Perez v. Cigna Health and Life Insurance Company

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

PEDRO PEREZ,

Plaintiff,

vs. Case No. 8:19-cv-951-T-33AEP

CIGNA HEALTH AND LIFE

INSURANCE COMPANY,

Defendant.

______________________________/

ORDER

This matter comes before the Court upon consideration of

Defendant Cigna Health and Life Insurance Company’s Motion

for Summary Judgment (Doc. # 46), filed on January 3, 2020.

Pro se Plaintiff Pedro Perez responded in opposition on

February 4, 2020. (Doc. # 54). Cigna filed a reply on February

18, 2020 (Doc. # 65), as well a Rule 56(c) objection. (Doc.

# 66). Perez responded to the Rule 56(c) objection on March

2, 2020. (Doc. # 68). For the reasons that follow, the Motion

is granted.

I. Background

Perez worked for Cigna, a health and life insurance

company, as a senior business analyst in Connecticut

beginning in August 2014. (Perez Dep. Doc. # 47-1 at 37:20-

24). Perez’s job involved resolving “tickets” assigned to him

regarding problems with Cigna’s pharmacy systems, addressing

customer needs, providing support to the call center, and

“acting as a liaison between IT and the business.” (Id. at

35:2-13; Doc. # 52-5 at 1).

In 2016, Perez began working from home and soon after

moved to Tampa, Florida. (Perez Dep. Doc. # 47-1 at 37:14-

38:7). To become a work-at-home employee, Perez signed a work-

at-home agreement, agreeing to comply with Cigna’s work-at-

home policy. (Id. at 39:20-40:23, 41:3-7, 59:5-21; Doc. # 50-

2 at 8-11, 17-27). Cigna pays for the business internet

connection for work-at-home employees and provides the modem

needed for a direct connection with Cigna’s C-live system.

(Perez Dep. Doc. # 47-1 at 60:6-61:2; Doc. # 52-5 at 6; Doc.

# 52-6 at 2). During his deposition, Perez acknowledged that,

in August 2018, he did not inform his service provider,

Brighthouse, that he had moved to a new address for purposes

of his business internet service. (Perez Dep. Doc. # 48-1 at

171:7-22; Doc. # 52-6 at 3).

Perez’s various supervisors over the years have noted

that Perez did not always timely complete assignments and had

issues with organizing and prioritizing issues that needed to

be addressed. (Doc. # 52-2 at 1; Doc. # 52-3 at 1-2; Doc. #

52-5 at 1-3).

Perez’s wife, Glenda, also worked at Cigna in a different

role. (Doc. # 54-2 at 1). Her employment was terminated on

July 27, 2017, and she initiated an arbitration against Cigna

for racial discrimination and retaliation in violation of

Title VII. (Id.). Eventually, Cigna obtained summary judgment

in that arbitration in July 2018. (Id.).

While his wife’s arbitration was still pending, in late

August 2017, Perez took spousal leave to support his wife.

(Perez Depo. Doc. # 47-1 at 80:5-20; Doc. # 54-1 at 1). At

the time, he told his then-supervisor, Grace Kania, that he

needed to support his wife who had filed a “wrongful suit”

against Cigna and that he would be a witness in her case.

(Perez Depo. Doc. # 47-1 at 80:5-84:22). When Perez returned

from leave in September 2017, Kania gave him a verbal warning

concerning his issues with consistency, timeliness, and

organization. (Doc. # 52-2 at 1; Perez Dep. Doc. # 47-1 at

131:3-18). This verbal warning was motivated in part by

Perez’s failure to have a co-worker cover his assignments

while he was out on leave. (Doc. # 52-2 at 12; Perez Dep.

Doc. # 47-1 at 131:3-18).

Subsequently, in December 2017, Kania issued Perez a

written warning known as a Performance Corrective Action Plan

(PCAP) regarding his continued issues. (Doc. # 52-2 at 1;

Perez Dep. Doc. # 48-1 at 234:7-9). As a result of the

December 2017 PCAP, Perez filed a complaint through Cigna’s

internal system — Speak Easy — on December 21, 2017, alleging

that the PCAP was inappropriate. (Doc. # 52-4 at 2, 6, 8).

Marjorie Stein, from Cigna’s Employee Relations Department,

investigated the Speak Easy complaint and spoke to Perez on

December 27, 2017. (Id. at 2). Initially, Perez told Stein he

wanted to overturn the PCAP; however, later in the

conversation, Perez admitted “he was not meeting the

performance expectations of his role as set out as the

justification of the PCAP” and thus was only challenging “the

timing of when [the PCAP] was sent to him.” (Id.). Perez “also

stated he was being retaliated against because his wife had

requested arbitration with the company.” (Id.).

Stein then contacted Kania to discuss Perez’s

allegations. (Id. at 3). Kania explained her reasons for

issuing the PCAP, including Perez’s continuing performance

deficiencies. (Id.). Stein asked Kania whether “she was aware

[] Perez’s wife had been terminated from Cigna and brought

legal action against” Cigna, but Stein “did not mention what

type of legal action [] Perez’s wife had raised.” (Id.). Kania

“denied knowing either that [Perez’s] wife had been

terminated or that she had asserted a legal claim against

Cigna.” (Id.). Ultimately, Stein determined that the issuance

of the PCAP was appropriate. (Id.).

Then, in January 2018, Kania and Kara Shipman — “a second

level up supervisor for . . . senior business analysts” like

Perez — reviewed the PCAP. (Doc. # 52-2 at 2; Doc. # 52-3 at

2). The options were to “remove him from the PCAP for improved

performance,” “extend the PCAP to allow more time to improve,”

or “proceed to termination.” (Doc. # 52-3 at 2). Ultimately,

Kania and Shipman decided to extend the PCAP because “he had

not met his goals, but [they] wanted to give him another

opportunity because he generally had a positive attitude and

. . . wanted to improve.” (Id.). The PCAP extension was

delivered to Perez on January 31, 2018. (Doc. # 52-2 at 2).

At this time, Kania “was not aware of the nature of [] Perez’s

wife’s legal action but had only been told by [] Stein that

she had supposedly raised a legal claim.” (Id.). The decision

to extend the PCAP “had nothing to do with [] Perez’s wife’s

legal action.” (Id.; Doc. # 52-3 at 1).

On April 18, 2018, Perez contacted Shipman and requested

time off to deal with “personal issues” and mentioned “he was

being deposed in connection with his ‘wife’s case.’” (Doc. #

52-3 at 2). However, Shipman “did not know what his ‘wife’s

case’ was and [she] did not [for] ask additional detail[s].”

(Id.). Perez acknowledged that he did not tell Shipman that

his wife’s claim was related to Title VII. (Perez Dep. Doc.

# 47-1 at 147:25-149:7). Sometime that month, Perez was

deposed as a witness for his wife’s arbitration against Cigna.

(Id. at 144:15-20, 151:12-14).

Perez came back to work on June 1, 2018. (Doc. # 52-3 at

3). On June 4, 2018, Perez had a phone call with Shipman and

his new direct supervisor, Lashonda Bowens, who was replacing

Kania. (Id.; Doc. # 52-5 at 1-2).

Bowens decided to renew Perez’s PCAP and gave Perez the

extension on June 22, 2018. (Doc. # 52-5 at 2; Doc. # 52-3 at

3). As a result of this PCAP extension, Perez filed another

Speak Easy complaint. (Doc. # 52-4 at 2-3). Perez alleged

that the PCAP was extended in retaliation because he had been

“a witness” for his wife’s case. (Id.). Stein investigated

this Speak Easy complaint but ultimately determined that the

PCAP extension was not retaliatory. (Id.).

Around this time, in August of 2018, Perez helped his

wife hire a process server to serve Cigna with a motion to

vacate the arbitration award. (Perez Dep. Doc. # 47-1 at

145:8-146:19, 150:21-24; Doc. # 54-2 at 2). Perez did not

tell anyone at Cigna in advance that he would be helping his

wife procure a process server. (Perez Dep. Doc. # 47-1 at

150:20-151:2). Perez initially testified in his deposition

that, when he was having internet connection difficulties in

August 2018, he told Bowens that he “believe[d] [his] internet

connection had to do with [him] following up with a process

server.” (Id. at 150:20-151:10). Yet, upon further

examination, Perez admitted that he merely told Bowens that

he believed the connection disruption was “intentional” and

that Bowens “did not want to engage any further on the topic.”

(Perez Dep. Doc. # 48-1 at 214:23-215:23).

On Friday August 17, 2018, Perez notified Cigna that he

had lost his network connection and provided Cigna a phone

number at which to reach him. (Doc. # 52-6 at 1, 5-11; Doc.

# 52-5 at 4). After notifying Cigna of the issue, Perez did

no further work that day. (Doc. # 52-5 at 7-8; Perez Dep.

Doc. # 48-1 at 173:12-174:15).

A Cigna IT employee, Nick Pedulla, was assigned to

resolve Perez’s connection issue. (Doc. # 52-6 at 1, 5-11).

Over the next five days, Pedulla and Bowens called Perez

numerous times at the phone number he gave, as well as at

other phone numbers Cigna had on file for him. (Id. at 1-11;

Doc. # 52-5 at 4-7). Perez did not answer most of the phone

calls. (Doc. # 52-6 at 1-11; Doc. # 52-5 at 4-7).

In his declaration, Perez explained that he had

difficulty remaining in contact with Bowens and Pedulla

because he has “limited resources” and he “rel[ied] on a pre-

paid phone app that worked only over WIFI and [he] lived in

a remote area requiring [him] to drive five minutes out to a

local dentist office” to use that office’s public WIFI to

contact Bowens and Pedulla by phone or email. (Doc. # 54-1 at

2). At some point during the week of August 20, Perez told

Bowens over voice mail that he “did not have enough money to

connect with her until pay period August 23, 2018.” (Id.).

Mid-day Monday, August 20, 2018, Perez left Bowens a

voicemail asking her to email him at a private email address.

(Doc. # 52-5 at 4). Bowens did so, explaining that she had

just attempted to call Perez again with no answer and

providing Perez with Pedulla’s phone number. (Id. at 4, 47).

She asked that he “[p]lease connect with [Pedulla] ASAP so he

[could] get [Perez] back up and running” and also gave Perez

her cell phone number. (Id.). Because Perez did not respond,

Bowens emailed Perez again three hours later. (Id. at 4-5,

46). In that email, she instructed Perez to provide effective

contact information before 9:30 am on Tuesday, August 21.

(Id.).

Because Perez did not respond by 9:30 am on August 21,

Bowens called him but Perez did not answer. (Doc. # 52-5 at

5). Perez responded by email at 12:15 pm that afternoon,

stating that he was “heading to a local library now and can

use one of their phones.” (Id. at 5, 46).

Yet, Perez never contacted Bowens or Pedulla on Tuesday

afternoon. (Id. at 5-6; Doc. # 52-6 at 2). Bowens then sent

Perez another email at 5:41 pm on Tuesday, directing him to

go to work at the Tampa Cigna office by 9:00 am on Wednesday,

August 22. (Doc. # 52-5 at 5, 45-46). Under Perez’s work-at-

home agreement, he could be “required by [his] manager to

work in a Company office on a day [he] would normally work at

home” and could be required “to spend more time than planned

(i.e. up to the entire workweek) in an office due to workload

or business need.” (Id. at 6, 60).

But Perez did not go into the Tampa Cigna office on

Wednesday and did not contact Bowens to inform her that he

was not able to go into the office. (Id. at 6-7; Perez Dep.

Doc. # 48-1 at 200:12-14). Nor did Perez go into the Tampa

Cigna office on Thursday, August 23, and he performed no work

that day. (Doc. # 52-5 at 7; Perez Dep. Doc. # 48-1 at 204:16-

205:6).

Perez did report to the Tampa Cigna office on Friday,

August 24, 2018. (Doc. # 52-5 at 7-8; Doc. # 52-6 at 2-3). He

worked there for about one hour until Pedulla “explained that

he needed [Perez] to go to his home location to look at the

issue.” (Doc. # 52-6 at 2). Perez then returned home and spoke

with Pedulla on the phone, but they were unable to reestablish

Perez’s work internet connection. (Id. at 3; Doc. # 54-1 at

2-3). After he was unable to reestablish the internet

connection at his home that afternoon, Perez did not return

to the Tampa Cigna office and did no further work on August

24, 2018. (Doc. # 52-5 at 8).

In light of Perez’s failure to appear at the Tampa Cigna

office on Wednesday and Thursday, his working only one hour

during that week, and failure to maintain communication,

Bowens decided to terminate Perez’s employment. (Id.; Doc. #

52-3 at 4). At the time that Bowens extended Perez’s PCAP in

June 2018, she “had no idea that [] Perez had a wife who had

previously worked at Cigna or that she had previously made a

claim under Title VII against Cigna.” (Doc. # 52-5 at 2-3).

Furthermore, Bowens maintains that her “decision to terminate

[] Perez’s employment had nothing to do with the fact that

his wife had allegedly raised EEO complaints against Cigna in

the past.” (Id. at 8).

Perez initiated this action on April 22, 2019, asserting

claims for retaliation under Title VII and the Florida Civil

Rights Act (FCRA). (Doc. # 1). Cigna filed its answer on June

27, 2020. (Doc. # 10). The case then proceeded through

discovery. The parties mediated before Judge Anthony E.

Porcelli, United States Magistrate Judge, on February 11,

2020, but reached an impasse. (Doc. # 62).

Cigna now seeks entry of summary judgment on all of

Perez’s claims. (Doc. # 46). The Motion is ripe for review.

II. Legal 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). A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996)(citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are

no genuine issues of material fact that should be decided at

trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

(11th Cir. 2004)(citing Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)). “When a moving party has discharged its

burden, the non-moving party must then ‘go beyond the

pleadings,’ and by its own affidavits, or by ‘depositions,

answers to interrogatories, and admissions on file,’

designate specific facts showing that there is a genuine issue

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995)(quoting Celotex, 477 U.S. at 324).

If there is a conflict between the parties’ allegations

or evidence, the non-moving party’s evidence is presumed to

be true and all reasonable inferences must be drawn in the

non-moving party’s favor. Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder

evaluating the evidence could draw more than one inference

from the facts, and if that inference introduces a genuine

issue of material fact, the court should not grant summary

judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s

response consists of nothing “more than a repetition of his

conclusional allegations,” summary judgment is not only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

III. Analysis

A. Rule 56(c) Objection

Preliminarily, the Court must address Cigna’s Rule 56(c)

objection to the materials Perez relies on in his response.

(Doc. # 66). “Once a party makes a Rule 56(c)(2) objection,

‘the burden is on the proponent to show that the material is

admissible as presented or to explain the admissible form

that is anticipated.’” Campbell v. Shinseki, 546 F. App’x

874, 879 (11th Cir. 2013)(quoting Fed. R. Civ. P. 56, advisory

committee’s note to 2010 amendments).

Here, Cigna argues that various responses by Perez to

Cigna’s statement of material facts, many of Perez’s own

statements of material fact, and exhibits should be stricken.

1. Improper Record Citations, Legal Argument, and

Immaterial Facts

Cigna complains that Perez fails to provide pinpoint

citations to the record, makes improper legal argument, and

includes immaterial facts in his response to Cigna’s

statement of material facts and in his statement of additional

material facts. (Doc. # 66 at 4).

The Court agrees with Cigna that, at numerous points in

his response to Cigna’s statement of material facts and his

recitation of additional material facts, Perez fails to

provide pinpoint citations — instead citing to an exhibit in

its entirety. See, among others, (Doc. # 54 at ¶¶ 10, 16-18,

37, 42, 46-56, 64-69). And, at other points, Perez cites to

exhibits or portions of his deposition that do not refute

Cigna’s statement of material facts or do not support his

asserted material facts. See, among others, (Doc. # 54 at ¶¶

4, 5, 6, 14, 16-20, 24, 26-31, 54, 58, 64). Thus, as the Court

warned the parties in its Order regarding motions for summary

judgment, the Court will deem admitted the portions of Cigna’s

statement of material facts for which Perez failed to provide

pinpoint citations or relevant citations in response. (Doc.

# 24 at 1-3). The Court will not credit Perez’s additional

statements of material fact that are not supported by pinpoint

citations or for which he cited evidence that does not relate

to the asserted material fact.

Nor will the Court credit Perez’s legal arguments that

he asserts as material facts at certain points. See, among

others, (Doc. # 54 at ¶¶ 37, 45-46). The Court previously

advised the parties to refrain from including legal argument

in their statements of material fact. See (Doc. # 24 at

2)(“Legal argument should not be included in the statement of

material facts.”). Thus, to the extent Perez makes legal

argument in his statement of material facts, the Court will

ignore such improper legal argument.

However, the Court is less concerned with Perez’s

statements of material fact that Cigna deems immaterial to

the issues before the Court. The Court is cognizant that Perez

is a pro se litigant unfamiliar with drafting briefs and

limiting factual allegations to those relevant at summary

judgment. To the extent any material facts asserted by the

parties are immaterial to the issues before the Court, the

Court will simply not consider such immaterial facts in its

analysis.

2. Unauthenticated Exhibits

According to Cigna, “[m]any of the exhibits [Perez]

filed as summary judgment evidence and relies upon to support

his proposed facts cannot be authenticated and, for that

reason alone, cannot be relied upon by this Court.” (Doc. #

66 at 11). Cigna asserts that “Perez has no personal knowledge

of such documents outside this litigation and any witness who

could authenticate such documents has not provided testimony

in this matter and resides more than 75 miles outside this

judicial district and cannot be compelled by [Perez] to attend

trial.” (Id.); see also Fed. R. Civ. P. 45(c)(1)(A)(“A

subpoena may command a person to attend a trial, hearing, or

deposition only as follows: (A) within 100 miles of where the

person resides, is employed, or regularly transacts business

in person; or (B) within the state where the person resides,

is employed, or regularly transacts business in person, if

the person (i) is a party or a party’s officer; or (ii) is

commanded to attend a trial and would not incur substantial

expense.”).

“At this stage — on summary judgment — [Perez] is not

required to furnish evidence in admissible form but only such

evidence that can be reduced to admissible form at trial.”

McLeod v. Field Asset Servs., LLC, No. CV 15-00645-KD-M, 2017

WL 338002, at *2 (S.D. Ala. Jan. 23, 2017). Still, now that

Cigna has objected that Perez cannot reduce the exhibits in

question to admissible form at trial, “[t]he burden is on

[Perez] to show that the material is admissible as presented

or to explain the admissible form that is anticipated.” Fed.

R. Civ. P. 56, Adv. Comm. Notes, “Subdivision(c)” (2010

Amendments).

Perez does not address Cigna’s argument head on. Rather,

he merely cites inapplicable case law decided at the motion

in limine stage. (Doc. # 68 at 1-3). Perez urges that he

“should be given the chance to elicit testimony in an

admissible way during trial,” but gives no explanation of how

he will be able to authenticate or introduce the challenged

exhibits at trial. (Id. at 3).

Thus, Perez has not met his burden as proponent of the

challenged exhibits “to show that the material is admissible

as presented or to explain the admissible form that is

anticipated.” Campbell, 546 F. App’x at 879. Indeed, the

majority of witnesses needed to authenticate many of Perez’s

exhibits live in Connecticut — outside the Court’s subpoena

power — and have not been deposed. The Court sustains Cigna’s

objection to Perez’s Exhibits B, D, E, F, G, H, I, J, L, M,

and O. The Court will not consider these exhibits in resolving

the summary judgment motion.

3. Sham Affidavit

Cigna argues that Perez’s declaration should be

disregarded as a “sham affidavit” to the extent it conflicts

with his prior deposition testimony. (Doc. # 66 at 12-15).

“The ‘sham affidavit’ rule is designed to prevent a party

from fabricating material issues of fact in response to a

motion for summary judgment.” Merritt v. Hub Int’l Sw. Agency

Ltd., No. 1:09-CV-00056-JEC, 2011 WL 4026651, at *2 (N.D. Ga.

Sept. 12, 2011)(citing Van T. Junkins & Assocs., Inc., v.

U.S. Indus., Inc., 736 F.2d 656, 656–57 (11th Cir. 1984)),

aff’d, 466 F. App’x 779 (11th Cir. 2012). “It permits a

district court to disregard an affidavit that ‘contradicts

[the affiant’s prior] testimony on deposition.’” Id.

(citation omitted). “For the rule to apply, the affidavit

must be ‘inherently inconsistent’ with the affiant’s

deposition testimony.” Id. “A statement in an affidavit that

is merely at odds with earlier deposition testimony is not

grounds for exclusion.” Id. The Court is mindful that the

sham affidavit rule “should be applied sparingly.” Kernel

Records Oy v. Mosley, 694 F.3d 1294, 1300 n.6 (11th Cir.

2012).

Cigna points out four instances in which Perez’s

declaration conflicts with his earlier deposition testimony

— two of which are particularly relevant to the issues to be

decided on summary judgment. First, Perez states in his

declaration that he told his supervisor at the time of his

termination, Bowens, that his wife had filed a discrimination

suit against Cigna and that he was having his deposition taken

in support of his wife’s claim. (Doc. # 54-1 at 1-2). Yet,

when Perez was asked during his deposition who he had told

that his wife was bringing a discrimination claim and that he

was being deposed, Perez did not list Bowens. (Perez Dep.

Doc. # 47-1 at 147:25-149:19). Thus, the declaration is

inconsistent with Perez’s testimony on this point.

Next, Perez stated in his declaration that he told Bowens

that the disruption to his internet service was “a result of

[his] part in serving Cigna with a new lawsuit” (Doc. # 54-1

at 2). At one point in his deposition, Perez testified

similarly, saying that he informed Bowens “that [he]

believe[d] [his problem with his] Internet connection had to

with [him] following up with a process server.” (Perez Dep.

Doc. # 47-1 at 150:25-151:10). But, upon further examination

during the deposition, Perez admitted that he only told Bowens

that he believed the connection disruption was “intentional”

and that Bowens “did not want to engage any further on the

topic.” (Perez Dep. Doc. # 48-1 at 214:23-215:23).

Thus, the Court credits only the latter testimony in

which Perez admitted he only mentioned his belief that the

internet disruption was “intentional,” without specifying

alleged retaliation based on his involvement with a process

server. See Watson v. Forest City Commercial Mgmt., Inc., No.

1:13-CV-3919-LMM, 2014 WL 11281384, at *1 n.1 (N.D. Ga. Dec.

16, 2014)(“Plaintiff contends in her Statement of Material

Facts, that a genuine issue of fact exists as to how long the

incident lasted by pointing to deposition testimony that

Plaintiff was asked ‘Do you know how long were [sic] you

fighting approximately?’ and she responded ‘No, sir.’ That

testimony contradicts Plaintiff’s earlier deposition

testimony, in which she agreed ‘[the fight] was over in an

instant,’ and ‘it [was] just a matter of seconds.’ This Court

disregards Plaintiff’s testimony that she did not know how

long the fight lasted.”), aff’d, 618 F. App’x 584 (11th Cir.

2015); Tang v. Jinro Am., Inc., No. CV-03-6477 (CPS), 2005 WL

2548267, at *4 (E.D.N.Y. Oct. 11, 2005)(“In his deposition

testimony, Plaintiff states both that he signed the

agreement, and that he did not sign the agreement. Such

inconsistency is not sufficient to create a ‘genuinely

disputed’ issue of fact if only because a statement against

one[’]s interest trumps one which is self-serving.”). And

this deposition testimony is in conflict with Perez’s

declaration.

Notably, Perez failed to address the sham affidavit

argument at all in his response. Thus, it appears that Perez

does not maintain that his declaration and prior testimony

can be harmonized.

In light of the inherent conflicts between the

declaration and deposition testimony and Perez’s failure to

address these conflicts, the Court sustains Cigna’s objection

regarding portions of Perez’s declaration. Where Perez’s

declaration is in conflict with his earlier deposition

testimony, the Court will consider only Perez’s deposition

testimony.

4. Inadmissible Exhibits

Cigna complains that some of Perez’s exhibits are not

admissible and should not be considered at summary judgment.

(Doc. # 66 at 15-16). First, Cigna objects to Perez’s citation

to its objections and answers to Perez’s first and second

requests for production of documents because “[r]esponses to

requests for production are not admissible at trial and thus,

not admissible at the summary judgment stage.” (Id. at 15;

Doc. # 54-4; Doc. # 54-6). But Cigna cites no case law to

support that its objections and answers to Perez’s requests

for document production are not admissible evidence. Thus,

the Court will not exclude this evidence.

Next, Cigna argues that Perez’s exhibit containing the

Department of Economic Opportunity’s file on Perez’s claim

for unemployment benefits is “entirely irrelevant to the

claims in this action and should be excluded.” (Doc. # 66 at

16). Further, Cigna notes it did not participate in the

proceedings concerning Perez’s unemployment benefits at all

and that, under Florida law, “any finding or final order by

a hearing officer is not conclusive or binding in a separate

or subsequent action.” (Id.); see also Fla. Stat. § 443.0315

(“Any finding of fact or law, judgment, conclusion, or final

order made by a hearing officer, the commission, or any person

with the authority to make findings of fact or law in any

proceeding under this chapter is not conclusive or binding in

any separate or subsequent action or proceeding, other than

an action or proceeding under this chapter . . .”). The Court

agrees that Perez’s exhibit including the record regarding

his unemployment claim is not admissible. See Muller-Davila

v. Care Placement Home Health Agency, Inc., No. 8:17-cv-505-

T-16AAS, 2018 WL 1565457, at *3 (M.D. Fla. Mar. 30,

2018)(“[T]he Court finds that the decision of the appeals

referee, which denied Plaintiff’s reemployment assistance

benefits, should not be considered on summary judgment.”).

Finally, Cigna contends that Perez cannot rely on

Cigna’s privilege log because “it is undisputed a privilege

log is not substantive evidence that can be considered on

summary judgment.” (Doc. # 66 at 16). The Court agrees.

Cigna’s privilege log, which includes brief references to

emails Perez considers relevant evidence, cannot be used to

support Perez’s claims. See Goldman v. Bracewell & Guiliani,

L.L.P., 183 F. App’x 873, 873 n.1 (11th Cir. 2006)(affirming

refusal to admit privilege log as substantive evidence).

In summary, the Court sustains in part and overrules in

part Cigna’s objection as set forth above. However, the Court

notes that the ultimate result of this case would be the same

even if the Court did not exclude any of Perez’s proffered

evidence or deem admitted any of Cigna’s statements of

material fact. As discussed below, Perez has presented no

argument or evidence at all regarding pretext and, thus, even

if he could have established a prima facie case with his

excluded evidence, his claim would nevertheless fail.

B. The Substantive Claims

Perez asserts claims for retaliation under Title VII and

the FCRA. “The Florida courts have held that decisions

construing Title VII are applicable when considering claims

under the Florida Civil Rights Act, because the Florida act

was patterned after Title VII.” Harper v. Blockbuster Entm’t

Corp., 139 F.3d 1385, 1387 (11th Cir. 1998). Indeed, “[n]o

Florida court has interpreted the Florida statute to impose

substantive liability where Title VII does not.” Id. Thus,

the Court can address both claims with the same analysis.

The burden-shifting framework announced in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), applies to Title

VII retaliation cases. Jacomb v. BBVA Compass Bank, No. 18-

11536, 2019 WL 5692666, at *3 (11th Cir. Nov. 4, 2019)(citing

Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181 (11th

Cir. 2010)). Under the McDonnell Douglas framework, the

plaintiff employee bears the initial burden of establishing

a prima facie case of retaliation, which creates a rebuttable

presumption that the employer acted illegally. McDonnell

Douglas, 411 U.S. at 802–03. “If the employee meets this

burden, the burden of production shifts to the employer to

articulate a legitimate, non-retaliatory reason for the

adverse employment action.” Jacomb, 2019 WL 5692666, at *3.

“If the defendant carries this burden, the employee must

demonstrate that the employer’s reason was merely pretext for

retaliation.” Id.

1. Prima Facie Case

“[A] plaintiff alleging retaliation must first establish

a prima facie case by showing that: (1) he engaged in a

statutorily protected activity; (2) he suffered an adverse

employment action; and (3) he established a causal link

between the protected activity and the adverse action.”

Bryant v. Jones, 575 F.3d 1281, 1307–08 (11th Cir. 2009).

i. Protected Activity

“Under Title VII and the FCRA there are two categories

of protected activity: those activities that fit under the

‘opposition clause’ of 42 U.S.C. § 2000e–3(a) and those

activities that fit under the ‘participation clause.’” Bourne

v. Sch. Bd. of Broward Cty., 508 F. App’x 907, 910 (11th Cir.

2013)(citation omitted). “A plaintiff can show participation

in a protected activity by demonstrating that [he] had a

subjective, good-faith belief that [his] employer was engaged

in unlawful employment practices and that [his] belief was

objectively reasonable in light of the facts and record

presented.” Brown v. City of Opelika, 211 F. App’x 862, 863

(11th Cir. 2006).

Additionally, a plaintiff may proceed under the

associational theory of discrimination. This theory applies

when an employee who is close to the plaintiff employee, such

as a relative, engages in protected activity and the defendant

employer then retaliates against that other employee by

taking adverse action against the plaintiff employee. See

Thompson v. N. Am. Stainless, LP, 562 U.S. 170

(2011)(recognizing that a plaintiff had stated a viable Title

VII retaliation claim based on allegations that he was fired

because of an EEOC charge filed by his fiancée against their

common employer).

Cigna argues that Perez cannot base his retaliation

claim on the associational theory of discrimination – that

is, that Cigna retaliated against Perez’s wife by taking

adverse employment actions against Perez. (Doc. # 46 at 11-

13). According to Cigna, Perez has argued that “Cigna’s

illegal motive was to retaliate against him, not his wife”

and Perez’s wife “was not an employee of Cigna when the

alleged and actionable retaliatory conduct took” place. (Id.

at 12-13).

In his response, Perez does not argue that he is

proceeding under the associational theory of discrimination,

under which the protected activity at issue would only be the

actions of his wife. Rather, he “seeks a determination from

the trier of fact that the decision to sever employment was

motivated by an intent to retaliate against him for having

participated in protected activity,” including “informal

contact by [Perez] with EEO Coordinator Marjorie Stein.”

(Doc. # 54 at 11-12). This is consistent with Perez’s

complaint in which he merely alleged that he was retaliated

against for his own protected activity in “complain[ing] of

discrimination internally to Human Resources and ongoing

participation in Ms. Perez’s litigation.” (Doc. # 1 at 7-8).

Because Perez alleges he was retaliated against because of

his own protected activity — rather than his wife’s protected

activity — the associational theory does not apply.

Regardless of the inapplicability of the associational

theory, Cigna concedes that Perez’s other alleged conduct

“could constitute” protected activity for Perez’s prima facie

case. (Doc. # 46 at 13). Specifically, Perez’s conduct that

qualifies as protected activity includes (i) his informing

Kania in late August 2017 that he was going on leave to

support his wife who had filed a “wrongful suit” against Cigna

and that he would be supporting her case; (ii) his deposition

testimony in his wife’s arbitration in April 2018; and (iii)

his helping his wife hire a process server to serve Cigna in

August 2018. (Perez Depo. Doc. # 47-1 at 80:5-20, 146:20-

151:20). Also, Perez submitted complaints through Cigna’s

Speak Easy system in December 2017 and June 2018, relating to

— in Perez’s words — “management’s underlying retaliatory

action/behaviors from a recent leave of absence and regarding

my activity on my wife’s claim against Cigna.” (Doc. # 52-4

at 2-4, 8-13; Doc. # 57-1 at 14).

Thus, taking all the evidence in Perez’s favor, Perez

has satisfied the protected activity element of his prima

facie case.

ii. Adverse Employment Action

“A materially adverse action in the context of a Title

VII retaliation claim includes any action that would have

‘dissuaded a reasonable worker from making or supporting a

charge of discrimination.’” Jacomb, 2019 WL 5692666, at *3

(quoting Crawford v. Carroll, 529 F.3d 961, 973–74 (11th Cir.

2008)).

The Court must first address what alleged adverse

employment actions form the basis of Perez’s claims. Cigna

identifies five alleged adverse employment actions Perez

described in his complaint and his deposition: (i) the verbal

warning on September 27, 2017; (ii) the PCAP issued on

December 20, 2017; (iii) the PCAP extension on January 31,

2018; (iv) the second PCAP extension on June 22, 2018; and

(v) Perez’s termination. (Doc. # 46 at 13). Cigna argues that

the first three adverse employment actions are time barred

under Title VII and the first adverse employment action is

also time barred under the FCRA. (Id.).

The Court need not address whether the earliest adverse

employment actions are time barred, however, because Perez no

longer bases his claims on those actions. Indeed, in his

response, Perez only addresses his termination as the basis

of his retaliation claim. Specifically, Perez states: “At

this juncture, the Court’s role is simply to ascertain whether

there exists any factual dispute over the motivation behind

the termination of Plaintiff’s employment.” (Doc. # 54 at

11). And, in the “adverse action” section of his response,

Perez only identifies his termination as an adverse

employment action. (Id. at 12-13).1

Thus, Perez has abandoned any other adverse employment

actions as bases for his Title VII and FCRA claims. See

Edmondson v. Bd. of Trustees of Univ. of Ala., 258 F. App’x

250, 253 (11th Cir. 2007)(“In opposing a motion for summary

judgment, a party may not rely on her pleadings to avoid

judgment against her. There is no burden upon the district

court to distill every potential argument that could be made

based upon the materials before it on summary judgment.

1 In his response to Cigna’s Rule 56(c) objection, Perez

states that he “does not limit his claim to a review of the

termination decision.” (Doc. # 68 at 5). Even taking Perez’s

pro se status into account, this is too little, too late. The

response to the motion for summary judgment — filed a month

before the response to the objection — was Perez’s opportunity

to support or clarify his claims. At that juncture, he chose

to clearly limit his retaliation claim to the termination

decision.

Rather, the onus is upon the parties to formulate arguments;

grounds alleged in the complaint but not relied upon in

summary judgment are deemed abandoned.”); Powell v. Am.

Remediation & Envtl., Inc., 61 F. Supp. 3d 1244, 1253 n.9

(S.D. Ala. 2014)(“[W]here the non-moving party fails to

address a particular claim asserted in the summary judgment

motion but has responded to other claims made by the movant,

the district court may properly consider the non-movant’s

default as intentional and therefore consider the claim

abandoned.”), aff’d, 618 F. App’x 974 (11th Cir. 2015).

Therefore, the Court will proceed based on Perez’s

termination being the only adverse employment action at issue

in this case. See Gossard v. JP Morgan Chase & Co., 612 F.

Supp. 2d 1242, 1249 (S.D. Fla. 2009)(“In her Response to the

instant Motion, termination is the only adverse employment

action of which Plaintiff complains for her discrimination

claims. Thus, she has waived all other allegations of adverse

employment actions for her discrimination claims.”), aff’d,

389 F. App’x 936 (11th Cir. 2010). Limiting his claim to his

termination, Perez has satisfied the adverse employment

action element of his prima facie case. See McCray v. Wal-

Mart Stores, Inc., 377 F. App’x 921, 923 (11th Cir.

2010)(“Termination is an adverse employment action.”).

iii. Causation

“To show a causal link between the protected activity

and the adverse employment action, the plaintiff need show

only that the two ‘were not wholly unrelated.’” Jacomb, 2019

WL 5692666, at *3 (quoting Clover v. Total Sys. Serv., Inc.,

176 F.3d 1346, 1354 (11th Cir. 1999)). “At a minimum, the

plaintiff must show that the employer was aware that [he]

engaged in protected activity at the time it exercised the

adverse employment action.” Id.

Cigna argues that the decisionmaker regarding Perez’s

termination — his supervisor, Bowens — did not know that

Perez’s wife had filed a discrimination suit against Cigna.

(Doc. # 46 at 16; Doc. # 52-5 at 2-3, 5). Thus, Cigna reasons,

Perez cannot establish causation because Bowens did not know

about Perez’s protected activity when she made the decision

to terminate his employment. See Jacomb, 2019 WL 5692666, at

*3; see also McWhorter v. Nucor Steel Birmingham Inc., 304 F.

Supp. 3d 1185, 1194 (N.D. Ala. 2018)(“[A] close temporal

proximity is insufficient if the Defendant provides

‘unrebutted evidence’ that the decision maker in the adverse

employment action was unaware of the protected activity.”).

In light of the Court’s ruling sustaining in part Cigna’s

Rule 56(c) objection, there is no evidence in the record

creating a genuine issue of material fact regarding Bowens’

knowledge of Perez’s involvement in his wife’s discrimination

action against Cigna or Perez’s Speak Easy complaint accusing

Cigna of retaliation for such involvement. Thus, there is no

evidence to support that Bowens’ decision to terminate Perez

was motivated by retaliation over Perez’s protected activity.

To get around Bowens’ lack of knowledge, Perez also

argues in his response that “Shipman used [] Bowens as her

‘cat’s paw’ to discharge” him. (Doc. # 54 at 13). He states,

without citing to the record, that “Shipman recommended []

Perez’s discharge to [] Bowens.” (Id.).

“Several courts have held that even when the harasser in

a Title VII case is not the decisionmaker, if the plaintiff

shows that the harasser employed the decisionmaker as her

‘cat’s paw’ — i.e., the decisionmaker acted in accordance

with the harasser’s decision without herself evaluating the

employee’s situation . . . — causation is established.”

Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249

(11th Cir. 1998)(citation omitted). “In a cat’s paw

situation, the harasser clearly causes the tangible

employment action, regardless of which individual actually

signs the employee’s walking papers.” Id. “In effect, the

harasser is the decisionmaker, and the titular

‘decisionmaker’ is a mere conduit for the harasser’s

discriminatory animus.” Id.

Here, Perez has not presented any evidence that Bowens

fired Perez in August 2018 based on a biased recommendation

of Shipman’s. Rather, the evidence supports that Bowens

herself — not Shipman — made the decision to terminate Perez

because of his failure to work that week, though she informed

Shipman of her intention to terminate Perez. (Doc. # 52-5 at

9). Thus, Shipman did not act as a cat’s paw for Bowens.

In short, Perez has not shown that a genuine issue of

material fact exists as to the causation of his termination.

Therefore, Perez has failed to establish a prima facie case

of retaliation.

2. Pretext

Alternatively, even if Perez had established a prima

facie case regarding his termination, Cigna argues that it

had a legitimate non-discriminatory reason for the

termination. Cigna maintains that it terminated Perez because

he failed to perform any work for a week and was insubordinate

when he failed to appear at the Tampa office for work, as his

supervisor ordered. (Doc. # 46 at 21). This is a legitimate,

non-retaliatory reason for termination.

Thus, the burden shifts back to Perez to offer evidence

that Cigna’s explanation was merely pretext and that

retaliation was the real reason for his termination. To show

pretext, an employee must demonstrate “such weaknesses,

implausibilities, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action that

a reasonable factfinder could find them unworthy of

credence.” McCann v. Tillman, 526 F.3d 1370, 1375 (11th Cir.

2008)(quoting Cooper v. Southern Co., 390 F.3d 695, 725 (11th

Cir. 2004)). In addition to showing that the employer’s

proffered reason is false, the employee must also show that

retaliation was the real reason for the adverse employment

action. See Brooks v. Cty. Comm’n of Jefferson Cty., 446 F.3d

1160, 1163 (11th Cir. 2006).

This Perez has not done. Indeed, Perez failed to address

pretext at all in his response. (Doc. # 54). Thus, Perez has

abandoned any argument that Cigna’s proffered reason for his

termination was pretextual. See Powell, 61 F. Supp. 3d at

1253 n.9 (“[W]here the non-moving party fails to address a

particular claim asserted in the summary judgment motion but

has responded to other claims made by the movant, the district

court may properly consider the non-movant’s default as

intentional and therefore consider the claim abandoned.”).

Nor does the Court’s independent review of the record

reveal sufficient evidence that Cigna’s legitimate, non-

discriminatory reason for terminating Perez was false and

that the actual reason for Perez’s termination was

retaliation. Perez acknowledged that he did not work his

scheduled hours during the week of August 20 and did not go

into Cigna’s Tampa office on August 22 and 23, as he was

ordered to do by Bowens. (Perez Depo. Doc. # 48-1 at 200:12-

14, 204:16-205:6; Doc. # 52-5 at 5-9). And Perez has presented

no evidence of other employees who behaved similarly but were

not punished or other evidence suggesting that Cigna would

not normally terminate an employee for such behavior.

While Perez is clearly dissatisfied with Cigna’s

decision to terminate him for such an infraction, it is not

the Court’s place to question an employer’s judgment. See

Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354,

1361 (11th Cir. 1999)(“We are not in the business of adjudging

whether employment decisions are prudent or fair. Instead,

our sole concern is whether unlawful discriminatory animus

motivates a challenged employment decision.”). The Court

merely reviews whether an employer’s employment decision was

motivated by retaliation. Here, Perez has not created a

genuine issue of material fact as to that question.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) Defendant Cigna Health and Life Insurance Company’s Rule

56(c) objection (Doc. # 66) is SUSTAINED in part and

OVERRULED in part as set forth in this Order.

(2) Cigna’s Motion for Summary Judgment (Doc. # 46) is

GRANTED.

(3) The Clerk is directed to enter judgment in favor of Cigna

Health and Life Insurance Company and against Plaintiff

Pedro Perez on both counts of the complaint.

(4) Thereafter, the Clerk is directed to CLOSE THE CASE.

DONE and ORDERED in Chambers in Tampa, Florida, this

19th day of March, 2020.

tins Yr. Hnendey Cree

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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