Collins v. School Board of Pinellas County, Florida

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ANGELA M. COLLINS,

Plaintiff,

v. Case No. 8:19-cv-2145-T-33TGW

SCHOOL BOARD OF PINELLAS

COUNTY, FLORIDA,

Defendant.

______________________________/

ORDER

This matter comes before the Court pursuant to Defendant

School Board of Pinellas County, Florida’s Motion for Summary

Judgment (Doc. # 63), filed on October 9, 2020. Pro se

Plaintiff Angela M. Collins responded on November 16, 2020.

(Doc. # 67). For the reasons that follow, the Motion is

granted.

I. Background

A. Position as Bus Driver and Benefits

In May 2005, the School Board hired Collins as a

substitute bus driver; four months later, she was promoted to

regular bus driver. (Doc. # 64 at 45:18-24; Doc. # 64-1 at

25-26). Collins previously had been employed with the School

Board in food service and student support services. (Doc. #

64-1 at 23-24). She resigned her employment in September 2006

and later applied and was hired again as a driver in 2007.

(Id. at 30-31). Collins was employed in this position until

her resignation on May 22, 2019. (Doc. # 65-3 at 23). She was

a 9-month employee, working from August until May. (Doc. #

64-4 at 1).

As a bus driver, Collins was required to have and

maintain a Class B license, to drive with care at all times,

to instruct students in safe riding practices, and to safely

transport students. (Doc. # 64 at 47:1-19, 50:15-17; Doc. #

64-1 at 27-29). Although it was not listed in the job

description (Doc. # 67-2 at 33-35), Collins testified it was

an essential function of the job for a driver to be able to

look left, right, and behind. (Doc. # 64 at 49:18-24).

Attendance at work also was an essential function of the job

as this was not a position that could be performed at home.

(Id. at 49:25-50:8). Additionally, it was an essential

function of the job to be able to reach and grasp objects; to

have manual dexterity or fine motor skills; to work in an

area that is somewhat uncomfortable due to extreme

temperature, noise levels, or other conditions; to operate a

vehicle; and to lift and carry objects up to 50 pounds. (Id.

at 47:20-48:4; Doc. # 64-1 at 27-29).

The School Board has a policy providing twelve weeks of

unpaid leave when the employee is unable to perform his or

her job functions due to an employee’s serious health

condition under the FMLA. (Doc. # 64-3 at 5-12). This policy

requires any accrued paid leave to run concurrently. (Id. at

8). Additionally, any employee who takes leave for this reason

must provide a fitness-for-duty certification “that

specifically addresses the staff member’s ability to perform

the essential functions of his/her job” before returning to

work. (Id. at 11). During the period of leave under this

policy, the employee does not accrue leave or any other

benefits. (Id.).

The School Board also has an employee benefits policy.

(Doc. # 64-3 at 1-4). This policy provides that, while an

employee is on unpaid, non-FMLA leave, the employee is

“required to pay the entire cost of all insurance plans.”

(Id. at 3).

The School Board’s leave of absence policy provides that

it may grant a leave of absence “for a specific period of

time with the right to return to employment upon the

expiration of leave.” (Id. at 13). It also has a policy

providing a paid leave of absence of up to ten days for any

work-related injury or illness during the year in which the

illness or injury occurred. (Id. at 14). An employee may use

accrued sick leave when the employee is unable to perform his

or her job duties. (Id. at 17).

Collins was a member of the bargaining unit represented

by SEIU. (Doc. # 64 at 83:17-19, 93:7-10). SEIU and the School

Board entered into a collective bargaining agreement (CBA)

that governed Collins’ employment. (Doc. # 64-3 at 20-77).

This CBA provided that an extended, unpaid leave of absence

may be granted for health or other reasons, but that leave

shall not exceed 30 days. (Id. at 45). However, this is not

a job-protected leave. (Id. at 46). Upon return from leave,

the employee will be placed in the same position if there is

a vacancy available. (Id.).

Collins was granted all of the leave provided under the

School Board’s policies and the CBA with the union. (Doc. #

65-3 at 53; Doc. # 64 at 97:19-22, 98:21-23).

B. Earlier Accidents and Performance Reviews

On January 15, 2010, eight years before the accident at

issue in this case, Collins reported that she experienced a

work-related injury and made a claim for workers’

compensation. (Doc. # 64 at 102:9-12, 103:2-8; Doc. # 64-4 at

2). As a result of this accident, Collins requested and was

granted leave from work. (Doc. # 64 at 107:16-22; Doc. # 64-

4 at 10). Ultimately, by March 25, 2010, she was released

from care at maximum medical improvement with a zero percent

impairment rating. (Doc. # 64 at 112:8-14; Doc. # 64-4 at

13).

The School Board reviews every accident involving a bus

driver. (Doc. # 64 at 109:5-8). If the driver is found at

fault or the accident was preventable, then it assesses

points, which may result in disciplinary action. (Id. at

109:9-12).

Although it knew of Collins’ claim for workers’

compensation benefits, the School Board concluded that she

was not at fault for this accident in 2010 and she was not

disciplined. (Doc. # 64 at 109:13-19; Doc. # 64-4 at 11).

Collins was also not disciplined for any other accidents that

occurred thereafter. (Doc. # 64-4 at 15).

On March 15, 2010, two months after she reported her

first work-related injury, Collins received a mostly positive

performance evaluation. (Doc. # 64 at 110:18-111:1; Doc. #

64-4 at 12). Thereafter, she continued to receive positive

performance evaluations in 2012, 2013, 2014, 2015, 2016,

2017, and 2018. (Doc. # 64-4 at 19-20, 23-27; Doc. # 64 at

117:7-118:2, 120:3-122:8). She also received a commendation

for her performance on March 6, 2014. (Doc. # 64-4 at 21).

During the first week of April 2018, Collins reported to

a supervisor, Area Manager Felicia Salters, “about harassment

and bullying at the time clock by supervisor Karen Upchurch

and co-workers.” (Doc. # 67-6 at 3). “Salters moved the time

clock a week later.” (Id.).

C. April 2018 Accident and Subsequent Claim

On April 19, 2018, Collins was involved in accident where

a fire truck hit the driver’s side of her bus while she was

stationary at a red light. (Doc. # 64 at 122:16-19; Doc. #

64-4 at 45). The following morning, Collins reported the

accident to her supervisor. (Doc. # 64 at 126:11-127:5).

After reporting this injury and making the workers’

compensation claim, Collins was treated by Dr. Johnson, a

doctor provided by the workers’ compensation carrier, the

same day that she reported the injury. (Doc. # 64-4 at 29-

31). He treated her for a neck sprain following a motor

vehicle accident and found that she had no functional

limitations. (Id.). By May 3, 2018, Dr. Johnson found that

Collins had reached maximum medical improvement with a zero

percent impairment rating and no functional limitations. (Id.

at 35-36).

Despite having knowledge of Collins’ claim for workers’

compensation benefits, the School Board concluded that the

accident on April 19th was not preventable and she was not

disciplined in any way related to this accident. (Id. at 44;

Doc. # 64 at 136:17-21).

Around this time, Salters “threatened to send [Collins]

to the Office of Professional Standards for stealing time a

week after [she] filed her worker’s compensation claim”

because Salters “said no one could work that much overtime in

two weeks.” (Doc. # 67-6 at 5).

Later, in August 2018 when the new school year started,

Collins’s “seniority to bid on a newer bus was taken away”

and “[a] week later her bus was dead lined.” (Id. at 6). As

a result, Collins drove “faulty buses and did not have a

permanent bus from August 2018 through November 16, 2018.”

(Id.). She “continue[d] to have serious unsafe, hazardous

mechanical problems with her buses, electrical wiring, lifts

falling out, [a] bus catching on fire, [and a] serious gas

leak with students aboard.” (Id. at 7). Despite her complaints

about the faulty buses, “[n]o investigations, nothing was

ever done about it.” (Id.).

D. Multiple Leaves of Absence

Collins did not seek any leave related to the April 19,

2018, injury until November 29, 2018. (Doc. # 64 at 145:8-

146:1; Doc. # 64-4 at 47). On November 29, 2018, she made a

request for an initial leave of absence. (Doc. # 64-4 at 47;

Doc. # 64 at 144:12-14, 145:13-15). She reported that this

leave would be a short-term leave of 30 days or less. (Doc.

# 64-4 at 47). The reason provided for this leave was “sick

due to injury to neck.” (Id.).

Her leave request was approved the next day by her

supervisor and two days later by Human Resources and the

School Board. (Id.). Her initial leave request was approved

through December 24, 2018, but it was later extended through

February 28, 2019. (Id.).

On November 30, 2018, Collins’ doctor certified that

that she was unable to work because she could not drive a

bus. (Doc. # 64-5 at 1-4). Her doctor recommended a leave of

absence through December 24, 2018, and then Collins would

attempt to return to work. (Id. at 3). Her doctor also noted

that she may need a leave of absence of three months in order

to obtain surgery. (Id.).

Collins was granted a three month leave of absence, but

she never attempted to return to work. (Doc. # 64 at 145:24-

146:1). Despite her request for leave and her doctor’s

certification, she testified in her deposition she could have

performed the essential functions of the job at the time of

this leave. (Id. at 146:13-15, 209:15-25). Specifically, when

asked if she was “able to perform the essential functions of

[her] job” between November 27, 2018, and February 28, 2019,

Collins responded “Yes.” (Id. at 146:10-15).

In February 2019, Collins reported to her doctor that

she had weakness and limited mobility in her left arm and

that she could not use her arm often. (Doc. # 64-5 at 7-8).

She testified that this mobility in her left arm did not

impact her ability to perform her job functions. (Doc. # 64

at 161:5-11). Yet, she did not return to work. (Id. at 162:25-

163:6).

While Collins was on a leave of absence, and after it

had knowledge of her April 2018 workers’ compensation claim,

the School Board evaluated her performance on February 14,

2019, and gave her a positive performance evaluation. (Doc.

# 64-5 at 9; Doc. # 64 at 163:14-19).

Dr. Ramos, a doctor provided by the workers’

compensation carrier, treated Collins on February 18, 2019.

(Doc. # 64-5 at 10-12). Dr. Ramos concluded that Collins had

reached maximum medical improvement with a zero percent

impairment rating and no functional limitations. (Id. at 10-

15).

After receiving three months of leave and exhausting her

leave under the FMLA, Collins sought a second leave of absence

on March 5, 2019, in order to continue her leave from work.

(Id. at 17). In this request, she sought leave from March 1,

2019, until April 8, 2019. (Id.). This leave request was

granted the next day. (Id.).

To support this leave request, Collins provided a note

from Dr. Wall indicating that she was unable to work as of

February 26, 2019, and that she was to return for a

reevaluation in 30 days. (Doc. # 64-5 at 16). He informed

Collins the same day that “she is going to require surgery.”

(Doc. # 65-1 at 2).

Collins sought an evaluation with Dr. Bono at BioSpine

for surgery on March 4, 2019. (Doc. # 64-5 at 18-28). In this

evaluation, she noted that she was experiencing weakness in

her left arm, having difficulty walking, and experiencing

numbness in her extremities. (Id.; Doc. # 65-1 at 9). Dr.

Bono recommended surgical intervention. (Doc. # 64-5 at 27).

Despite the doctor’s opinion that the injury would

restrict or impair her ability to drive a bus, Collins

testified that she was able to perform the essential functions

of the job at this time. (Doc. # 64 at 146:10-22, 162:15-24;

Doc. # 64-5 at 28).

Nonetheless, on April 1, 2019, Collins scheduled surgery

on her neck for April 10, 2019. (Doc. # 64-6 at 1-2; Doc. #

65 at 281:13-15). That same day, Dr. Bono wrote a note where

he indicated that Collins “will be having a cervical disc

replacement on 4/10/2019” and asked for her to be excused

“from work/school from 4/10/2019 to 5/22/2019 and following

date will be determined at post op appointment.” (Doc. # 64-

2 at 37).

On April 3, 2019, Collins made a third request for a

leave of absence. (Doc. # 64 at 180:17-20; Doc. # 64-6 at 3).

She requested leave from April 9, 2019, until May 22, 2019,

which was a continuation of the leave of absence that was to

expire on April 8, 2019. (Doc. # 64-6 at 3). She explained

that the reason for the leave of absence was “surgery.” (Id.;

Doc. # 64 at 181:3-9).

This request was granted the same day that Collins

requested it, and the School Board indicated that her position

would be held until May 22, 2019. (Doc. # 64-6 at 3; Doc. #

64 at 181:10-12).

Despite Collins’ representation that she needed this

leave of absence for surgery, she cancelled the surgery

scheduled for April 10, 2019. (Doc. # 65-1 at 31). Although

the School Board’s Human Resources Director, Sherry

Aemisegger, asserted that Collins had not told HR about the

cancelled surgery (Doc. # 64-6 at 29), Collins averred in her

affidavit that she told an HR assistant that the surgery was

cancelled. (Doc. # 67-6 at 17). Collins did not return to

work even though she testified that she could have performed

her job functions at that time. (Doc. # 64-6 at 29; Doc. # 64

at 146:10-22, 162:15-163:6).

The last time that Collins saw Dr. Bono was on April 1,

2019, and she did not thereafter reschedule the surgery. (Doc.

# 64 at 37:11-19; Doc. # 65 at 281:9-21, 317:22-24; Doc. #

65-1 at 32; Doc. # 64-2 at 27). No other doctor recommended

surgery for Collins or opined that she needed a leave of

absence for surgery. (Doc. # 65 at 317:25-318:2).

Collins again sought treatment from Dr. Ramos beginning

on April 8, 2019. (Doc. # 64-6 at 5-7). Dr. Ramos treated her

for a cervical strain, but he opined that it was undetermined

whether this strain was work-related. (Id.). He concluded

that she had no functional limitations. (Id.). While Dr. Ramos

recorded that Collins “has significant difficulties with the

physical requirements of her job” and she has a limited range

of motion, Collins testified in her deposition that she could

have performed her job duties at this time. (Id. at 8-11;

Doc. # 64 at 146:10-22, 162:15-24, 209:15-25).

By April 29, 2019, Dr. Ramos concluded that no further

clinical services were needed, Collins reached maximum

medical improvement with a zero percent impairment rating and

no functional limitations, and that it was undetermined as to

whether her injury was work-related. (Doc. # 64-6 at 23-24).

She was discharged from care. (Id. at 26-28).

Yet, according to Collins, she has “a Cervical Herniated

Disc in her neck and needs surgery to correct.” (Doc. # 64-2

at 13). Still, she failed to identify in her answers to

interrogatories a major life activity that is substantially

limited by her condition, merely stating that the herniated

disc “makes it hard to do manual labor” and “substantially

limit[s] [her] performing a major life activity as compared

to most people in the general population.” (Id. at 14). At

most, in her amended answers to the School Board’s requests

for production, Collins stated: “Neck pain, limited mobility

makes it hard to do manual labor compared to most people in

the general population. Pain, in neck, thinking,

concentration, sleep, scientific evidence (MRI) Cervical disc

herniation.” (Doc. # 67-4 at 60).

Collins contends that, on April 29, 2019, she did not

have use of her neck, shoulder, arm, and hand and also had

limited mobility and function. (Doc. # 65-3 at 13).

Nonetheless, she testified in her deposition that, at this

time, she was able to perform her job functions. (Doc. # 64

at 146:10-22, 162:15-24).

E. Plaintiff’s Fourth Request for a Leave of Absence

On May 14, 2019, Collins made a fourth request for a

leave of absence. (Doc. # 64-6 at 29; Doc. # 64 at 190:8-10).

In this request, she requested a five-day leave of absence,

from May 23, 2019, to May 28, 2019. (Doc. # 64-6 at 29).

On May 14, 2019, Collins informed the School Board, for

the first time, that her surgery did not occur on April 10,

2019. (Id.). HR Director Aemisegger explained that Collins’

third request for a leave of absence was granted based on Dr.

Bono’s opinion that she would need to be excused from work

due to the surgery and that she should have informed the

School Board if the reason for leave no longer existed. (Id.).

With respect to Collins’ fourth request for a leave of

absence, the School Board denied this request, explaining

that she had “exhausted any further leaves” of absence. (Id.).

However, it gave Collins two choices: (1) return to work on

May 23, 2019, with a doctor’s note indicating that she was

fit for duty or (2) resign her position and reapply when she

is able to return to work. (Id.).

Collins contends that she needed this five-day leave of

absence to have surgery. (Doc. # 65 at 350:8-16). However, at

the time she requested this fourth leave of absence, she did

not have surgery scheduled. (Id. at 241:5-7; Doc. # 64 at

37:11-19). She admits that she was not going to have surgery

during the five-day leave of absence. (Doc. # 64 at 78:1-6).

Instead, she contends that she wanted the leave to take her

to the end of the school year and then she could have the

surgery “over the summer.” (Doc. # 65 at 240:14-17, 350:11-

12). Collins admits that this surgery was never scheduled

“over the summer.” (Id. at 241:5-7; Doc. # 64-2 at 27).

Collins would not have returned to work on May 29, 2019,

even if this leave had been granted, because that was the

last day of school. (Doc. # 64 at 191:6-11). She intended to

come back to work in “August, the new school year.” (Id.).

F. Plaintiff’s Resignation

Despite the fact that Collins contends she could have

performed her job functions as of May 23, 2019, she did not

return to work. (Doc. # 64 at 162:15-24, 209:15-25; Doc. # 65

at 332:9-12). While Collins never went to a doctor to obtain

a fitness-for-duty note, Dr. Ramos had certified on April 29,

2019, that she had no functional limitations and could have

returned to work. (Doc. # 65 at 392:1-3; Doc. # 64-6 at 23-

24).

On May 22, 2019, Collins resigned her employment and has

not applied for any vacancy since her resignation. (Doc. #

65-3 at 23; Doc. # 65 at 470:20-471:4). The School Board

informed Collins that her health insurance benefits would

continue through May 31, 2019. (Doc. # 64-2 at 4). She,

however, did not have the surgery during this period of time.

(Doc. # 64 at 37:11-16; Doc. # 65 at 241:5-7). In addition,

after her resignation, she elected to continue her health

benefits through COBRA coverage. (Doc. # 64-6 at 37).

Collins certified to the Department of Economic

Opportunity that she was able and available for work from May

26, 2019, through June 1, 2019, which included part of the

five-day leave of absence sought from Defendant. (Id. at 32).

On July 18, 2019, Collins was evaluated by Dr.

Christopher Lee, another doctor provided by the workers’

compensation carrier. (Id. at 38-39). Dr. Lee opined that

Collins’ injury was not work-related and she achieved maximum

medical improvement with a zero percent impairment rating and

no functional limitations. (Id.). Dr. Lee opined that no

further clinical services were needed, and her work status

was full duty. (Id. at 38-39, 45).

On September 13, 2019, Collins created an account with

the Social Security Administration and applied for disability

benefits related to her neck injury. (Doc. # 65-3 at 1-2;

Doc. # 65 at 334:18-22, 335:6-7, 335:25-336:5, 337:1-9,

346:4-6). As part of her application, the Social Security

Administration sought records from the medical providers who

treated Collins related to her neck injury. (Doc. # 65-3 at

3-6). Collins refused to provide any explanation for her

request for social security disability benefits during her

deposition. (Doc. # 65 at 335:18-22, 336:9-24).

According to Collins, some of her co-workers were

permitted to stay on medical leave longer than she was. (Doc.

# 67-6 at 24-26). For example, bus driver Stephanie Hayes

also had a cervical disc injury and had the same cervical

disc replacement surgery Collins maintains she needed. (Id.

at 24). Hayes was out “on unpaid medical leave” with “no

accrued sick leave” from January 2018 through July 5, 2018,

at which point she returned to work with the School Board.

(Id.). She worked for the School Board until her retirement

in 2020. (Id.).

Collins initiated this action against the School Board

on August 27, 2019, asserting claims for failure to

accommodate under the Americans with Disabilities Act (ADA)

(Count I), failure to accommodate and disability

discrimination under the Florida Civil Rights Act (FCRA)

(Count II), and worker’s compensation interference and

retaliation under Florida Statute § 440.205 (Count III).

(Doc. # 1). The School Board filed its answer on October 22,

2019. (Doc. # 14). The case then proceeded through discovery.

The School Board moved for summary judgment on October

9, 2020. (Doc. # 63). Collins has responded (Doc. # 67), and

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. Failure to Accommodate and Disability Discrimination

In her complaint, Collins asserts claims for failure to

accommodate under the ADA (Count I) and failure to accommodate

and disability discrimination under the FCRA (Count II).

(Doc. # 1 at 5-8). “Given the parallel structure of the

statutes, this Court analyzes state-law disability

discrimination claims under the FCRA using the same framework

as it does for claims made under the federal” ADA. D’Onofrio

v. Costco Wholesale Corp., 964 F.3d 1014, 1021 (11th Cir.

2020).

In order to succeed on a discrimination claim, Collins

must show that: “(1) [s]he is disabled; (2) [s]he was a

qualified individual at the relevant time, meaning [s]he

could perform the essential functions of the job in question

with or without reasonable accommodations; and (3) [s]he was

discriminated against [] because of [her] disability.” Scott

v. Shoe Show, Inc., 38 F. Supp. 3d 1343, 1359 (N.D. Ga.

2014)(citation omitted). To prove a failure to accommodate,

Collins must show that “(1) she was a qualified individual

with a disability; (2) she made a specific request for a

reasonable accommodation; and (3) her employer, [the School

Board], failed to provide a reasonable accommodation, or

engage in the requisite interactive process in order to

identify a reasonable accommodation.” D’Onofrio, 964 F.3d at

1021.

“The term ‘disability’ means, with respect to an

individual — (A) a physical or mental impairment that

substantially limits one or more major life activities of

such individual; (B) a record of such an impairment; or (C)

being regarded as having such an impairment.” 42 U.S.C. §

12102(1). “[C]ourts are instructed that ‘[t]he term

“substantially limits” shall be construed broadly in favor of

expansive coverage, to the maximum extent permitted by the

terms of the ADA.’” Vaughan v. World Changers Church Int’l,

Inc., No. 1:13-CV-0746-AT, 2014 WL 4978439, at *8–9 (N.D. Ga.

Sept. 16, 2014)(quoting 29 C.F.R. § 1630.2(j)(1)(i)). “Under

this more lenient standard, courts consider whether an

impairment ‘substantially limits the ability of an individual

to perform a major life activity as compared to most people

in the general population.’” Id. (quoting 29 C.F.R. §

1630.2(j)(ii)). Nevertheless, Collins bears the burden of

establishing that her impairment substantially limited a

major life activity. See Hunter v. U.S. Postal Serv., 535 F.

App’x 869, 872 (11th Cir. 2013)(“Hunter bears the burden of

“offering evidence that the extent of the limitation” caused

by the impairment is substantial.” (citation omitted)).

Collins’s claims fail because she is not disabled. In

her sworn answers to interrogatories, Collins stated that she

has “a Cervical Herniated Disc in her neck and needs surgery

to correct.” (Doc. # 64-2 at 13). Yet, in these same answers

to interrogatories, she failed to identify a major life

activity that is substantially limited by her condition

besides stating that the herniated disc “makes it hard to do

manual labor” and “substantially limit[s] [her] performing a

major life activity as compared to most people in the general

population.” (Id. at 14).

Reading her amended answers to the School Board’s

requests for production liberally, Collins has asserted that

her neck injury limited the major life activities of “manual

labor,” “thinking, concentration, [and] sleep.” (Doc. # 67-4

at 60). However, these vague assertions of substantial

impairments are insufficient. See Hunter, 535 F. App’x at

872–73 (“She contends, with no evidentiary support, that she

has substantial impairments in sleeping, manual tasks, and

her general quality of life, including her ability to garden

and care for her grandchildren. These amorphous, unsupported

assertions, however, are exactly the kind we have dismissed

as insufficient in similar cases.”).

Furthermore, she also stated that she “can perform all

the essential functions of a school bus driver” “without a[n]

accommodation,” (Doc. # 64-2 at 15-16), which she reaffirmed

in her deposition testimony. (Doc. # 64 at 146:10-15, 161:5-

13, 162:15-24). Finally, Dr. Ramos concluded by April 29,

2019 — before Collins’ fourth request for a leave of absence

on May 14, 2019 — that Collins had no functional limitations,

had a zero percent impairment rating, required no further

clinical services, and was discharged from care. (Doc. # 64-

6 at 23-28). Given this, there is no genuine issue of material

fact regarding whether Collins is disabled. See Brewer v.

Sears, Roebuck & Co., 315 F. Supp. 2d 295, 298 (W.D.N.Y.

2004)(“Plaintiff has failed to establish the first element

that he is disabled within the meaning of the ADA. . . .

Although he had a herniated disk in his back, the evidence

showed that it had healed and that his doctor cleared him to

return to work without any restrictions.”).

Even if Collins were disabled, her failure to

accommodate claim would still fail. “[T]here are limits to

the accommodations an employer must provide. The key is

‘reasonability,’ meaning an employer is not required to

accommodate an employee in any manner that the employee

desires — or even provide that employee’s preferred

accommodation.” D’Onofrio, 964 F.3d at 1022. “[I]f an

employee does not require an accommodation to perform her

essential job functions, then the employer is under no

obligation to make an accommodation, even if the employee

requests an accommodation that is reasonable and could be

easily provided.” Id. “[E]ven if an employer has voluntarily

provided accommodations to the employee historically, that

employer is not obligated to continue providing them and can

discontinue such when they exceed what is legally required

under the ADA.” Id.

Here, Collins admitted that she could perform all the

essential functions of her job without an accommodation.

(Doc. # 64-2 at 16). And, even if Collins did require an

accommodation, her request for an additional five-day leave

of absence was not reasonable. The School Board had already

provided Collins months of leave, including granting her

third leave request based on her scheduled surgery in April

2019. After cancelling the surgery, Collins requested yet

another leave of absence in order to have the surgery; yet,

Collins did not have the surgery rescheduled during that five-

day period or for any time after that period. (Doc. # 64 at

37:11-19; Doc. # 65 at 281:9-21, 317:22-24; Doc. # 65-1 at

32; Doc. # 64-2 at 27). Without having the surgery

rescheduled, Collins’s request for yet another medical leave

of absence based on the need for surgery was unreasonable as

a matter of law.

Finally, even if she were disabled, Collins’s disparate

treatment disability discrimination claim would still fail

because she did not suffer an adverse employment action. Here,

because Collins resigned (Doc. # 65-3 at 23), the potential

adverse employment action is constructive discharge. “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 School Board that the actions

of which Collins complains fall short of establishing

constructive discharge. (Doc. # 63 at 20-22). At the time of

her resignation in May 2019, Collins had been on a continuous

leave of absence since November 27, 2019, and thus had not

been subjected to any objectively intolerable working

conditions for around six months. While Collins outlines

certain unpleasant interactions with supervisors in her

affidavit and unpleasant working conditions in the form of

“faulty buses” (Doc. # 67-6 at 3-11), these conditions were

not objectively intolerable and almost entirely preceded her

leave that began in November 2019. Additionally, the School

Board gave her the option to come back to work at the end of

her leave of absence. See Coppinger v. Wal-Mart Stores, Inc.,

No. 3:07CV458/MCR/MD, 2009 WL 3163211, at *10 (N.D. Fla. Sept.

30, 2009)(“[I]t would defy common sense to conclude that an

employer who invites an employee back to work and encourages

him to apply for a position higher than his current job is

deliberately acting to make the employee’s work conditions

intolerable.”). These facts are insufficient to establish a

constructive discharge.

Nor has Collins identified a similarly situated

individual without a disability who was treated more

favorably. Collins has only identified co-workers who were

also granted medical leave to have surgeries, but who

continued their employment with the School Board. (Doc. # 67-

4 at 56-57).

Therefore, summary judgment is granted in favor of the

School Board on Counts I and II.

B. Worker’s Compensation Retaliation

In Count III of the complaint, Collins asserts a claim

for worker’s compensation retaliation under Florida Statute

§ 440. 205. (Doc. # 1 at 8). Section 440. 205 provides that:

“No employer shall discharge, threaten to discharge,

intimidate, or coerce any employee by reason of such

employee’s valid claim for compensation or attempt to claim

compensation under the Workers’ Compensation Law.” Fla. Stat.

§ 440.205.

“A [Section] 440.205 claim has the same elements as

employment retaliation claims under federal law: (1) the

employee engaged in statutorily protected activity, (2) was

subjected to an adverse employment action, and (3) there was

a causal relationship between the protected activity and the

adverse employment action.” Juback v. Michaels Stores, Inc.,

143 F. Supp. 3d 1195, 1203 (M.D. Fla. 2015). “Such claims are

subject to the burden-shifting framework set out in McDonnell

Douglas Corporation v. Green, 411 U.S. 792 [] (1973), under

which the plaintiff must come forward with a prima facie

case.” Id. “The burden then shifts to the defendant to

articulate a non-discriminatory reason for the adverse

action, and if that burden is met, the plaintiff must

demonstrate that the defendant’s reason was pretextual.” Id.

This claim fails for multiple reasons. First, Collins

has not shown that she was subjected to a materially adverse

employment action. The only adverse action Collins identifies

in her response is the School Board’s denial of her final

request to extend her leave of absence by five days, after

she had already been on leave for nearly six months. (Doc. #

67 at 18). In denying the request, the School Board gave

Collins the option to return to work, but Collins resigned

instead. No reasonable jury could find that the School Board’s

action in denying another extension of Collins’s leave was

the type that could dissuade a reasonable worker from making

a workers’ compensation claim in the first place. See Juback,

143 F. Supp. 3d at 1206 (“To demonstrate that a challenged

employment action was ‘materially adverse,’ a plaintiff must

show ‘it well might have dissuaded a reasonable worker from

[engaging in protected activity].’” (citation omitted)).

Second, Collins has not shown causation. She made her

request for worker’s compensation in April 2018 and went out

on medical leave in November 2018, but did not resign until

May 2019 when her leave was over. See Billups v. Emerald Coast

Utils. Auth., 714 F. App’x 929, 937 (11th Cir. 2017)(“[T]he

temporal proximity between Billups worker’s compensation

claim and his termination — over six months — was not

sufficiently close to establish a causal connection.”); see

also Pericich v. Climatrol, Inc., 523 So. 2d 684, 686 (Fla.

3d DCA 1988)(stating there was no evidence of retaliation

where the defendant “continued to employ [plaintiff] for over

a year after he filed his compensation claim” and terminated

him only “when it became apparent [he] would be physically

unable to resume his former position”). The “faulty buses”

Collins had to drive before she went out on medical leave and

her unpleasant interactions with Salters in April 2018 are

not sufficient to show causation, given Collins was granted

nearly six months of medical leave for her injury after those

events.

Even if Collins had established a prima facie case of

retaliation, the School Board has produced a legitimate non-

retaliatory reason for its actions — specifically, Collins’s

“failure to return to work.” (Doc. # 63 at 23). And Collins

has not presented sufficient evidence to establish a genuine

issue of material fact regarding pretext. Although some

fellow employees who also filed worker’s compensation claims

were allowed to stay out on leave longer than Collins (Doc.

# 67-6 at 24-26), this does not support that Collins was

retaliated against for filing a worker’s compensation claim.

Furthermore, Collins was not disciplined for the accident

that led to her worker’s compensation claim and was granted

three requests for leave. (Doc. # 64-4 at 44; Doc. # 64 at

136:17-21).

There is no genuine issue of material fact regarding

Collins’s worker’s compensation retaliation claim, and

summary judgment is granted in favor of the School Board on

Count III.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) Defendant School Board of Pinellas County, Florida’s

Motion for Summary Judgment (Doc. # 63) is GRANTED.

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

Defendant School Board of Pinellas County, Florida and

against pro se Plaintiff Angela M. Collins on all counts

of the complaint.

(3) Thereafter, the Clerk is directed to terminate all

pending deadlines and CLOSE the case.

DONE and ORDERED in Chambers in Tampa, Florida, this

19th day of November, 2020.

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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