, the information UPS first received from Dr. Rodriguez stated that he could not perform the essential job functions of the package car driver job. Thus, UPS suggested Plaintiff may want to apply for an ADA accommodation. When Plaintiff did finally request an accommodation, the information received from Dr. Rodriguez indicated that Plaintiff could perform the package car driver job, so UPS instructed him to contact HR to return to his package car driver job, but instead Plaintiff began the ADA accommodation process again. When Plaintiff and his doctor stated that Plaintiff could not perform the package car driver position, UPS worked with Plaintiff and the Union to find a reasonable accommodation that did not conflict with the CBA, which Plaintiff eventually accepted. Further, since that time, UPS has continued to work with Plaintiff to find him 8 hours of work per day. Indeed, for at least the last two years, Plaintiff has worked 8 hours per day. Plaintiff cannot show that UPS’s reliance on information provided by Dr. Rodriguez, and reliance on the provisions of the CBA, is a pretext for discrimination. See Willis v. Publix Super Markets, Inc., Case No. 8:13-cv-3110-T-30TGW, 2015 WL 310541 at *5 (M.D. Fla. Jan. 26, 2015) (granting summary judgment to employer and stating “[n]otably, a plaintiff’s subjective opinion that the defendant’s action was discriminatory, without supportive evidence, is insufficient to establish pretext to avoid summary judgment”). At no time was Plaintiff discriminated against because of his disability. Hickmon v. TECO Energy, No. 8:10-CV-1147-T- 30MAP, 2012 WL 39582, at *4 (M.D. Fla. Jan. 9, 2012) (granting summary judgment to employer where employee failed to identify one other non-disabled employee who was treated more favorably, and where employee pointed to no evidence in the record to demonstrate pretext, other than her suspicions that she was being discriminated against because of alleged disabilities). Accordingly, summary judgment should be granted on Plaintiff’s disability discrimination claim. B. Plaintiff’s Title VII and FCRA Race Discrimination Claims Fail as a Matter of Law. Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 33 of 37 PageID 728 34 #51127300_v1 For the same reasons that Plaintiff’s disability claim fails, UPS is entitled to summary judgment on Plaintiff’s race discrimination claims because he cannot establish that he suffered an adverse employment action, nor has he alleged that any similarly situated employees outside of his protected class were treated more favorably. Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer “to discriminate against any individual with respect to [his] compensation, terms, conditions, or privileges of employment, because of such individual’s race.” 42 U.S.C. § 2000e–2(a)(1). To establish a violation of Title VII, “a plaintiff must show that a challenged action was the result of intentional discrimination on the part of the defendant.” Sirpal v. Univ. of Miami, 509 Fed. Appx. 924, 926 (11th Cir. 2013). Like Plaintiff’s disability discrimination claims, a prima facie case of race discrimination may be established by either: direct evidence of discriminatory intent; statistical analysis showing a pattern of discrimination; or circumstantial evidence meeting the test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Washington v. Sch. Bd. of Hillsborough Cnty., 731 F.Supp. 2d 1309, 1317 (M.D.Fla. 2010); Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). Plaintiff, however, is unable to establish employment discrimination by any of these methods. While a prima facie case of race discrimination can be established by presenting direct evidence of discriminatory intent, see Zappa v. Wal-Mart Stores, Inc., 1 F. Supp. 2d 1354, 1356 (M.D. Fla. 1998), only the most blatant comments are enough to establish this, see LeBlanc v. TJK Companies, Inc., 214 F. Supp. 2d 1319, 1325 (S.D. Fla. 2002). “[R]emarks by non-decision makers or remarks unrelated to the decision-making process itself are not direct evidence of discrimination.” Kilgore v. Trussville Dev., LLC, No. 15-11850, 2016 WL 1138412, at *6 n.4 (11th Cir. Mar. 24, 2016) (quoting Standard, 161 F.3d at 1330). “[S]tatements that are open to more than one interpretation do not constitute direct evidence of racial discrimination” because they require Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 34 of 37 PageID 729 35 #51127300_v1 the trier of fact to make inferences. Carter v. Three Springs Residential Treatment, 132 F.3d 635, 642 (11th Cir. 1998). Here, Plaintiff has alleged that only one single comment related to race was made to him during his employment, and that was by a manager in 2010 who allegedly yelled at Plaintiff to “sit [his] black ass down.” [Pl. at 43, ln 1-6]. Even if this comment was made, it was made 3 years before Plaintiff returned to work following his second injury, by a manager who had no involvement whatsoever in Plaintiff’s return to work or his ADA accommodation process.13 Thus this alleged comment is nothing more than a stray remark, and cannot be found to constitute direct evidence of discrimination. Thus, no direct evidence of discrimination exists.14 Therefore, Plaintiff must seek to establish a prima facie case of race discrimination under the McDonnell Douglas test. See Zappa, 1 F.Supp.2d at 1356. Plaintiff may establish a prima facie case of race discrimination by showing that (1) he belongs to a protected class, (2) he was subjected to an adverse employment action, (3) his employer treated similarly situated employees outside his protected class more favorably, and (4) he was qualified to do the job. Holifield, 115 F. 3d at 1562. UPS does not dispute that Plaintiff belongs to a protected class. Plaintiff, however, was not subjected to an adverse employment action, has failed to identify any similarly situated employee outside of his protected class whom UPS treated more favorably,15 for the same reasons as discussed in detail above. Additionally, UPS and the Union have recently entered into two FT to PT Accommodation Agreements with two former package car drivers, both of whom are white, and both of whom were offered, and accepted, a part time inside position as a reasonable 13 Plaintiff could not recall any other issues with the supervisor, Gerald Iacono, who told him to “sit [his] black ass down” in 2010. [Pl. at 159:6-13]. 14 As with Plaintiff’s disability discrimination claim, the record evidence reflects no statistical proof of race discrimination. 15 Three of the comparators named are black – Roseman, Emmons and Whitfield. Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 35 of 37 PageID 730 36 #51127300_v1 accommodation. [Palacio at ¶ 26]. Plaintiff cannot show even one similarly situated, non-black employee who was treated more favorably than him, dooming his race discrimination claims. See Young, 992 F. Supp.2d at 838 (Plaintiff’s conclusory allegations, “based entirely on his own speculation and self-serving testimony were insufficient to demonstrate any genuine issue of material fact as to whether he was treated dissimilarly from white, similarly situated comparators, had he successfully provided any to the court”). Finally, Plaintiff cannot establish that he was qualified to do the package car driver job, based on the information provided by Dr. Rodriguez. Accordingly, Plaintiff can only establish one element of his prima facie case of race discrimination, and as a result, his claim fails. Even if Plaintiff could meet his burden of establishing the elements of his claim, UPS has a legitimate, non-discriminatory reason for its actions, as discussed above – its reliance on Plaintiff’s and Dr. Rodriguez’s representations that Plaintiff could not be returned to the package car driver job and the provisions of the CBA. Therefore, UPS is entitled to summary judgment on Plaintiff’s race discrimination claim. VI. CONCLUSION For the foregoing reasons, Defendant, United Parcel Service, Inc., respectfully requests that the Court grant Summary Judgment in its favor and against Plaintiff on all of his claims. Counsel for Defendant UPS HOLLAND & KNIGHT LLP By: /s/Christine F. Gay KELLY-ANN G. CARTWRIGHT Florida Bar No. 892912 email: kelly-ann.cartwright@hklaw.com ERIKA R. ROYAL Florida Bar No. 0154385 email: erika.royal@hklaw.com CHRISTINE F. GAY Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 36 of 37 PageID 731 37 #51127300_v1 Florida Bar No. 026009 email: christine.gay@hklaw.com 701 Brickell Avenue, Suite 3300 Miami, Florida 33131 305-374-8500 905-789-7799 (fax) CERTIFICATE OF SERVICE I Hereby Certify that on May 4, 2017, I electronically filed Defendant’s Redacted Motion for Summary Judgment and Incorporated Memorandum of Law with the Clerk of the Court. I also certify that the foregoing document is being served this day on all counsel of record identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. /s/Christine F. Gay SERVICE LIST Robert H. Grizzard, II Robert H. Grizzard, II, P.A. Florida Bar No. 192466 232 N. Massachusetts Avenue Post Office Box 992 Lakeland, Florida 33802 863-682-8181 RHGrizzardLaw@ix.netcom.com Counsel for Plaintiff Case 8:15-cv-02792-SCB-JSS Document 54 Filed 05/04/17 Page 37 of 37 PageID 732