# Bracero v. The City of Orlando

> District Court, M.D. Florida · March 8, 2021

URL: https://www.frixlaw.com/law-library/cases/10107092

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 8, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10107092

## How later opinions describe it (automated extraction)

- explaining that an employer’s conduct constitutes an adverse employment action if it “negatively affects an employee’s salary, title, position, or job duties”
- 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
- 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
- explaining that being qualified for the promotion sought is an element of discriminatory failure to promote

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10107092. Public record. Not legal advice.