Bracero v. The City of Orlando

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

DOLORES BRACERO,

Plaintiff,

v. Case No: 6:19-cv-1657-WWB-GJK

THE CITY OF ORLANDO,

Defendant.

/

ORDER

THIS CAUSE is before the Court on Defendant’s Motion for Summary Judgment

(Doc. 38). Plaintiff did not file a response and the time to do so has now passed.

Defendant’s Motion will be granted.

I. BACKGROUND

Plaintiff became employed by the Orlando Police Department (“OPD”) on August

16, 2005. (Doc. 37-4 at 4). OPD officers are represented by the Orlando Lodge #25,

Fraternal Order of Police, Inc. (“FOP”). (Doc. 37-7 at 4). Thus, Plaintiff, as an OPD

officer, is subject to the terms and conditions of the Collective Bargaining Agreement

(“CBA”) entered into between the OPD and the FOP, which governs, among other things,

Plaintiff’s pay scale and raises. (Doc. 37-1 at 73:10–12; Doc. 37-6 at 13–15; Doc. 37-7

at 1, 5–9).

Plaintiff injured her right hand and wrist on October 27, 2015, during an on-duty

training focused on combative handcuff arrestees. (Doc. 37-4 at 4, 10). Plaintiff filed a

workers’ compensation claim the same day, and a second claim on December 7, 2017.

(Doc. 21, ¶ 105). As a result of Defendant’s actions after her injury, on June 19, 2018,

Plaintiff filed a charge of discrimination with the Equal Opportunity Employment

Commission (“EEOC”), alleging that she was denied medical pension benefits and

promotions and was subjected to different terms and conditions of employment,

harassment, and intimidation. (Doc. 37-4 at 2–3). More specifically, she alleged that she

was forced to work from a storage closet on mainly administrative and secretarial tasks,

denied a work vehicle to carry out assigned duties, denied authentic, substantive

performance reviews from her superiors, and denied a promotion to sergeant despite

scoring at the same level or above her non-disabled counterparts. (Id. at 3). On June

17, 2019, the EEOC issued its Dismissal and Notice of Rights indicating it was unable to

conclude that the information provided by Plaintiff established violations of law. (Doc. 37-

3 at 56). As a result, Plaintiff filed this lawsuit against Defendant alleging various claims

for discrimination and retaliation.

First, Plaintiff complains that after her injury she was placed in mediocre and

degrading positions despite Defendant’s ability to open an alternative position for her.

(Doc. 37-1 at 61:5–18). On November 10, 2015, Plaintiff was placed on alternative duty

in the IRIS room, watching surveillance cameras. (Doc. 37-1 at 19:10–12; Doc. 37-5 at

47). Prior to her injury, Plaintiff worked the night shift. (Doc. 37-1 at 82:19–20). After her

injury, the only light-duty night shift Plaintiff could work was the IRIS camera and she did

not request that position or any night position once she was switched to the day shift. (Id.

at 82:20–83:4, 83:20–84:5). Pursuant to OPD policy, alternative duty assignments are at

the sole discretion of management and are generally utilized on an interim basis. (Doc.

37-7 at 10–11).

At some point, Plaintiff was reassigned from IRIS to the information desk, which

was referred to as the “fish bowl.” (Doc. 37-1 at 19:10–12, 21–24). OPD was known to

assign employees with disciplinary issues to the information desk. (Id. at 68:4–9). Plaintiff

was also assigned to scan documents in the professional standards office and to transport

people from the parking lot to the building. (Id. at 19:24–20:4). After two to three weeks,

Plaintiff was removed from transporting people and returned to the information desk upon

advising a supervisor that she was unable to shift gears with her injured hand. (Id. at

117:4–15). Ultimately, Plaintiff was assigned to information technology (“IT”). (Id. at

20:5–7).

In IT, as part of a new computer rollout project, Plaintiff directed and managed the

delivery of IT equipment, computer training, and compliance. (Id. at 18:4–9). She

collaborated with City Hall project managers to coordinate schedules, workshops, and

deployment details. (Id. at 18:12–15). She also tracked the project and analyzed

compliance metrics for management. (Id. at 18:16–18). Plaintiff used her personal

vehicle to distribute laptops to the training center, but she chose not to seek

reimbursement for her mileage. (Id. at 24:13–16, 25:12–23; Doc. 37-2 at 190:4–7, 10–

12). While working in IT, Plaintiff was assigned to a room that had previously been used

as a storage space. (Doc. 37-1 at 22:15–17). After she complained, one of her

supervisors put in carpet and office furniture. (Id. at 22:20–25, 125:19–126:2, 16–20).

Despite her contention that Defendant could have opened an alternative position for her,

Plaintiff could not provide a specific example of OPD creating an alternative position for

an employee, other than the one created for her in order to keep her on light duty. (Doc.

37-1 at 61:19–20; Doc. 37-2 at 191:14–17).

Plaintiff was qualified to use a handgun prior to her injury in October 2015. (Id. at

30:18–22). As a law enforcement officer, Plaintiff was required to qualify with firearms

every two years, and she is unable to do so as a result of her injury. (Id. at 30:25–31:4;

Doc. 37-5 at 67). If an officer fails to demonstrate proficiency under the required firearms

qualifications standard, he or she “shall not perform the duties of a sworn officer.” Fla.

Admin. Code Rule 11B-27.00212(14)(a). The position of sergeant is a sworn position

requiring an individual in the position to be proficient in the use of a firearm. (Doc. 37-6

at 54–56). Nonetheless, Plaintiff applied for the position of sergeant after her injury. (Doc.

37-1 at 31:5–10).

The Sergeant’s exam is administered every two years and candidates who score

well enough on the exam are placed on the Sergeant’s Promotional List for four years.

(Doc. 37-7 at 1). An officer’s exam result, however, is not the only factor considered in

the promotion process. (Id. at 2). Notably, two females, not on light duty, were promoted

to sergeant before Plaintiff filed her charge of discrimination. (Doc. 37-1 at 87:10–18).

Plaintiff was not aware of anyone promoted to sergeant while on permanent light duty

and unable to use a firearm. (Id. at 32:8–11). In fact, no one, male or female, was

promoted while they were on permanent, light duty or accommodated in that manner. (Id.

at 52:17–21; Doc. 37-2 at 198:24–199:1).

Plaintiff maintains the belief that Defendant could have accommodated her by

making her a supervisor in the Criminal Investigations Division (“CID”) and not requiring

her to go out into the field. (Doc. 37-2 at 198:18–23). She admits, however, that she

knows of no one placed in CID while on alternative duty who had not been previously

assigned to that division. (Doc. 37-1 at 55:4–12, 24–56:5, 22–24). Further, although

Plaintiff complains that she lost the income differential provided for night shift, she

admitted she did not ask to be returned to the night shift. (Id. at 83:20–84:3).

In addition to the changes in her position, Plaintiff complains that Defendant

discriminated against her by denying her request to maintain an assigned police vehicle

after she was injured. (See, e.g., Doc. 21, ¶ 22). However, beginning in 2015,

Defendant’s alternative duty assignment policy prohibited those on alternative duty for

longer than thirty days from participating in the assigned vehicle program. (Doc. 37-7 at

2, 11). One officer, Kimberly Brewster, was on alternative duty prior to the revised policy

and was allowed to keep her assigned vehicle. (Id. at 2). Although, Plaintiff complained

that other male officers on light duty were able to keep their take-home cars, she did not

know specifics such as how long the officers were on limited duty or when their light duty

started. (Doc. 21, ¶ 22; Doc. 37-1 at 50:1–22, 103:16–104:3). Plaintiff was provided a

vehicle assigned to the Recruiting Section to use during work hours. (Doc. 37-5 at 40).

Plaintiff also claims that she was denied authentic, substantive performance

reviews from her superiors, which, she argues, could cause her to be written up or fired

or affect her compensation. (Doc. 37-1 at 52:22–53:11). However, Article 43 of the CBA

provides for compensation based upon an officer’s respective grade, without considering

performance reviews. (Doc. 37-7 at 1). Defendant found Plaintiff had met her standards

and she was given wage increases accordingly. (Doc. 37-1 at 53:16–22; 54:2–3).

Additionally, Plaintiff emphasizes that her supervisor denied her request to attend an

interrogations class until the union became involved. (Id. at 58:18–59:1). Plaintiff was

ultimately able to attend the class. (Id. at 59:6–7). Finally, Plaintiff asked, unsuccessfully,

that handicap buttons be installed on some of the heavier doors. (Id. at 65:21–25, 66:4–

9, 14–15).

Plaintiff was notified on August 9, 2016, that under OPD Policy & Procedure

1619.5, employees on alternative duty for one continuous year or for twelve cumulative

months in an eighteen-month period had to return to full duty or would otherwise be

terminated. (Doc. 37-5 at 47). Plaintiff was reminded she would reach one year of

alternative duty on November 10, 2016, and that Article 23.6 of the CBA provides that

employees who are unable to perform the required duties of their rank because of a line

of duty injury will not be terminated for one hundred eighty days following their submission

of their disability pension application. (Id. at 47–48). Plaintiff filed her application for

disability pension on September 1, 2016.1 (Doc. 37-6 at 17). In March 2017, Plaintiff’s

request to be placed in a long-term alternative duty assignment was approved, providing

her additional time to rehabilitate and return to full duty, but also rendering her ineligible

for a pension until she either refiled for a change in her medical condition or requested

removal from the long-term alternative duty assignment. (Doc. 37-5 at 45–46, 65–66).

Plaintiff resubmitted her pension application on December 4, 2017. (Doc. 37-6 at

17). On February 12, 2018, the Board was notified that a full-time limited duty position,

the IT position, was available for Plaintiff without a reduction in pay or benefits. (Doc. 37-

5 at 64; Doc. 37-6 at 19). Regarding the pension application, two doctors who examined

1 The Board of Trustees (“Board”), not the OPD, administers the Police Pension

Plan. See Orlando, Fla., Mun. Code ch. 12, art. 1, § 3. The Board is a separate legal

entity from the OPD with “all powers and responsibilities conferred upon it by law including

the power to bring and defend lawsuits of every kind, nature and description.” See id.

§ 2; (Doc. 37-1 at 39:16–20, 25–40:3, 63:13–14).

Plaintiff determined that she could return to work with either few restrictions or no

restrictions. (Doc. 37-4 at 14–15, Doc. 37-5 at 50). After reviewing Plaintiff’s medical

records, a third doctor cleared Plaintiff for duty without restrictions. (Doc. 37-6 at 12). On

May 30, 2019, the Board, relying on the doctors’ opinions that Plaintiff could return to full-

duty status, denied her application for her pension. (Doc. 37-1 at 47:14–19; Doc. 37-2 at

178:16–17; Doc. 37-4 at 4–8). Thereafter, Defendant ordered Plaintiff to return to full time

work or be terminated. (Doc. 37-1 at 84:23–85:1). Because Plaintiff did not request to

return to full duty, she was terminated on May 30, 2019, pursuant to Article 23 of the CBA.

(Doc. 37-1 at 13:19–21; Doc. 37-2 at 178:16–25).

As a result, Plaintiff alleges that Defendant has discriminated against female and

disabled law enforcement officers and retaliated against her for making complaints and

for submitting workers’ compensation claims. Based thereon, she seeks damages for

alleged violations of the Rehabilitation Act, 29 U.S.C. § 701 et seq. (Count I); Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12111 et seq. (Count II); Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. (Counts III & V); the Florida

Civil Rights Act (“FCRA”), Fla. Stat. § 760.01 et seq. (Counts IV & VI); and section

440.205 of the Florida Statutes (Count VII). (See generally Doc. 21).

II. LEGAL STANDARD

Summary judgment is appropriate when the moving party demonstrates “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 dispute is genuine “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it may “affect the outcome of

the suit under the governing law.” Id. “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.” Allen v. Bd. of Pub. Educ., 495 F.3d 1306,

1313–14 (11th Cir. 2007). Stated differently, the moving party discharges its burden by

showing “that there is an absence of evidence to support the nonmoving party’s case.”

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

However, once the moving party has discharged its burden, “Rule

56(e) . . . requires the nonmoving party to go beyond the pleadings and by her own

affidavits, or by the depositions, answers to interrogatories, and admissions on file,

designate specific facts showing that there is a genuine issue for trial.” Id. at 324

(quotation omitted). The nonmoving party may not rely solely on “conclusory allegations

without specific supporting facts.” Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th

Cir. 1985). Nevertheless, “[i]f there is a conflict between the parties’ allegations or

evidence, the [nonmoving] party’s evidence is presumed to be true and all reasonable

inferences must be drawn in the [nonmoving] party’s favor.” Allen, 495 F.3d at 1314.

As in this case, where the non-moving party fails to respond to the moving party’s

assertion of a properly supported fact, the Court considers the fact undisputed. Fed. R.

Civ. P. 56(c), (e); see also Menster v. Allstate Ins. Co., No. 5:19-cv-77-Oc-30PRL, 2020

WL 5534462, at *1 n.1 (M.D. Fla. Aug. 5, 2020). Further, “[t]here 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.” See Resolution Tr. Corp. v. Dunmar, 43 F.3d 587, 599 (11th Cir.

1995) (citation omitted).

III. DISCUSSION

Defendant argues that summary judgment is appropriate because: (1) Plaintiff

cannot establish she is disabled or was perceived as disabled and is not a “qualified

individual”; (2) Plaintiff did not suffer an adverse employment action on the basis of her

gender or alleged disability; (3) there is no causal connection between Plaintiff’s

engagement in protected activity and her termination; and (4) Plaintiff was terminated

pursuant to a CBA for legitimate non-discriminatory and non-retaliatory reasons.

A. Pension

First Defendant argues that the Board denied Plaintiff’s disability pension

application, not Defendant. Because it is undisputed that the Board is a separate legal

entity and that the OPD had no control over Plaintiff’s pension, see Orlando, Fla., Mun.

Code ch. 12, art. 1, § 2, any allegations that the OPD discriminated or retaliated against

Plaintiff by denying her petition are without merit.

B. Counts I and II: Rehabilitation and ADA

Second, Defendant argues that Plaintiff cannot establish a prima facie case under

the Rehabilitation Act or the ADA because she is unable to demonstrate that she is

disabled. To establish a claim of disability discrimination under Title II of the ADA, a

plaintiff must establish “(1) that [s]he is a qualified individual with a disability; (2) that [s]he

was either excluded from participation in or denied the benefits of a public entity’s

services, programs, or activities, or was otherwise discriminated against by the public

entity; and (3) that the exclusion, denial of benefit, or discrimination was by reason of [her]

disability.” Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1083 (11th Cir. 2007). The legal

standards that apply to determine liability under the Rehabilitation Act are the same as

those under the ADA, including the definition of disability. See Wolfe v. Postmaster Gen.,

488 F. App’x 465, 466–67 (11th Cir. 2012).

“Disability,” is defined as “(A) a physical or mental impairment that substantially

limits one or more major life activities of [the] individual; (B) a record of such an

impairment; or (C) being regarded as having such an impairment.” Id. at 467 (emphasis

omitted) (quoting 42 U.S.C. § 12102(1)); see also 29 U.S.C. § 794(d). To determine if

Plaintiff is disabled, the Court (1) considers “whether [the alleged disability] was a physical

impairment”; (2) “identif[ies] the life activity upon which [the plaintiff] relies” and

“determine[s] whether it constitutes a major life activity”; and (3) “ask[s] whether the

impairment substantially limited the major life activity.” Hudson v. Tyson Farms, Inc., 769

F. App’x 911, 915 (11th Cir. 2019) (quotation omitted). Indeed, “[a] physical impairment,

standing alone, . . . is not necessarily a disability as contemplated by the ADA.” Id. at 916

(quoting Gordon v. E.L. Hamm & Assocs., Inc., 100 F.3d 907, 911 (11th Cir. 1996)). “The

relevant time period for assessing the existence of a disability, so as to trigger the ADA’s

protections, is the time of the alleged discriminatory act.” Equal Emp. Opportunity

Comm’n v. STME, LLC, 938 F.3d 1305, 1314 (11th Cir. 2019).

While Plaintiff’s ability to work may not have, in fact, been substantially limited,

Defendant certainly regarded her as such. “An individual meets the requirement of ‘being

regarded as having such an impairment’ if the individual establishes that he or she has

been subjected to an action prohibited under this chapter because of an actual or

perceived physical or mental impairment whether or not the impairment limits or is

perceived to limit a major life activity.”2 42 U.S.C. § 12102(3)(A) (emphasis added).

“Prohibited actions include but are not limited to refusal to hire, demotion, placement on

involuntary leave, termination, exclusion for failure to meet a qualification standard,

harassment, or denial of any other term, condition, or privilege of employment[.]” 29

C.F.R. § 1630.2(l)(1). “The relevant inquiry in such cases is not the plaintiff’s actual

condition, but how the Defendant perceived [her] condition, including the reactions and

perceptions of the persons interacting with or working with [her].’” Equal Emp.

Opportunity Comm’n v. Am. Tool & Mold, Inc., 21 F. Supp. 3d 1268, 1275 (M.D. Fla. 2014)

(quotation omitted). There is evidence that Defendant perceived Plaintiff as having a

physical impairment because it placed her in light-duty positions until she was cleared to

return to work with no restrictions.

Even so, Plaintiff’s ADA and Rehabilitation claims fail because the undisputed

evidence establishes that Plaintiff was not a qualified individual as she could not perform

an essential function of her positions as a sworn law enforcement officer. A “qualified

individual” is “an individual who, with or without reasonable accommodation, can perform

the essential functions of the employment position that such individual holds or desires.”

Monroe v. Fla. Dep’t of Corr., 793 F. App’x 924, 926–27 (11th Cir. 2019) (quoting 42

U.S.C. § 12111(8)). If a plaintiff is unable to perform an essential function of her job, even

2 The Court notes that the cases cited by Defendant in its Motion were all decided

before the amendments to the ADA, which became effective January 1, 2009, and

abrogated the prior authority holding that to be “regarded as disabled” the plaintiff’s

employer had to perceive the plaintiff “as being unable to work in a broad class of jobs.”

Andrews v. City of Hartford, 700 F. App’x 924, 926 (11th Cir. 2017) (quotation omitted).

Because the majority of the events giving rise to Plaintiff’s claims occurred after the

effective date of the amendment, the Court must apply the most current version of the

ADA. Id.

with a reasonable accommodation, she is not a qualified individual under the ADA. Id. at

927 (citation omitted). An accommodation is not reasonable if it would eliminate an

essential function of the plaintiff’s job. Anderson v. Embarq/Sprint, 379 F. App’x 924, 928

(11th Cir. 2010).

A law enforcement officer is defined as “any person who is elected, appointed, or

employed full time by any municipality . . . who is vested with authority to bear arms and

make arrests; and whose primary responsibility is the prevention and detection of crime

or the enforcement of the penal, criminal, traffic, or highway laws of the state.” Fla. Stat.

§ 943.10(1). Furthermore, all law enforcement officers are required to demonstrate

proficiency in firearms. Fla. Stat. § 943.12(16). If an officer fails to demonstrate

proficiency under the required firearms qualifications standard, he or she “shall not

perform the duties of a sworn officer.” Fla. Admin. Code Rule 11B-27.00212(14)(a).

Here, it is undisputed that Plaintiff was unable to use a firearm, an essential function of a

sworn law enforcement officer, and thus, an accommodation regarding such inability

would not be reasonable. See Frazier v. Simmons, 254 F.3d 1247, 1261 (10th Cir. 2001)

(concluding that the ability to carry a firearm was essential to job of an investigator and

that reassigning functions that may require the use of a firearm was not a reasonable

accommodation); Heard v. Union City, No. 1:15-cv-2228-MHC-JKL, 2017 WL 4334243,

at *10 (N.D. Ga. May 23, 2017) (“[A] law enforcement officer who is unable to perform a

necessary task, even if that task makes up an indeterminately small portion of his work,

may not be a qualified individual under the ADA.”), report and recommendation adopted,

2017 WL 4475926 (N.D. Ga. July 25, 2017). Accordingly, Defendant’s Motion as to

Counts I and II will be granted.

C. Counts III and IV: Gender Discrimination Under Title VII or FCRA

In order to establish a prima face case of discrimination, Plaintiff must

demonstrate: (1) she is a member of a protected class; (2) she was subjected to an

adverse employment action; (3) her employer treated similarly situated employees

outside of her class more favorably; and (4) she was qualified to do the job. Stinson v.

Pub. Serv. Tel. Co., 486 F. App’x 8, 10 (11th Cir. 2012) (citing McCann v. Tillman, 526

F.3d 1370, 1373 (11th Cir. 2008)). In a discrimination claim, “an adverse employment

action is a serious and material change in the terms, conditions, or privileges of

employment.” Cogar v. Citrus Cnty. Sheriff’s Off., No. 20-11003, 2021 WL 531304, at *5

(11th Cir. Feb. 12, 2021) (quoting Kidd v. Mando Am. Corp., 731 F.3d 1196, 1203 (11th

Cir. 2013)).

At the outset, Plaintiff’s termination can be disposed of as an adverse employment

action because Plaintiff had not been terminated when she filed her EEOC complaint. A

plaintiff must exhaust her administrative remedies by filing a timely charge of

discrimination with the EEOC. Stamper v. Duval Cnty. Sch. Bd., 863 F.3d 1336, 1339

(11th Cir. 2017). While judicial claims are allowed if they “amplify, clarify, or more clearly

focus the allegations in the EEOC complaint,” allegations of new acts of discrimination

are inappropriate. Gregory v. Ga. Dep’t of Hum. Res., 355 F.3d 1277, 1280 (11th Cir.

2004) (quotation omitted). In this case, Plaintiff’s termination was based on evidence that

she was not disabled and could return to work as a law enforcement officer without

restrictions but refused, whereas her EEOC complaint was founded on adverse

employment actions taken based on Plaintiff’s gender.

The undisputed evidence establishes the alternative duty assignments, training

cancellation, and performance reviews do not constitute adverse employment actions.

Plaintiff maintained her existing pay and benefits when she was placed on alternative

duty. In fact, OPD created a sworn position for Plaintiff so that she could maintain her

current pay and benefits. Shepard v. United Parcel Serv., Inc., 470 F. App’x 726, 732

(11th Cir. 2012) (finding no adverse employment action where responsibilities of new

position were defined in collective bargaining agreement and did not result in any change

to plaintiff’s compensation, hours of work, or benefits); Brook ex rel. Estate of Waiters v.

City of Palmetto, No. 8:01-cv-2430-T-26TBM, 2005 WL 8160162, at *7 (M.D. Fla. July 15,

2005) (granting summary judgment where employee was laterally transferred with no loss

of salary or benefits). As for the training cancellation and performance reviews, Plaintiff

ultimately attended the training class and received raises without any performance

reviews. Thus, there is no evidence that the delay or lack of performance reviews affected

her salary, title, position, or job duties. Akins v. Fulton Cnty., 420 F.3d 1293, 1300 (11th

Cir. 2005) (explaining that an employer’s conduct constitutes an adverse employment

action if it “negatively affects an employee’s salary, title, position, or job duties”); see also

Martin v. Eli Lilly & Co., 702 F. App’x 952, 956 (11th Cir. 2017) (finding performance

evaluations did not constitute an adverse employment action where evidence was

insufficient to determine how defendant awarded salary increases or that the plaintiff did

not receive new position based on negative performance reviews).

The denial of a take-home work vehicle cannot support her claim because Plaintiff

has failed to demonstrate that the OPD’s assigned-vehicle policy predating Plaintiff’s

injury was applied differently to disabled men. Plaintiff testified that she did not know the

specific circumstances of the two men she identified as keeping an assigned vehicle while

on light duty. Moreover, Plaintiff was provided a vehicle during working hours, and an

opportunity to be reimbursed for the use of her private vehicle.

Finally, Plaintiff was not qualified for the position of sergeant because she was

unable to use a firearm. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1089 (11th Cir.

2004) (explaining that being qualified for the promotion sought is an element of

discriminatory failure to promote), abrogated on other grounds by Lewis v. Union City,

918 F.3d 1213, 1218 (11th Cir. 2019) (en banc); see also Brown v. Snow, 440 F.3d 1259,

1266 (11th Cir. 2006) (finding discrimination claim failed where plaintiff did not provide

any evidence either that he was qualified for promotions or that his lowered evaluation

score was the reason he was denied promotions). Accordingly, Defendant’s Motion will

be granted as to Counts III and IV.

D. Counts V and VI: Retaliation under Title VII and the FCRA

Title VII and the FCRA protect an employee against retaliation by their employer

because the employee has opposed any practice prohibited by Title VII or participated in

any manner in any investigation, proceeding, or hearing under Title VII. James v. City of

Montgomery, 823 F. App’x 728, 734 (11th Cir. 2020). Because there is no direct3

evidence that Plaintiff was subjected to adverse employment actions in retaliation for her

protected activity, the Court utilizes the McDonnell-Douglas4 burden-shifting framework

to address the circumstantial evidence before it. Id. (citation omitted). To that end,

3 Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997) (“Evidence that

only suggests discrimination, or that is subject to more than one interpretation does not

constitute direct evidence.” (internal citations omitted)).

4 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Plaintiff must first present a prima facie case of retaliation and discrimination. McDonnell

Douglas, 411 U.S. at 802. To establish a prima facie case of retaliation Plaintiff must

demonstrate that 1) she engaged in statutorily protected activity; 2) she suffered an

adverse employment action; and 3) there is a causal link between the protected activity

and the adverse action. Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1328 (11th Cir.

1998). If plaintiff presents evidence of an adverse employment action in her retaliation

claims, the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason

for the action. Brooks v. Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160, 1162 (11th

Cir. 2006). An employer is entitled to summary judgment where it proffers a legitimate,

non-retaliatory reason for the adverse employment action and the plaintiff fails to come

forward with evidence inconsistent with the proffered reason. Chapman v. AI Transp.,

229 F.3d 1012, 1024–25 (11th Cir. 2000).

Although Plaintiff cannot establish an adverse employment action to support her

discrimination claims, “discrimination and retaliation claims are not coterminous . . . the

standard for retaliation is more relaxed than its discrimination counterpart, and courts are

no longer to ‘treat[ ] the anti-retaliation provision as forbidding the same conduct

prohibited by the anti-discrimination provision,’ or to ‘limit[ ] actionable retaliation to so-

called ultimate employment decisions.’” Floeter v. City of Orlando, No. 6:05-cv-400-Orl-

22KRS, 2007 WL 9719289, at *8 (M.D. Fla. Feb. 18, 2007) (quoting Burlington N. & Santa

Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006)); see also Smith v. Fla. A & M Univ. Bd. of

Trs., 831 F. App’x 434, 441 (11th Cir. 2020) (“[T]his is a more liberal view of what

constitutes an adverse employment action than in the discrimination context.” (quotation

omitted)). Rather, “[t]o prove an adverse employment action in the context of a retaliation

claim, the ‘plaintiff must show that a reasonable employee would have found the

challenged action materially adverse,’ meaning that ‘it well might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.’” Hamner v.

Tuscaloosa Cnty. Sch. Sys., No. 7:18-cv-01838-LSC, 2021 WL 615203, at *9 (N.D. Ala.

Feb. 17, 2021) (quoting Burlington N., 548 U.S. at 68). Thus, “[a]n adverse employment

action need not be as serious as outright termination.” Id. (citing Wideman v. Wal-Mart

Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998)). Further, “the cumulative weight of

numerous individual incidents can be considered in determining whether the employee

experienced materially adverse action.” Id. (quoting Putman v. Sec’y, Dep’t of Veterans

Affs., 510 F. App’x 827, 831 (11th Cir. 2013)); Shannon v. Bellsouth Telecomms., Inc.,

292 F.3d 712, 716 (11th Cir. 2002).

Even if the Court found, based on the more liberal standard, that placing Plaintiff

at the “fish bowl,” giving her tasks that are mostly clerical, requiring her to use her personal

car while on duty, making her work in a storage closet, denying her request to attend

training, and declining to place her in CID or to promote her to sergeant may collectively

amount to an adverse employment action, Plaintiff has not rebutted Defendant’s evidence

of legitimate, non-retaliatory reasons for its actions. Specifically, Defendant has asserted

that its actions were either compelled by the CBA or the law. Finding that such assertion

meets the exceedingly-light burden of a legitimate, non-discriminatory, non-retaliatory

reason, the burden shifts back to Plaintiff to introduce probative evidence of pretext.

Brooks, 446 F.3d at 1163. Because Plaintiff failed to respond to the Motion, she has not

presented any evidence to rebut Defendant’s evidence that the actions taken were

legitimate and non-retaliatory. Thus, Defendant’s Motion as to Counts V and VI is

granted.

E. Count VII: Workers’ Compensation

Finally, Plaintiff has not presented evidence of a causal connection between her

workers’ compensation claims and her termination. “In order to establish a prima facie

retaliation case under section 440.205, the plaintiff must demonstrate the following

elements: (1) a statutorily protected expression; (2) an adverse employment action; and,

(3) a causal connection between participation in the protected expression and the adverse

action.” Andrews v. Direct Mail Express, Inc., 1 So. 3d 1192, 1193 (Fla. 5th DCA 2009).

“A plaintiff can establish a causal relationship between her statutorily protected activity

and an adverse employment action by showing a ‘close temporal proximity’ between the

two events.” Jackson v. Agency for Pers. with Disabilities Fla., 608 F. App’x 740, 743

(11th Cir. 2015) (quoting Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004)).

However, “[m]ere temporal proximity, without more. . . must be ‘very close.’” Id. (quoting

Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007)). For example,

three to four months between the statutorily protected expression and the adverse

employment action is insufficient to support an inference of causation. Id. “If there is a

substantial delay between the protected expression and the adverse action in the

absence of other evidence tending to show causation, the complaint of retaliation fails as

a matter of law.” Higdon, 393 F.3d at 1220.

Plaintiff made claims for workers’ compensation on October 27, 2015, and

December 7, 2017. Plaintiff was terminated a year-and-a-half after her second workers’

compensation claim. Such a large time gap is insufficient alone to establish a causal

connection between the workers’ compensation claim and the termination. See Jackson,

608 F. App’x at 743; Thomas, 506 F.3d at 1364. Therefore, Defendant’s Motion as to

Count VII will be granted.

IV. CONCLUSION

In accordance with the foregoing, it is ORDERED and ADJUDGED as follows:

1. Defendant’s Motion for Summary Judgment (Doc. 38) is GRANTED.

2. Defendant's Motion for Telephonic Status Conference (Doc. 41) is DENIED

as moot.

3. The trial status conference scheduled for March 9, 2021, is CANCELLED.

4. The Clerk is directed to enter judgment in favor of Defendant and against

Plaintiff, providing that Plaintiff shall take nothing on her claims against

Defendant. Thereafter, the Clerk is directed to close the case.

DONE AND ORDERED in Orlando, Florida on March 8, 2021.

UNITED STATES T JUDG

Copies furnished to:

Counsel of Record