Alvarez v. Lakeland Area Mass Transit District

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

BRENDA ALVAREZ,

Plaintiff,

v. Case No. 8:19-cv-1044-T-33SPF

LAKELAND AREA MASS TRANSIT

DISTRICT,

Defendant.

______________________________/

ORDER

This matter is before the Court on consideration of

Defendant Lakeland Area Mass Transit District’s Motion for

Summary Judgment (Doc. # 60), filed on April 15, 2020.

Plaintiff Brenda Alvarez responded on May 13, 2020. (Doc. #

65). For the reasons that follow, the Motion is granted.

I. Background

Alvarez — a woman in her sixties who suffers from anxiety

and depression — worked for the District, which operates as

“Citrus Connection,” as a senior financial reporting analyst

beginning on May 31, 2016. (Doc. # 60-2 at 1; Doc. # 66-20 at

1, 24). She reported directly to the District’s Chief

Financial Officer, David Persaud. (Doc. # 60-7 at 77:13-16;

Doc. # 60-2 at 1-2; Doc. # 66-20 at 1). Because Persaud had

interviewed Alvarez before she was hired, he had an

opportunity to observe her age and gender before hiring her.

(Doc. # 60-7 at 13:17 – 24). During the job interview, one

interviewer, Mr. Satchell, told Alvarez she was “experienced

for this position and [had] the experience [the District]

need[ed].” (Id. at 17:2-7). Alvarez felt this comment

referred to her age because “experience comes with age.” (Id.

at 17:8-12).

A. Complaint about Persaud

Soon after Alvarez was hired, the District’s financial

manager position (also called the controller) became vacant.

(Id. at 121:7 – 14). The District’s Executive Director, Tom

Phillips, encouraged Alvarez to apply for the position. (Id.

at 122:2–20, 123:24–124:8). Persaud similarly told Alvarez

that “the position was open and if [she] was interested to

apply.” (Id.). For various reasons, she did not apply for the

promotion. (Id. at 122:22-25, 124:14–125:1; Doc. # 66-20 at

6). Persaud eventually promoted Rhonda Carter to the

controller position. (Doc. # 60-2 at 2).

Following Carter’s promotion, Alvarez felt that Persaud

was “less receptive of” her and she began receiving emails

from him which she considered demeaning. (Doc. # 60-7 at

125:2–126:11). Phillips told Alvarez that Persaud “did not

understand why [she] was not applying for positions that would

promote [her].” (Id. at 124:16–125:1). Nevertheless, Alvarez

testified that she attributed the harsh emails “to the simple

fact that [Persaud] has an issue with women” and “doesn’t

like women questioning him.” (Id. at 126:12-18).

On July 7, 2017, Alvarez met with Phillips to complain

about Persaud’s conduct. (Doc. # 60-18 at 4; Doc. # 60-3 at

¶ 4; Doc. # 60-7 at 92:13–22). Alvarez’s complaint focused on

Persaud’s questioning why she travelled to the District’s

Bartow location, sending her offensive emails, and ridiculing

her in staff meetings. (Doc. # 60-7 at 94:25–95:20). Alvarez

attributed Persaud’s conduct to her gender, Persaud’s being

a bully, and his disappointment that she declined to apply

for the controller position. (Id. at 96:15–97:7). Alvarez

described Phillips’ demeaner during this meeting as “very

concerned” and respectful. (Id. at 98:6–17).

Phillips assigned Steve Schaible, Director of Human

Resources, to investigate Alvarez’s complaints. (Doc. # 60-

18 at 4; Doc. # 60-5 at ¶ 4; Doc. # 60-3 at ¶ 5). Alvarez

testified that she met with Schaible soon after and Schaible’s

notes reflect that he met with Alvarez on July 14, 2017. (Doc.

# 60-7 at 105:14 – p. 106:2; Doc. # 60-18 at 4). But, while

Alvarez acknowledged in her affidavit that Schaible “did

reach out to [her]” around this time, she represents that she

did not physically meet with Schaible until July 27, 2017.

(Doc. # 66-20 at 15-16).

Regardless, Alvarez testified that she repeated her

concerns about Persaud’s conduct toward her, related

Persaud’s conduct to her gender, and expressed concerns

regarding the accounting of grant expenses during this first

meeting with Schaible. (Doc. # 60-7 at 109:24–110:9; 111:11–

112:5). But, according to Schaible’s notes regarding the

meeting, Alvarez initially attributed Persaud’s conduct to

her declining to accept promotions into other positions.

(Doc. # 60-18 at 5; Doc. # 60-7 at 118:15–25). After Schaible

asked her whether the treatment was related to a protected

characteristic, Alvarez associated Persaud’s conduct toward

her with her gender. (Doc. # 60-18 at 5; Doc. # 60-7 at

113:12–114:5, 115:19–25). Alvarez did not attribute Persaud’s

actions to her age in her complaint to Schaible. (Doc. # 60-

5 at ¶ 5; Doc. # 60-18 at 4-5; Doc. # 60-7 at 117:1–12).

Alvarez complained to Schaible that Persaud acted

unprofessionally by sending her emails that included other

employees on the distribution. (Doc. # 60-18 at 5; Doc. # 60-

7 at 113:8–11). She also complained that Persaud “humiliated,

bullied, laughed at [her, and] made fun of [her] accounting

knowledge” during staff meetings. (Doc. # 60-7 at 115:1 – 5;

Doc. # 60-18 at 5). Based on these complaints, Schaible’s

investigation “focused upon [] Persaud’s interactions with []

Alvarez during staff meetings and his email exchanges with []

Alvarez.” (Doc. # 60-5 at ¶ 6). When Schaible concluded the

meeting, he requested that Alvarez advise him “if there is

something she remembers or wants to add” and reminded her to

provide the supporting documents she referenced during the

interview. (Doc. # 60-18 at 5).

Alvarez’s complaint about Persaud concerned three staff

meetings in particular and fourteen emails from Persaud that

Alvarez turned over to Schaible.

The first staff meeting occurred on a specified date. In

her answers to interrogatories, Alvarez described Persaud’s

conduct during the meeting:

[Persaud] singled me out by questioning an issue

that he and I had previously discussed in his office

. . . . As [Persaud] went around the table during

this meeting, he brought up my observation and

started laughing at me saying that the capital is

reflected in fund 1 and if I knew anything about

grant accounting, I would know this.

(Doc. # 60-67 at 11).

The second staff meeting occurred June 1, 2017. (Doc. #

60-7 at 182:13–183:12; Doc. # 60-31). Alvarez described the

incident:

There was [a] credit balance because the journal

entry wasn’t made. And it crossed over years. And,

so it showed up on this report. And, so [Persaud]

started laughing at me, asking me what was I going

to do with this journal entry; why, Ms. Alvarez, is

there a credit in this expense account. Accountants

know you can’t have a credit in an expense account.

So what are you going to do about it.

(Doc. # 60-7 at 185:12–20, 187:19–188:1; Doc. # 60-32).

The third and final relevant staff meeting took place on

July 24, 2017. (Doc. # 60-18 at 7). In relevant part, Alvarez

described the incident as:

[Persaud] went around the table . . . . [Persaud]

comes to me . . . [and] [o]ut of the blue he says,

you are [employee Elizabeth Rocha’s] backup in

Bartow, right[?] I said, no, not anymore. [Persaud]

said, why; you are supposed to be her backup and be

in Bartow. Why are you not in Bartow? I said,

because of your e-mail. [Persaud] said, I did not

tell you to not be in Bartow. I said, your e-mail

expressed concern about me being in Bartow with the

implication my time was better utilized being in

Lakeland. [Persaud] said, I never told you that. I

am confused. Then he asked me when I would have the

T.D. financials ready. I told him I was waiting on

journal entries. When Regina . . . said, she is

waiting on my journal entries, [Persaud] dropped

the conversation.

(Doc. # 60-7 at 216:21–218:7; Doc. # 60-38).

During his investigation, Schaible interviewed ten

employees who were present at the July 24 staff meeting. (Doc.

# 60-18 at 7-11). These employees confirmed that Persaud had

been “stern” with Alvarez at the staff meeting, but “did not

yell.” (Id. at 8). Only one employee remarked that Persaud

treats women differently than men. Specifically, employee

Regina Mauras told Schaible that Persaud “tends to be abrupt

in group settings, especially with females and not with

males.” (Id. at 10). Additionally, Ms. Mauras has provided an

affidavit, averring that Persaud “brutally picked on” Alvarez

at this staff meeting by “rais[ing] his voice to her, and

belittl[ing] her in front of the entire staff.” (Doc. # 66-

22 at 3). Ms. Mauras also stated that she has “seen and heard

of other women being belittled and crying at the hands of []

Persaud.” (Id. at 6).

Alvarez identified fourteen emails from Persaud when she

complained to Schaible. For example, in one email, from

November 10, 2016, Persaud wrote, among other things, “No

attachment — that is not a professional way to respond to an

assignment.” (Doc. # 60-26). Persaud’s November 18, 2016,

email included the sentence “Who authorized these changes.”

(Doc. # 60-27). Alvarez considered the email offensive in

tone. (Doc. # 60-7 at 174:24-175:2). She testified this email

was significant because Persaud would tell Alvarez that she

“had no . . . authorization to make [certain] changes” because

Persaud was “in charge of finance and everything will go

through him.” (Id. at 173:12-19).

In a March 20, 2017, email, Persaud responded to

Alvarez’s request for additional training regarding the

Trapeze computer program. (Doc. # 60-30). His response

included: “It would be helpful to understand what you are

requesting . . . . Given this request is financial in nature

I am still not convinced [of] your motive.” (Id.). Alvarez

was offended that Persaud questioned her motive for wanting

the training. (Doc. # 60-7 at 181:8-182:8).

On June 1, 2017, Persaud sent an email to Alvarez that

included: “[There is] confusion with recording capital versus

operating expenses.” (Doc. # 60-31; Doc. # 60-7 at 182:9–24).

Alvarez believed this email significant because it referenced

the June 1 staff meeting in which she felt Persaud had

humiliated her. (Doc. # 60-7 at 182:9 – 24). A few weeks

later, on June 28, 2017, Persaud responded to Alvarez’s email

regarding why she had missed a grant meeting. (Doc. # 60-33;

Doc. # 60-7 at 190:3–20). Persaud’s email included, “I

understood, in the future my meeting takes priority, no

exceptions.” (Doc. # 60-33). Alvarez testified that this

email was evidence of Persaud harassing her. (Doc. # 60-7 at

190:21–191:7).

Soon after, on July 6, 2017, Persaud emailed Alvarez the

following: “I am not sure why you are in Bartow so frequent.

I know you are covering for [Ms. Rocha] on the TD data, but

do you have to be there[?] I am just curious because of the

required travel. It would be helpful if you will communicate

these matters to me in [a] respectful way.” (Doc. # 60-35 at

2). Alvarez interpreted this language as Persaud instructing

her not to travel to Bartow — leading to the dispute between

Alvarez and Persaud during the July 24, 2017, staff meeting.

(Doc. # 60-7 at 208:12–21).

Alvarez responded to this email on July 7, stating that

she always informed Persaud about her trips to Bartow and

requesting that Persaud “try to treat [Alvarez] with respect

and professionalism, as [he] do[es] other employees.” (Doc.

# 60-35 at 1-2). Persaud replied: “It appears that since the

office restructuring at the modular, you are very bitter with

your office environment. If you seriously believe you are

single[d] out and treated different[ly] then you need to

address this matter in accordance with the District Human

Resources policy.” (Id. at 1). Alvarez believed this comment

was evidence of Persaud harassing her by changing the location

of her desk within her workspace to a place where “everybody

could see [her]” to keep track of her. (Doc. # 60-7 at 204:12–

205:10). This was the final email Alvarez identified in her

complaint to Schaible.

According to Schaible’s notes, he interviewed Persaud

following Alvarez’s initial interview. (Doc. # 60-18 at 6).

Schaible’s notes reflect that Persaud denied treating his

female coworkers differently than male coworkers. (Id.). He

allegedly asserted that “he treats everyone the same and holds

them responsible for their work.” (Id.). But Persaud

testified that he was not interviewed by Schaible. (Doc. #

66-14 at 83:18-22).

During the investigation, Alvarez was instructed to

report directly to the controller, Ms. Carter. (Doc. # 60-40

at 235:21–236:3). On August 7, 2017, Persaud reorganized the

finance department, permanently placing Alvarez and three

coworkers under Carter’s direct supervision. (Doc. # 60-41;

Doc. # 60-40 at 235:9–20). Although Alvarez did not want to

report directly to Persaud anymore, she was still

disappointed with the reorganization. (Id. at 236:12-237:7).

She wanted to be supervised by Aaron Dunn rather than Ms.

Carter. (Id.; Doc. # 60-7 at 222:9-22). Alvarez testified

that working under Ms. Carter “was no different than working

under [] Persaud” because Ms. Carter would do “everything

that [Persaud] would tell her to do.” (Doc. # 60-40 at 236:12-

237:7).

After the reorganization, Alvarez stopped taking her

work to Persaud, and could not recall any direct conversations

or email exchanges thereafter. (Doc. # 60-40 at 310:18–24,

312:3–8). But she testified she still had unpleasant

interactions with Persaud after the reorganization:

When I would be in the same building with [Persaud],

he would stare at me, he would glare at me. He knew

what time I left every day. And he would stand out

on the sidewalk, walking back and forth on the

sidewalk. And I finally just waited until he got

tired of pacing the sidewalk and waiting for me.

(Id. at 311:5-14).

Schaible concluded his investigation and found that

Persaud acted unprofessionally by sending emails to Alvarez

that contained unnecessary remarks and were unnecessarily

circulated to other employees. (Doc. # 60-18 at 2). Thus,

“Alvarez’s allegations of unprofessional communication by []

Persaud [were] confirmed.” (Id.). Schaible recommended that

the Executive Director issue a counseling to Persaud with

respect to that conduct. (Id. at 3). As a result, Persaud

received a counseling on this issue on July 27, 2017. (Doc.

# 60-4; Doc. # 60-3 at ¶ 6).

But Schaible did not confirm Alvarez’s complaint that

Persaud bullied her or discriminated against her because of

her gender. (Doc. # 60-18 at 2). As Alvarez had not complained

of any alleged age discrimination to Schaible, his

investigation made no finding regarding age discrimination.

(Id. at 2; Doc. # 60-5 at ¶ 8).

Alvarez was deeply disappointed in how Schaible treated

her and conducted the investigation. She averred that

Schaible ran the interview with her “like an interrogation.”

(Doc. # 66-20 at 15). Alvarez was afraid of and intimidated

by Schaible. (Id.). According to Alvarez, she “was especially

frightened when [] Schaible came to [her] desk, demanding

[she] report to him, standing over [her] military fashion

with arms folded across his chest, feet apart and extremely

close to [her].” (Id. at 15-16).

B. Co-Worker Complaint against Alvarez

On July 26, 2017, while Schaible was investigating

Alvarez’s complaint against Persaud, another District

employee — Elizabeth Rocha — complained to Schaible about

Alvarez. (Doc. # 60-18 at 12; Doc. # 60-40 at 252:5–14).

According to Rocha, she had trained Alvarez to perform Rocha’s

duties, including TD invoicing, while Rocha was on vacation.

(Doc. # 60-18 at 12). When she returned from vacation, she

discovered that Alvarez had failed to perform an invoicing

task. (Id.; Doc. # 60-40 at 252:5–14).

According to Alvarez, in February 2017, Rocha advised

Persaud of her plans to travel out of the country during the

summer. (Doc. # 60-42 at 4 – 5; Doc. # 60-40 at 240:21–242:9).

Persaud approved the requested vacation and directed Rocha to

coordinate with Alvarez to assist Rocha while on vacation.

(Doc. # 60-42 at 4). Rocha forwarded Persaud’s approval of

vacation and direction to coordinate to Alvarez; Alvarez

acknowledged receipt and her understanding of Persaud’s

directive. (Id. at 1-3; Doc. # 60-40 at 243:12–16). Rocha and

Alvarez met in order for Rocha to train Alvarez to perform

Rocha’s duties while on vacation. (Doc. # 60-40 at 244:13–

245:6). On June 1, 2017, Rocha wrote directly to Persaud and

Alvarez and copied others, reminding them of her vacation

plans and offering them “a refresher on [her] tasks . . . in

order to ensure [her] functions [would be] covered.” (Id. at

248:19–250:3; Doc. # 60-43 at 1). Alvarez did not contact

Rocha in response to that offer. (Doc. # 60-43 at 1; Doc. #

60-40 at 249:24-250:1).

Alvarez admitted she did not perform the invoicing, but

she alleges that Rocha lied about training her with respect

to invoicing. (Doc. # 60-40 at 253:6–254:19; Doc. # 66-20 at

17; Doc. # 60-18 at 13). Nevertheless, during the

investigation, Alvarez stated she understood she was to

“support TD 100%” but perceived Persaud’s email questioning

her travel to Bartow to be an instruction to discontinue that

support. (Doc. # 60-18 at 13). Schaible ultimately found

Alvarez’s interpretation of Persaud’s email contradicted

Persaud’s actual statements. (Id. at 2).

Schaible’s investigation confirmed Rocha’s complaint

against Alvarez regarding her failure to perform Rocha’s

invoicing function during her vacation. (Id.). Thus, Schaible

recommended that Alvarez be issued corrective action for

failing to meet performance expectations. (Id. at 3). On

August 7, 2017, Alvarez was issued a “Counseling Statement

(Written Warning)” with respect to this failure of

performance. (Doc. # 60-44; Doc. # 60-40 at 257:5–11). This

written warning was the only discipline issued to Alvarez

during her employment and was not accompanied by any other

loss or benefit of employment such as title change or reduced

pay. (Doc. # 60-40 at 260:25–261:9).

C. Other Issues During Alvarez’s Employment

After Alvarez made her complaint about Persaud, she

still experienced unpleasant work circumstances. She alleges

Phillips denied her a promised raise, and Persaud excluded

her from a grant meeting on September 20, 2017, excluded her

from unidentified staff meetings, micromanaged her work

through her supervisor, glared at her, and paced the sidewalk

when she arrived to and left from work. (Doc. # 60-67 at 23-

25, 28; Doc. # 60-40 at 344:16–345:4; Doc. # 66-20 at 19). As

a result of her working environment both before and after she

complained about Persaud, Alvarez “was often so anxious and

upset at work that [she] became physically ill.” (Doc. # 66-

20 at 8). Alvarez testified that she was fearful that Persaud

or Schaible would attack her. (Doc. # 60-40 at 343:12-344:24,

345:5-22).

As mentioned above, Alvarez felt that she was denied a

promised raise by Phillips. (Doc. # 29 at 6; Doc. # 60-67 at

28). Alvarez maintains that she first requested a raise in

September 2016. (Doc. # 60-67 at 28). According to Alvarez,

Phillips told her she would receive a raise the following

year. (Id.). Subsequently, she requested a raise

approximately six weeks prior to being “forced to resign.”

(Id.). Phillips eventually told her she would receive a raise

in September 2017. (Id.). Phillips effectuated Alvarez’s

raise on October 1, 2017, at which time her salary was

increased by 2.25%. (Doc. # 60-5 at ¶ 11). Alvarez received

the same increase as most of her male coworkers.

One exception was Rodney Wetzel, who received a

$6,000.00 raise. (Doc. # 60-67 at 14). Wetzel was senior

planner for the District, a position which Phillips

considered critical to the District’s specialized grants

program. (Doc. # 60-3 at ¶ 10). In August 2018, long after

Alvarez’s employment with the District ended, Wetzel advised

Phillips of his intent to accept a job with a different

agency. (Id. at ¶ 9). Phillips was vested with authority to

raise Wetzel’s salary within the position’s prescribed wage

range. (Id. at ¶ 11). Phillips exercised his discretion to do

so in order maintain Wetzel’s employment at the District.

(Id.). Phillips has not made similar adjustments to any other

employee’s wages, male or female, during Alvarez’s tenure

with the District. (Id. at ¶ 12).

With respect to Persaud’s alleged exclusion of Alvarez

from a grant meeting on September 20, 2017, and additional

staff meetings, Persaud’s executive assistant, Debbie Moore,

was responsible for sending out “‘evites’ to an email

distribution list labeled ‘Finance Group.’” (Doc. # 60-6 at

1). “This was the process by which [] Persaud’s finance staff

was invited to staff and grant meetings.” (Id.). Alvarez’s

“email address was included in the Finance Group distribution

list.” (Id. at 2).

Moore averred that she “never removed [] Alvarez’s email

address from the Finance Group distribution list.” (Id.).

Moore was “never instructed or ordered to exclude [] Alvarez

from any finance or grant meetings.” (Id.). In fact, in

September 2017, Persaud noticed Alvarez failed to attend a

staff meeting and inquired whether Moore knew why she was

absent. (Id.). Moore checked the Finance Group distribution

list and “Alvarez’s address was still on the list.” (Id.).

Regarding Persaud’s conduct of directing Carter to

micromanage Alvarez, glaring at her, and pacing the sidewalk

when Alvarez arrived to and left from work, Persaud denies

the allegations. (Doc. # 60-2 at 2).

In her affidavit, Alvarez averred that the District’s

“chain of command treated male employees and younger

employees with significantly more respect than older

females.” (Doc. # 66-20 at 3). She alleges that Persaud and

Phillips both “allowed male employees and younger females,”

including “Rodney Wetzel and Joe Chaney, as well as Debbie

Moore, Marci Harrison, Kelly Sauzo, Lisa Harris, Julie

Jencks, and Daisy Manjarres,” “more freedom.” (Id. at 3-4).

These individuals were “allowed to have a more flexible

schedule and their attendance and whereabouts were not

scrutinized.” (Id. at 4). Additionally, Persaud “made

derogatory and sexual comments about women, specifically

about Debbie Moore’s backside and breasts.” (Id.).

Alvarez also averred that she experienced “hostilities

related to [her] age.” (Doc. # 66-20 at 4). To support this

assertion, she points to the comment during her job interview

that she had the experience needed for the position. (Id.).

Additionally, Marci Harrison, an HR employee for the

District, commented that she was “shocked that [Alvarez] was

able to run as much as [she did] ‘at [her] age’” and that

Alvarez “looked pretty good for [her] age and was thin for

[her] age.” (Id.).

D. Request for FMLA Leave

Alvarez avers she put a completed request for FMLA leave

in Schaible’s mailbox on September 7, 2017. (Doc. # 66-20 at

24). Schaible denied receiving the request. (Id.).

On September 18, 2017, Alvarez advised Schaible of her

desire to use FMLA-provided sick leave based on anxiety. (Doc.

# 60-62 at 1; Doc. # 60-40 at 355:9–16; Doc. # 60-53 at 1).

On the same day, Schaible provided Alvarez with a Department

of Labor, Certification of Health Care Provider form

(physician’s certification) and explained her responsibility

to have her physician fill it out in order to be approved for

FMLA leave. (Doc. # 60-53). A few days later, on September

22, 2017, Schaible notified Alvarez that she was eligible for

FMLA leave. (Doc. # 60-54 at 1-3; Doc. # 60-5 at ¶ 9).

Alvarez understood that her “[f]ailure to provide a

complete and sufficient medical certification [could] result

in a denial of [her] FMLA request.” (Doc. # 60-51 at 1; Doc.

# 60-40 at 295:8-296:20).

Alvarez submitted to Schaible a physician’s

certification that her physician, Dr. Haggerty, had filled

out. (Doc. # 60-51; Doc. # 60-40 at 294:4–24, 298:8–14). But

the certification lacked contact information for the health

care provider, provided a vague description of the job

functions Alvarez was unable to perform, and insufficiently

indicated the estimated time of leave. (Doc. # 60-51).

Specifically, the certification stated that Alvarez was

unable to perform functions “that require concentration or

close work with certain other employees,” and “needs to remove

from toxic environment temporarily.” (Id. at 2-3). When asked

to “estimate the beginning and ending dates for the period of

incapacity,” the doctor wrote “1 day at a time.” (Id. at 3).

The certification also stated that Alvarez had been to another

health care provider for evaluation or treatment, but it did

not “state the nature of such treatments and expected duration

of treatment.” (Id. at 2).

On September 27, 2017, Schaible advised Alvarez of these

deficiencies and described the specific additional

information required “in order to determine [her] FMLA

status.” (Doc. # 60-55; Doc. # 60-5 at ¶ 10).

According to Alvarez, she “submitted even more FMLA

paperwork on September 28, 2017.” (Doc. # 66-20 at 25). She

also advised Schaible on October 1, 2017, that her “doctor

does not understand why he would not accept the documents”

she had previously provided. (Id.). The record contains a

medical certification form — the original certification

Alvarez provided to the District, but with additional

information filled in. (Doc. # 60-56). It is unclear when

Alvarez turned this amended certification in to the District

and the amended certification does not state the date the

additional information was added. (Id.).

The amended certification stated that Alvarez was not

actually referred to another health care provider for

evaluation or treatment. (Id. at 2). Regarding the job

functions Alvarez could not perform, the amended

certification added the words “all current job functions”

after the previous description “ones that require

concentration or close work with certain other employees.”

(Id.). But the amended certification did not add all the

required additional information. For example, Schaible

explained in response to the original certification that the

doctor needed to “specify the estimated beginning and ending

dates for the period of incapacity.” (Doc. # 60-55 at 2).

Yet, the amended certification did not provide this

information; instead, the original certification’s answer —

“1 day at a time” — remains. (Doc. # 60-56 at 3).

On October 13, 2017, Schaible sent Alvarez a letter,

stating that she had not submitted an amended physician’s

certification and instructing her to submit an amended

certification by October 20, 2017. (Doc. # 60-61; Doc. # 60-

40 at 350:19–351:4). The letter said, in relevant part,

We are confused by your intentions. We are giving

you an extension but if we do not receive

information requested in the Notice of Eligibility

and Rights and Responsibilities (that we asked for

on September 28th) by close of business on October

20, 2017, we will [have] no other option than to

treat your time off unexcused absences under our

normal time and attendance policies and,

unfortunately, your position may need to be

permanently replaced at that time.

(Doc. # 60-61 at 2). Schaible reiterated the same information

in an October 13, 2017, email to Alvarez. (Doc. # 60-62 at

2). However, that email stated that, if Alvarez failed to

provide a sufficient medical certification by October 20, the

District “will permanently replace [her] position.” (Id.).

On October 14, 2017, Alvarez responded to Schaible’s

correspondence advising him that her doctor was processing

the FMLA paperwork. (Doc. # 60-62 at 1-2; Doc. # 60-40 at

356:17–20, 357:17–23). She also expressed her intent to

return to the District following the exhaustion of her FMLA

leave. (Doc. # 60-40 at 358:23–359:10).

Despite this, Alvarez failed to provide an amended

physician’s certification to the District. (Doc. # 60-64;

Doc. # 60-40 at 369:6–24). Further, Alvarez failed to return

to work after September 28, 2017. (Doc. # 60-64) Therefore,

Citrus Connection discharged her on December 26, 2017, for

job abandonment. (Id.). Alvarez, who was over sixty years old

at this time, was replaced by Sholpan Grover, a “substantially

younger [woman] . . . approximately [forty] years old.” (Doc.

# 66-20 at 1, 27).

E. Procedural History

Alvarez initiated this action in state court, and the

District removed the case to this Court on April 30, 2019.

(Doc. # 1). Alvarez filed the second amended complaint — the

operative complaint — on July 11, 2019. (Doc. # 29). The

second amended complaint asserts numerous counts: gender-

based disparate treatment in violation of Title VII (Count

I); gender-based disparate treatment in violation of the

Florida Civil Rights Act (FCRA) (Count II); age-based

disparate treatment in violation of the Age Discrimination in

Employment Act (ADEA) (Count III); age-based disparate

treatment in violation of the FCRA (Count IV); constructive

discharge under Title VII (Count V); constructive discharge

under the ADEA (Count VI); constructive discharge under the

FCRA (Count VII); retaliation in violation of Title VII (Count

VIII); retaliation in violation of the ADEA (Count IX);

retaliation in violation of the FCRA (Count X); Family and

Medical Leave Act (FMLA) interference (Count XI); and

retaliation in violation of the FMLA (Count XII). (Id.).

After the Court denied the District’s motion to dismiss

(Doc. # 36), the District filed its answer. (Doc. # 37). The

case proceeded through discovery. Now, the District seeks

summary judgment on all claims. (Doc. # 60). 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

The District seeks summary judgment on all counts.

A. Attempt to Raise Hostile Work Environment Claims

The Court begins by addressing Alvarez’s improper

attempt to raise claims premised on a hostile work environment

theory. In her response to the Motion for Summary Judgment,

Alvarez asserts that she has a hostile work environment claim

under Title VII, as well as a claim for a “retaliatory hostile

work environment.” (Doc. # 65 at 28-29, 31).

The problem is that Alvarez previously represented to

this Court that she was not premising any of her claims on a

hostile work environment theory. Indeed, in her August 21,

2019, response to the District’s motion to dismiss the second

amended complaint, Alvarez wrote that “she is not bringing

hostile work environment claims,” thereby rendering moot the

District’s arguments concerning hostile work environment.

(Doc. # 35 at 17-18). Alvarez also wrote: “‘Plaintiff is not

bringing a hostile work environment claim.’ To the extent

that Defendant still chooses to infer one from its reading of

the [s]econd [a]mended [c]omplaint, such a claim is here

withdrawn.” (Id. at 5). Finally, she “[r]epeat[ed] that she

here is not bringing a hostile work environment claim.” (Id.

at 6).

The Court took these unequivocal statements seriously.

Thus, in the Order denying the motion to dismiss the second

amended complaint, the Court wrote: “Alvarez clarifies that

she is not bringing a claim for hostile work environment under

any statute. Therefore, no separate counts for hostile work

environment were required.” (Doc. # 36 at 8). The Court held

that the District’s arguments regarding the hostile work

environment theory in relation to the discrimination claims

were “unnecessary” because “Alvarez states in her response

that she is not bringing these — or any — claims under the

hostile work environment theory.” (Id. at 13). Regarding the

retaliation claims, the Court again relied on Alvarez’s

representation that she was not proceeding under the hostile

work environment theory:

the District’s argument for dismissal is primarily

that Alvarez has failed to specify whether she is

proceeding on these [retaliation] claims under a

hostile work environment theory or otherwise. But,

again, Alvarez has clarified that she is not

bringing any claims under a hostile work

environment theory. The District’s concern over

this issue is thus moot.

(Id. at 16).

Despite her previous representations to the Court, which

the Court relied on in determining whether the second amended

complaint was subject to dismissal, Alvarez now attempts to

rely on the hostile work environment theory for both her

gender discrimination and retaliation claims.

Not only is such conduct impermissible, it is

potentially sanctionable. However, the Court will give

Alvarez’s experienced counsel the benefit of the doubt and

merely ignore her arguments regarding hostile work

environment, which she had so vehemently waived earlier in

this litigation. Alvarez’s arguments concerning hostile work

environment are estopped.

B. Title VII and FCRA Gender Discrimination1

In Counts I and II, Alvarez asserts claims for gender

discrimination in violation of Title VII and the FCRA. (Doc.

# 29 at 8-11).

Under Title VII, it is 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, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e–2(a)(1). A plaintiff may

establish his Title VII claim with either direct or

circumstantial evidence of discrimination. Wilson v. B/E

Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004)(citing

Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999)).

Alvarez relies on circumstantial evidence to establish her

claim.

In analyzing allegations of single-motive discrimination

supported by circumstantial evidence, the Court often — but

not exclusively — follows the burden-shifting framework

1 “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.

established in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), and its progeny. See Marcelin v. Eckerd Corp. of Fla.,

No. 8:04-cv-491-T-17MAP, 2006 WL 923745, at *4 (M.D. Fla.

Apr. 10, 2006)(citing Tex. Dep’t of Cmty. Affairs v. Burdine,

450 U.S. 248 (1981)). Under the McDonnell Douglas framework,

the plaintiff bears the initial burden of establishing a prima

facie case of discrimination, which creates a rebuttable

presumption that the employer acted illegally. McDonnell

Douglas, 411 U.S. at 802–03. Once the plaintiff has

established a prima facie case, the burden shifts to the

defendant. Id.; Dickinson v. Springhill Hosps., Inc., 187 F.

App’x 937, 939 (11th Cir. 2006).

To establish a prima facie case of disparate treatment

under the McDonnell Douglas framework, Alvarez must

demonstrate that she: “(1) belongs to a protected class; (2)

suffered an adverse employment action; (3) was qualified to

do [her] job; and (4) was treated less favorably than

similarly situated employees outside of the protected class.”

Martin v. Rumsfeld, 137 F. App’x 324, 325 (11th Cir. 2005).

The District challenges the second and fourth elements

of Alvarez’s gender discrimination claims under McDonnell

Douglas — the adverse employment action and comparator

elements. (Doc. # 60 at 20).

“[T]o prove adverse employment action in a case under

Title VII’s anti-discrimination clause, an employee must show

a serious and material change in the terms, conditions, or

privileges of employment.” Davis v. Town of Lake Park, 245

F.3d 1232, 1239 (11th Cir. 2001). “An adverse employment

action is an ultimate employment decision, such as discharge

or failure to hire, or other conduct that alters the

employee’s compensation, terms, conditions, or privileges of

employment, deprives him or her of employment opportunities,

or adversely affects his or her status as an employee.” Gupta

v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th Cir.

2000)(citation and internal quotation marks omitted). “[T]he

employee’s subjective view of the significance and adversity

of the employer’s action is not controlling; the employment

action must be materially adverse as viewed by a reasonable

person in the circumstances.” Davis, 245 F.3d at 1239. “If an

action has no effect on an employee, it is not an adverse

employment action.” Clark v. Potter, 232 F. App’x 895, 896

(11th Cir. 2007).

The District summarizes the alleged adverse employment

actions identified by Alvarez in her operative complaint:

Persaud sending her emails which offended her and

which included coworkers on the distribution;

Persaud making disrespectful statements to her

during staff and finance meetings; Persaud

excluding her from a staff meeting; Persaud glaring

at her and pacing the sidewalk when she arrived and

left work; coworker, Rocha complaining that she

failed to perform Rocha’s duties while on vacation;

supervisor, Carter issuing a written warning for

failing to cover for Rocha; Carter micromanaging

her; Schaible’s aggressive demands for her to

attend interviews and produce documents supporting

her complaints against Persaud; Schaible requiring

additional information with respect to the

physician’s certification; and Phillips denying her

a raise.

(Doc. # 60 at 21).

But, in her response, Alvarez only raises two adverse

employment actions — her alleged termination and her alleged

constructive discharge. (Doc. # 65 at 24-25). Thus, Alvarez

has abandoned any other potential adverse employment action

as the basis of her discrimination claims. 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).

As discussed in greater depth in Section F, infra,

Alvarez cannot establish her claims for constructive

discharge. Thus, she cannot proceed on the basis that the

adverse employment action she faced was her constructive

discharge. Regarding her allegation of termination, the

October 13, 2017, letter from Schaible did not terminate

Alvarez’s employment. (Doc. # 60-61). Rather, that document

indicates that Alvarez’s employment would be terminated if

she failed to provide the additional required FMLA

certification by October 20, 2017. (Id.). When Alvarez failed

to provide the necessary medical paperwork or return to work,

her employment was eventually terminated in December 2017 for

job abandonment. (Doc. # 60-64). Still, because the District

did eventually terminate her employment, the termination in

December 2017 does qualify as an adverse employment action.

The District argues that Alvarez cannot present any

comparators who did not face adverse employment actions for

engaging in similar conduct as Alvarez. (Doc. # 60 at 24).

Indeed, Alvarez does not point to comparators in her response.

(Doc. # 65 at 26-27).

Rather, Alvarez emphasizes that she does not need to

present comparators because the Eleventh Circuit has

announced another method of establishing a prima facie case

of discrimination besides the McDonnell Douglas framework.

(Id.). On this point, Alvarez is correct. While the District

takes a dim view of the “convincing mosaic” case law, such

precedent is binding on the Court.

Alvarez “may establish a ‘convincing mosaic’ [of

discrimination] with ‘evidence that demonstrates, among other

things, (1) suspicious timing, ambiguous statements . . . ,

and other bits and pieces from which an inference of

discriminatory intent might be drawn, (2) systematically

better treatment of similarly situated employees, and (3)

that the employer’s justification is pretextual.’” Melvin v.

Fed. Express Corp., No. 19-11872, 2020 WL 2568376, at *3 (11th

Cir. May 21, 2020)(quoting Lewis v. City of Union City, 934

F.3d 1169, 1185 (11th Cir. 2019)).

Regarding pretext, “[a] plaintiff may create an

inference of discriminatory intent ‘by showing that [the

employer’s] proffered reasons are not credible.’” Melvin,

2020 WL 2568376, at *5 (quoting Alvarez v. Royal Atl.

Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010)). “To

show than an employer’s reason is not credible, the plaintiff

‘must meet that reason head on and rebut it,’ demonstrating

‘weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer’s

rationale.’” Id. (citations omitted). “But plaintiffs may not

recast the reason or merely quarrel with its wisdom.” Id. “It

is not [the Court’s] role to second-guess the business

decisions of employers.” Id.

Alvarez argues she has presented a “convincing mosaic”

of circumstantial evidence of gender discrimination.

According to her:

The workplace was so permeated with discriminatory

animus that several witnesses were able to testify

about it with specificity. Ms. Mauras stated that

[] Persaud treated Plaintiff “brutally” during the

meetings he did not exclude her from, and that his

conduct was based on her gender. Many have

testified that [] Persaud would never treat a male

employee the way he treated [Alvarez].

(Doc. # 65 at 27).

The Court disagrees with Alvarez that the evidence

before the Court is sufficient to create a triable issue of

the District’s alleged discriminatory intent. Here, there is

no dispute that Persaud occasionally spoke to Alvarez in a

harsh manner, but there is not sufficient evidence to suggest

Alvarez’s termination was actually based on her gender. When

Alvarez complained to HR about Persaud, the District

investigated her allegations. Although Alvarez disapproved of

Schaible’s methods and demeanor and the District concluded

that Persaud did not discriminate against Alvarez, it did

conclude that Persaud was disrespectful in his emails and

disciplined him accordingly. The generalized allegations that

Persaud spoke harshly to other female employees, but rarely

to male employees, are not sufficient to raise an inference

of unlawful discrimination.

More importantly, there is not sufficient evidence that

the District’s reason for ultimately terminating Alvarez’s

employment was pretextual. Regarding pretext for her

termination, Alvarez argues:

[Alvarez] became so ill that she visited her

physician and completed the necessary paperwork to

secure FMLA leave. [] Schaible denied ever

receiving those documents, so she provided them a

second time. Although she was told she was

eligible, [] Schaible then sent her on an

impossible mission to secure additional information

from her physicians to justify her obvious need for

leave. Although she made additional appointments

and attempted to appease [] Schaible, her physician

was unable to provide whatever information it was

he claimed he needed.

(Doc. # 65 at 35). Thus, Alvarez argues that she has rebutted

the District’s legitimate, non-discriminatory reason by

focusing on Alvarez’s first request for FMLA leave that

Schaible denied receiving and asserting that Schaible’s

request for additional medical certification was unjustified.

But the record is clear that Alvarez never turned over

sufficient medical documentation to support her request for

FMLA leave. Schaible provided a line-by-line explanation of

the deficiencies of the original medical certification and

what additional information was required. (Doc. # 60-55).

Although there is an undated amended certification in the

record, that certification still did not provide all the

information Schaible requested. (Doc. # 60-56). For example,

Schaible explained in response to the original certification

that the doctor needed to “specify the estimated beginning

and ending dates for the period of incapacity.” (Doc. # 60-

55 at 2). Yet, the amended certification did not provide this

information; instead, the original certification’s answer —

“1 day at a time” — remains. (Doc. # 60-56 at 3). Thus, there

is no genuine dispute of material fact as to whether the

amended certification was sufficient to satisfy her burden to

provide a needed medical certification.

The October 13 letter then extended the deadline for

Alvarez to provide a sufficient certification, and Alvarez

responded that her doctor was processing the FMLA paperwork.

(Doc. # 60-62 at 1-2). Yet, despite her representation,

Alvarez did not provide a further medical certification.

Thus, the District ended Alvarez’s employment based on

Alvarez’s failure to either support her request for FMLA leave

or return to work. Alvarez has not rebutted this.

In short, Alvarez has not established a “convincing

mosaic” of circumstantial evidence of discrimination. Thus,

summary judgment is granted on the claims for gender

discrimination under Title VII and the FCRA.

C. ADEA and FCRA Age Discrimination2

In Count III, Alvarez asserts a claim for age

discrimination in violation of the ADEA. (Doc. # 29 at 11-

13). Similarly, in Count IV, she pleads a claim for age

discrimination in violation of the FCRA. (Id. at 13-14).

“The ADEA prohibits employers from firing employees who

are forty years or older because of their age.” Liebman v.

Metro. Life Ins. Co., 808 F.3d 1294, 1298 (11th Cir. 2015).

“To assert an action under the ADEA, an employee must

establish that his age was the ‘but-for’ cause of the adverse

employment action.” Id. “This showing can be made through

either direct or circumstantial evidence.” Id.

When a plaintiff relies on circumstantial evidence, as

Alvarez does here, the McDonnell Douglas framework may apply.

Id. “To make a prima facie case of age discrimination, the

employee must show: (1) [she] was a member of the protected

group between the age of forty and seventy; (2) [she] was

subject to an adverse employment action; (3) a substantially

2 “Disability and age-related discrimination actions under

the FCRA are analyzed under the same framework[] as the []

ADEA.” Mazzeo v. Color Resolutions Int’l, LLC, 746 F.3d 1264,

1266 (11th Cir. 2014).

younger person filled the position from which [she] was

discharged; and (4) [she] was qualified to do the job from

which [she] was discharged.” Id.

The District argues that — for the same reasons argued

regarding the gender discrimination claims — Alvarez “cannot

demonstrate that she was subject to an adverse employment

action or that she was constructively discharged.” (Doc. # 60

at 28). Even if a prima facie case under the McDonnell Douglas

framework is established, the District again argues it has

already raised a legitimate non-discriminatory reason for its

actions and that Alvarez cannot establish pretext. (Id.).

Alvarez asserts that she has established a prima facie

case of age discrimination. (Doc. # 65 at 27-28). She notes

that she was over sixty years old at the time her employment

ended, and she was replaced by a younger woman. (Id. at 28;

Doc. # 66-20 at 1, 27). She insists there is “considerable

testimony that [] Persaud favored younger employees, and

treated them more favorably,” such as when Mr. Wetzel received

a raise. (Id. at 28).

Even assuming Alvarez has met her prima facie case, she

has not rebutted the District’s non-discriminatory reason for

ending her employment for the reasons explained in the

previous section. Alvarez has not shown that the District’s

explanation that Alvarez never provided a sufficient medical

certification for FMLA leave lacks credibility. Thus, summary

judgment is granted on these claims.

D. Title VII and FCRA Retaliation

In Counts VIII and X, Alvarez pleads claims for

retaliation in violation of Title VII and the FCRA. (Doc. #

29 at 19-20, 21-22).

The McDonnell Douglas burden-shifting framework

frequently 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)). “[A] plaintiff alleging

retaliation must first establish a prima facie case by showing

that: (1) [she] engaged in a statutorily protected activity;

(2) [she] suffered an adverse employment action; and (3) [she]

established a causal link between the protected activity and

the adverse action.” Bryant v. Jones, 575 F.3d 1281, 1307–08

(11th Cir. 2009).

However, the Eleventh Circuit has also previously

applied the “convincing mosaic” standard to Title VII

retaliation claims. See Calvert v. Doe, 648 F. App’x 925, 929

(11th Cir. 2016)(“Calvert has established ‘a convincing

mosaic of circumstantial evidence’ that would permit a jury

to infer that the county retaliated against him because of

his previous lawsuit.”).

Under either standard, Alvarez’s claims fail because she

has not presented sufficient evidence of pretext. Aside from

her improper attempt to proceed on a retaliatory hostile work

environment theory (Doc. # 65 at 31), Alvarez bases her

retaliation claims only on her termination or her alleged

constructive discharge — the same adverse employment actions

she relied on for her discrimination claims. See (Id. at

30)(“Defendant disputes all three elements [of the prima

facie case of retaliation], but as shown above, Plaintiff

experienced an adverse employment action.”).3 Again, as

discussed in greater depth in Section F, infra, Alvarez cannot

establish her claims for constructive discharge. Thus, only

her termination may serve as an adverse employment action.

3 The Court is aware that “[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.’” — a lower

threshold than that for a discrimination claim. Jacomb, 2019

WL 5692666, at *3 (quoting Crawford v. Carroll, 529 F.3d 961,

973–74 (11th Cir. 2008)). Nevertheless, Alvarez has not

specified any discrete materially adverse actions on which

she bases her prima facie case of retaliation besides her

termination or constructive discharge. (Doc. # 65 at 30). The

only other adverse conduct Alvarez describes is mentioned

only as support for her retaliatory hostile work environment

theory, which the Court will ignore. (Id. at 31).

And while the parties debate whether Alvarez has

satisfied the other elements of her prima facie case,

resolution of those issues is not necessary. Just as with

Alvarez’s sex and age discrimination claims, Alvarez has

failed to rebut the District’s non-discriminatory reason for

terminating her employment: her failure to provide a

sufficient medical certification to support the multiple

weeks of leave she took from work. Because she never provided

a sufficient certification nor returned to work, Alvarez was

terminated. Thus, Alvarez has not established pretext and

summary judgment is granted on these claims.

E. ADEA Retaliation

Alvarez also alleges that the District retaliated

against her in violation of the ADEA in Count IX. (Doc. # 29

at 20-21).

ADEA “[r]etaliation claims are governed by the same

burden-shifting framework described” previously. Brillinger

v. City of Lake Worth, 317 F. App’x 871, 877 (11th Cir. 2008).

“To establish a prima facie case of retaliation, Brillinger

must show that (1) he engaged in ADEA protected expression;

(2) he suffered an adverse employment action; and (3) the

adverse action was causally related to the protected

expression.” Id.

The District argues that summary judgment is appropriate

on this claim because Alvarez “did not complain of age

discrimination during her employment; her first complaint of

age discrimination was her amended charge of discrimination

filed the year after she stopped reporting to work.” (Doc. #

60 at 28 n.30).

Alvarez failed to respond to this argument in her

response. (Doc. # 65). Indeed, in the response’s section on

retaliation, Alvarez merely states that she “expressly

referenced discrimination and her gender in relation to []

Persaud’s conduct” when she complained to Schaible. (Id. at

30). While she alleges there is evidence that Persaud treated

her poorly “because or her age and gender,” she never argues

that she actually complained about age discrimination during

her employment nor addresses the District’s argument that her

claim fails for this reason. (Id.).

Thus, Alvarez has abandoned her ADEA retaliation claim.

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. 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).

Summary judgment is granted on the ADEA retaliation

claim.

F. Constructive Discharge

In Counts V, VI, and VII, Alvarez asserts claims for

constructive discharge under Title VII, the ADEA, and the

FCRA. (Doc. # 29 at 14-19).

“A constructive discharge occurs when a discriminatory

employer imposes working conditions that are ‘so intolerable

that a reasonable person in [the employee’s] position would

have been compelled to resign.’” Fitz v. Pugmire Lincoln-

Mercury, Inc., 348 F.3d 974, 977 (11th Cir. 2003)(citation

omitted). This is a high standard and “[o]ne’s working

environment does not become objectively intolerable simply

because it becomes less attractive.” Hipp v. Liberty Nat’l

Life Ins. Co., 252 F.3d 1208, 1231-1235 (11th Cir. 2001).

“Establishing a constructive discharge claim is a more

onerous task than establishing a hostile work environment

claim.” Bryant, 575 F.3d at 1298. Thus, necessarily, the

conduct complained of must be “extreme [enough] to amount to

a change in the terms and conditions of employment.” Faragher

v. City of Boca Raton, 524 U.S. 775, 788 (1998). “‘[S]imple

teasing,’ offhand comments, and isolated incidents (unless

extremely serious) will not amount to discriminatory changes

in the ‘terms and conditions of employment.’” Id. (citation

omitted). Constructive discharge cannot be established by the

“the ordinary tribulations of the workplace, such as the

sporadic use of abusive language.” Id. (citation omitted).

The Court agrees with the District that the actions of

which Alvarez complains fall short of establishing

constructive discharge. (Doc. # 60 at 22-23). True, Persaud

was harsh on Alvarez in three staff meetings and at least

fourteen emails. Even after she stopped reporting directly to

him, Alvarez was disturbed by Persaud’s glaring at her and

pacing outside the office around the time she left each day.

She felt as though she was excluded from meetings and

micromanaged by her new supervisor, Ms. Carter. Alvarez was

displeased with the methods the HR department took in

investigating her complaint against Persaud and felt that its

investigation of Ms. Rocha’s complaint against Alvarez was

unfair. As a result, Alvarez “was often so anxious and upset

at work that [she] became physically ill.” (Doc. # 66-20 at

8). She was also fearful that Persaud or Schaible would attack

her. (Doc. # 60-40 at 343:12-344:24, 345:5-22).

While Alvarez no doubt considered all this conduct

hurtful and anxiety-producing, this conduct was not so

frequent or offensive to rise to the level of a constructive

discharge. See Austin v. FL HUD Rosewood LLC, 791 F. App’x

819, 825 (11th Cir. 2019)(“The comments, while undoubtedly

hurtful to Austin, were not so frequent or offensive to rise

to the level needed to support a claim of constructive

discharge.”); see also Poole v. Country Club, 129 F.3d 551,

553 (11th Cir. 1997)(holding that constructive discharge

claim survived summary judgment where the plaintiff was

“[s]tripped of all responsibility, given only a chair and no

desk, and isolated from conversations with other workers”).

Alvarez’s subjective feelings of anxiety-induced illness and

fear of Persaud and Schaible should not be considered. See

Doe v. Dekalb Cty. Sch. Dist., 145 F.3d 1441, 1450 (11th Cir.

1998)(“In assessing constructive discharge claims, we do not

consider a plaintiff’s subjective feelings about his

employer’s actions.”).

Simply put, taking all the evidence in the light most

favorable to Alvarez, the workplace was not “objectively

intolerable” such that a reasonable person would resign.

Hipp, 252 F.3d at 1231-1235. Summary judgment is granted on

these claims.

G. FMLA Interference

In Count XI, Alvarez pleads a claim for FMLA

interference. (Doc. # 29 at 22).

“To establish an FMLA interference claim an employee

must demonstrate by a preponderance of the evidence that he

was denied a benefit to which he was entitled.” Bradley v.

Army Fleet Support, LLC, 54 F. Supp. 3d 1272, 1277 (M.D. Ala.

2014)(citing Pereda v. Brookdale Senior Living Communities,

666 F.3d 1269, 1274 (11th Cir. 2012)). “Benefits under the

FMLA include both taking leave and being reinstated following

a leave period, subject to certain conditions.” Diamond v.

Hospice of Fla. Keys, Inc., 677 F. App’x 586, 592 (11th Cir.

2017). “With respect to an employee’s right to take FMLA

leave, unlawful employer interference includes not only

refusing to authorize FMLA leave, but also ‘discouraging an

employee from using such leave.’” Id. (citation omitted). “In

addition to showing interference, a plaintiff must show that

she has been prejudiced by the FMLA violation in some way.”

Id. “An employee need not ‘allege that his employer intended

to deny the right; the employer’s motives are irrelevant.’”

Martin v. Brevard Cty. Pub. Sch., 543 F.3d 1261, 1267 (11th

Cir. 2008)(quoting Strickland v. Water Works and Sewer Bd.,

239 F.3d 1199, 1208 (11th Cir. 2001)).

According to the District, summary judgment is

appropriate on this claim because Schaible acted in

compliance with the FMLA’s requirements but Alvarez herself

failed to satisfy the requirement of submitting a complete

and sufficient certification from her health care provider.

(Doc. # 60 at 34).

When Alvarez requested FMLA leave, the District was

required to notify her of her eligibility to take FMLA leave

within five business days. 29 C.F.R. § 825.300(b)(1). Because

she sought leave for her own serious health condition, the

District could — and did — require Alvarez to support her

request with a certification issued by her health care

provider. 29 C.F.R. § 825.305(a), (c). If the certificate was

incomplete, the District was required to explain the

deficiencies to Alvarez and provide her seven days to provide

a complete certification. 29 C.F.R. § 825.305(c). But if

Alvarez failed to provide a sufficient and complete

certification, then the District was entitled to deny the

request. Id.

While Alvarez alleges she had submitted an FMLA request

to Schaible earlier, there is no dispute that Alvarez did

request FMLA leave on September 18, 2017. (Doc. # 60-62 at 1;

Doc. # 60-40 at 355:9–16; Doc. # 60-53 at 1). Within the

required five-day period, Schaible gave Alvarez a blank

certification form and notified Alvarez that she was eligible

for FMLA leave. (Doc. # 60-53). Although Alvarez gave a

certification to Schaible, Schaible considered the form

insufficient because it included vague and confusing answers

to some questions. (Doc. # 60-55). So, Schaible explained to

Alvarez what additional information was required to determine

whether she was eligible for FMLA. (Id.).

Although Alvarez provided an amended certification, it

was still insufficient because it did not provide all the

additional information Schaible requested. (Doc. # 60-56). On

October 13, 2017, Schaible let Alvarez know that the District

had “not received the additional information [it] needed to

approve [Alvarez’s] FMLA.” (Doc. # 60-61). He also extended

the time for Alvarez to file the revised certification. (Id.).

Alvarez acknowledged the extended deadline and stated that

her doctor was processing the FMLA paperwork. (Doc. # 60-62

at 1-2; Doc. # 60-40 at 356:17–20, 357:17–23). Still, Alvarez

did not file a sufficient certification. Although Alvarez

maintains that “her physician was unable to provide whatever

information it was [Schaible] claimed he needed,” Alvarez

does not deny that she never sent in additional paperwork in

response to the October 13, 2017, letter. (Doc. # 65 at 35).

Rather than terminate her employment when she missed the

deadline, the District kept Alvarez’s job available for her

return until December 26, 2017. (Doc. # 60-64). At that point,

the District terminated Alvarez’s employment. (Id.).

Alvarez argues these facts still support a finding that

her FMLA rights were interfered with. Here argument as to

this claim is as follows:

Here, [Alvarez] received notice from [the District]

that she was entitled to FMLA leave, and [] Schaible

thereafter continued to refuse to accept the forms

prepared by [Alvarez]’s physician, insisting that

the forms were insufficient. Eventually, he

notified [Alvarez] that she was actually not

entitled to FMLA leave, which supports [Alvarez]’s

prima facie interference proffer.

(Doc. # 65 at 33).

Alvarez’s argument is unpersuasive. The District

informed Alvarez on September 22 that she was eligible for

FMLA leave — not entitled to it. (Doc. # 60-53). After Alvarez

submitted her original medical certification, the District

informed Alvarez why that certification was insufficient and

gave her time to provide an amended certification. Alvarez

never provided a sufficient certification. The amended

certification still did not address all the issues raised by

Schaible and was thus insufficient. (Doc. # 60-56). Despite

Schaible’s October 13 letter and Alvarez’s response that her

paperwork was in process, Alvarez never turned in another

medical certification after that time.

Therefore, the District acted lawfully when it denied

Alvarez’s FMLA request. Alvarez was not denied an FMLA benefit

to which she was entitled, because she never complied with

the certification requirements to receive FMLA leave. Summary

judgment is granted to the District on this claim.

H. FMLA Retaliation

In Count XII, Alvarez asserts a claim for FMLA

retaliation, alleging Alvarez was harassed and constructively

discharged for requesting FMLA leave. (Doc. # 29 at 22-23).

“FMLA retaliation is distinct from FMLA interference in

that to succeed on a FMLA retaliation claim, an employee must

demonstrate that his employer intentionally discriminated

against him in the form of an adverse employment action for

having exercised an FMLA right.” Bradley, 54 F. Supp. 3d at

1282 (citing Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1235

(11th Cir. 2010)). “A retaliation claim, therefore, is

different from an interference claim because an employee must

show intent to retaliate.” Id.

The McDonnell Douglas burden-shifting framework applies

to FMLA retaliation claims. Hurlbert v. St. Mary’s Health

Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir. 2006). “A

plaintiff bringing an FMLA retaliation claim must show that

his employer intentionally discriminated against him in the

form of an adverse employment action for having exercised an

FMLA right.” Bradley, 54 F. Supp. 3d at 1282. “To state a

prima facie case of retaliation under the FMLA, a plaintiff

must show that (1) [she] engaged in a statutorily protected

activity, (2) [she] suffered an adverse employment action,

and (3) the adverse action was causally related to a protected

activity.” Id. “If the plaintiff makes out a prima facie case,

the burden shifts to the defendant to articulate a legitimate,

non-discriminatory reason for the adverse employment action.”

Id.

Alvarez argues that she has met her prima facie case

because she “sought FMLA leave in September 2017, and on

October 13, 2017, [] Schaible notified her that her absences

would be considered unexcused and her position permanently

replaced, terminating Plaintiff’s employment.” (Doc. # 65 at

33). Thus, Alvarez argues that the termination of her

employment is the adverse employment action relevant to this

claim.

She also asserts that she has established pretext. She

points out that Schaible “denied ever receiving” the first

set of paperwork Alvarez submitted to receive FMLA leave and

“sent her on an impossible mission to secure additional

information from her physicians to justify her obvious need

for leave.” (Doc. # 65 at 35).

This is not persuasive. Alvarez has not rebutted the

reason she was terminated: she did not provide Schaible a

sufficient medical certification by the October 20, 2017,

deadline, nor did she ever return to work. The temporal

proximity between Alvarez’s request for leave in September

2017 and her termination — regardless of whether that

termination occurred on December 26, 2017, or earlier on

October 20, 2017, the deadline to provide the amended

certification — is not sufficient by itself to establish

pretext. See Hurlbert v. St. Mary’s Health Care Sys., Inc.,

439 F.3d 1286, 1298 (11th Cir. 2006)(“The close temporal

proximity between Hurlbert’s request for leave and his

termination — no more than two weeks, under the broadest

reading of the facts — is evidence of pretext, though probably

insufficient to establish pretext by itself.”).

Despite her claim that obtaining the additional

information was “an impossible mission,” Alvarez has not

created a genuine issue of material fact as to whether

Schaible was unreasonable for requesting the additional

information for the certification. The record reflects that

Alvarez did not provide Schaible an amended certification in

response to his October 13 letter by the deadline set in the

letter. Taking all the evidence in the light most favorable

to Alvarez, Alvarez has not carried her burden of supporting

her FMLA retaliation claim. Summary judgment is granted on

this claim.

IV. Conclusion

Summary judgment is appropriate on all of Alvarez’s

claims. Thus, the Court grants the District’s Motion.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) Defendant Lakeland Area Mass Transit District’s Motion

for Summary Judgment (Doc. # 60) is GRANTED.

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

Defendant Lakeland Area Mass Transit District and

against Plaintiff Brenda Alvarez on all claims of the

second amended complaint.

(3) Thereafter, the Clerk is directed to CLOSE the case.

DONE and ORDERED in Chambers in Tampa, Florida, this

25th day of June, 2020.

fan nr. Munenby (noiph

VIR IA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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