Weiher v. Lincare Procurement Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DAWN WEIHER,

Plaintiff,

v. Case No. 8:20-cv-2569-VMC-AEP

LINCARE PROCUREMENT, INC.,

Defendant.

______________________________/

ORDER

This matter comes before the Court upon consideration of

Defendant Lincare Procurement, Inc.’s Motion for Summary

Judgment (Doc. # 26), filed on August 16, 2021. Plaintiff

Dawn Weiher responded on September 27, 2021 (Doc. # 30), and

Defendant replied on October 11, 2021. (Doc. # 31). For the

reasons that follow, the Motion is granted.

I. Background

In August 2018, Weiher began working for Lincare1 in the

Procurement Department as a Category Manager. (Doc. # 27-1 at

52:12-17; Doc. # 30-7 at 5:2-5). Weiher was hired by Doran

Fanning, who was her direct supervisor throughout her

1 Lincare Inc. is a provider of oxygen and other respiratory

therapy services to patients at home. (Doc. # 27-29 at ¶ 3).

Defendant Lincare Procurement, Inc. is responsible for

procurement and cost savings for Lincare Inc. (Id.).

employment at Lincare. (Doc. # 27-1 at 53, 55, 74; Doc. # 27-

30 at ¶ 3). Weiher agreed to a 9:00 a.m. start time, although

she had reservations about being able to meet that

expectation. (Doc. # 27-1 at 65-67).

At the beginning of her employment, Weiher was

responsible for helping to support the IT and “indirects”

categories at Lincare. (Doc. # 27-1 at 68:13-16, 73:5-14).

Weiher described the “indirects” portion of her job as a sort

of catch-all: “everything from toilet paper to . . . maid

service and uniforms for over 800 locations across the U.S.”

(Id. at 68:14-17). Weiher’s duties included meeting and

communicating with vendors, negotiating prices, and working

with clients in an attempt to save money for Lincare. (Id. at

69:4-14). Responsiveness was important to Weiher’s position

because she was required to interact with vendors, IT leaders,

and others to address contract renewals, bids, and other

procurement-related issues. (Id. at 69:17-19; 164:23-165:7;

Doc. # 27-30 at ¶ 3). Weiher received a favorable performance

review for 2018. (Doc. # 30-7 at 12:4-13:3).

According to Lincare, Weiher’s performance began to

decline in March 2019. (Doc. # 27-30 at ¶ 4). Specifically,

according to Fanning, she struggled with responsiveness,

completing her assigned job duties, and delivering a

consistent work product. (Id.). Fanning stated that he

addressed these issues informally with Weiher during their

one-on-one meetings each month. (Id.). Weiher counters that

there are no documents showing that her performance began to

decline in March 2019. (Doc. # 30-7 at 14:1-25).

At some point in 2019,2 Fanning assigned Weiher a project

called the “IT Master,” which was, as Weiher described it: “A

very large list of all the contracts for services, hardware,

[and] warranties.” (Doc. # 27-1 at 167:10-11). Fanning

explained that the IT Master was an important project because

it enabled their department to keep track of all contract

renewals needed for the IT department and it helped ensure

that the IT system did not experience lapses in service. (Doc.

# 27-30 at ¶¶ 4-5). Fanning testified that Weiher struggled

with keeping the IT Master up to date. (Id. at ¶ 5). Weiher

admitted that creating and maintaining the IT Master was

“quite intensive” and “an undertaking that was impossible

with my workload to get completed in a timely fashion.” (Doc.

# 27-1 at 167:23, 168:12-13).

2 According to Lincare, Weiher got the IT Master in March 2019

(Doc. # 27-30 at ¶ 5), but Weiher testified that it wasn’t

her responsibility until August 2019. (Doc. # 27-1 at 186:8-

11).

From January to July 2019, Weiher was late to work a

total of 117 times, and on most of those occasions she was

more than 30 minutes late. (Doc. # 27-29 at ¶ 4). Weiher does

not dispute that she was often late to work, and explained

that “I am very slow to get started in the morning because

I’m in pain. . . . It takes me a while to get going. And since

I’m diabetic, I have to eat breakfast.” (Doc. # 27-1 at 139-

40). She testified that her arthritis and peripheral

hyperhidrosis made it difficult for her to dry off after a

shower and dry her hair. (Id. at 140:2-10).

As Weiher explained it, peripheral hyperhidrosis is a

condition that causes her to sweat excessively. (Id. at 92:24-

94:12). She takes medication to help control the symptoms of

hyperhidrosis, and she agreed that the medication is

effective. (Id. at 96:7-97:1).

In July 2019, Fanning offered Weiher a 9:30 a.m. start

time during an informal one-on-one meeting. (Doc. # 27-1 at

138:10-21; Doc. # 27-30 at ¶ 6). The parties dispute whether

Fanning told Weiher at this time that the accommodation was

temporary or that she needed to immediately contact Human

Resources (HR) to get the accommodation request formally

approved. (Doc. # 27-1 at 137:24-139:7; Doc. # 27-30 at ¶ 6).

Although Fanning knew that Weiher wanted the later start time

for medical reasons, he did not know the specific medical

reasons. (Doc. # 27-1 at 141:8-13, 142:25-143:9; Doc. # 30-7

at 29).

In August 2019, Fanning and Weiher had a meeting with

Lincare IT managers to discuss the IT Master. (Doc. # 27-30

at ¶ 8). Fanning stated that, during that meeting, Weiher

“became upset . . . and started shouting loudly at the IT

executives and aggressively pushed a stack of papers across

the table at them.” (Id.). Fanning ended the meeting early

and immediately counseled Weiher about her behavior. (Id.).

According to Fanning, Weiher was unreceptive to his feedback

and argued with him. (Id.). Another Lincare employee

testified that the August 2019 meeting “was very loud and

they were yelling at one another.” (Doc. # 27-27 at 8-9).

Afterwards, Weiher was upset and crying. (Id.).

On August 23, 2019, Fanning contacted HR about Weiher,

writing: “Have some negative feedback likely from [IT

managers] following an IT catch up we had last week. Dawn and

I had a very candid discussion after that meeting where I

informed her that she cannot behave that way (let alone in

front of senior leaders) and be aggressive and literally

thrust paperwork in the face of [an IT manager]/anyone. I

don’t plan on giving her a warning. . . . [During their next

one-on-one meeting] I will let her know that if she cannot

get here regularly by 09:30 she will be written up.” (Doc. #

27-30, Exh. 1 at 2). On August 30, 2019, the HR manager

assigned the complaint closed the ticket, writing:

Spoke at length with Doran Fanning regarding Dawn

Weiher. Since meeting with Dawn to discuss recent

concerns, he has seen positive improvement. He has

been coaching her and discussing her arrival time,

and both have shown improvement. Her performance

(quality and quantity) are both very solid. She has

a complex role and there are a number of new players

he believes contributes to some

confusion/frustrations. He wants to be fair with

Dawn and will continue to coach her. I did confirm

that she has not reached out to Benefits to discuss

any request for accommodation, though being

notified of that resource.

(Doc. # 27-30, Exh. 1 at 1).

On August 26, 2019, as part of an email exchange between

Fanning and Lincare executive Greg McCarthy, Fanning reported

that Weiher “has been frustrated and a little overwhelmed,”

but that he was planning on taking away her responsibility

over the indirects category and having her focus on IT. (Doc.

# 30-10 at 3). Fanning also wrote that Weiher was struggling

with “some attendance issues that [had] come to light,” as

well as “her recent behavior in a meeting with IT leadership

. . . that she was coached by me on immediately afterwards.”

(Id.). When McCarthy asked what was overwhelming Weiher,

Fanning replied: “Workload and she hates to ask for help. So

it’s a false negative. Told her that asking for help is not

a weakness. She has a great eye for detail and good at digging

into systems and finding data. She needs to work on her

defensive attitude . . . it comes over aggressive sometimes

and as if ‘she isn’t good enough.’ [Takes] it a little too

personal.” (Id. at 2). McCarthy replied: “Looks like she

doesn’t have a track record of showing up to work on time

(70%) of the time? Why are we allowing her to start at 9:45

– 10 am every day?” (Id. at 1). Fanning replied, “Agreed with

[Gyanesh Ratna, Fanning’s supervisor] to allow her to start

09:30 and work later. She has had some health issues. Am

speaking to her about the time issue tomorrow as it seems it

got worse after we allowed later start time. If it doesn’t

revert back to on time it will be a written warning.” McCarthy

then asked, “Is it the health issue that keeps her from

starting at 8 am?” Fanning replied, “Believe it is a

contributory factor but will clarify tomorrow.” (Id.).

McCarthy then reached out to Ratna, stating that he was

concerned about employee punctuality. (Doc. # 30-20 at 16:18-

17:15). On August 27, 2019, Ratna sent an email to the entire

Procurement Department stating that 9:00 a.m. to 4:30 p.m.

are the “designated core working hours for headquarters and

everyone needs to follow without exception.” (Doc. # 27-25;

Doc. # 27-1 at 144). Fanning forwarded that email to Weiher

later the same day, writing “if there is anything that impacts

your ability to be here by 9 am, please speak to Stephanie

Varao/HR Support.” (Doc. # 27-30, Exh. 3). Three minutes after

forwarding that email to Weiher, Fanning emailed Paula Adams,

Lincare’s head of employee relations and HR services, and

wrote: “Greg spoke to [Ratna] yesterday after my email trail.

[Ratna] came to see me earlier today and then sent the email

below.” (Id.).

Weiher was tardy to work every day during the week of

September 9-13, 2019. (Doc. # 27-30 at ¶ 11). On September

19, 2019, Fanning gave Weiher a verbal warning for tardiness.

(Id.; Doc. # 27-30, Exh. 4; Doc. # 30-17). According to a

contemporaneous email from Fanning to HR employees, Weiher

“was not happy and pointed to the fact that sometimes she has

to park far away to get into the office as well as she has

arthritis.” (Doc. # 30-17 at 2). According to Fanning, he

believed the verbal exception he had granted in July 2019 had

been “retracted” due to Ratna’s August 27, 2019, email, and

he advised Weiher to contact HR if she needed a later start

time due to health reasons.3 (Doc. # 27-30 at ¶ 11).

3 According to Weiher, it was after Ratna “revoked” her prior

verbal accommodation in the August 27 email that Fanning first

On September 19, 2019, Weiher emailed Stephanie Varao,

the head of benefits for Lincare, to initiate a formal request

for accommodation. (Doc. # 27-5). On September 24, 2019,

Weiher filled out Lincare’s formal accommodation request,

listing her disabilities as “primary focal hyperhidrosis,

diabetes with neuropathy, rheumatoid arthritis, and high

blood pressure.” (Doc. # 27-6). The form submitted by Weiher’s

medical care provider stated that Weiher “has issues in the

morning due to pain and issues with uncontrollable sweating

which may affect her ability to report to work exactly at 9

am” and that “stress irritates her medical conditions.” (Doc.

# 30-5 at 34). The accommodation she requested was being able

to start work between 9:00 and 9:30 a.m. (Id.). On September

27, 2019, Lincare granted Weiher’s reasonable-accommodation

request under the ADA, granting her a modified start time of

between 9:00 and 9:30 a.m., so long as she continued to work

a full workday. (Doc. # 27-7). This accommodation remained in

place for the remainder of Weiher’s employment. (Doc. # 27-1

at 158:10-20).

On that same day, September 27, 2019, Fanning sought to

give Weiher a written warning for performance issues,

told her she needed to seek a formal accommodation from HR.

(Doc. # 30-11; Doc. # 27-1 at 141-42, 144).

including insubordination, a lack of urgency in her

responsiveness to emails, IT Master errors, and tardiness.

(Doc. # 27-30 at 26-27 (Exh. 5)). According to Weiher, Fanning

had never previously issued her a verbal warning for

performance issues. (Doc. # 30-7 at 40:10-41:18).

According to Lincare, Fanning sent this email at 2:06

p.m. on September 27, before he had any knowledge that Weiher

had requested or received her formal accommodation from HR.

(Doc. # 27-30 at ¶ 12). Later that day, at 5:19 p.m., HR

notified Fanning that Lincare had approved the formal

accommodation. (Id.). Two days later, on September 29,

Fanning emailed HR, stating that: “In light of receiving from

Stephanie (work accommodation) am prepared to rescind this

request for a period of 2 weeks. This is conditional upon

there being a perfect attendance record per the Accommodation

given herein and/or improvements to the points detailed

herein.” (Id. at 26).

On October 1, 2019, Shiraz Mohammed, Lincare’s head of

HR, forwarded to McCarthy the email chain regarding Fanning’s

request for a written warning and subsequent retraction.

(Doc. # 30-22 at 3:10-11; Doc. # 30-23). Mohammed wrote that

Lincare did grant her request “based on her doctor’s note

under the ADA rules.” (Doc. # 30-23). McCarthy responded, “Do

we know the nature of the request from her doctor?” (Id.).

By October 22, 2019, Fanning had knowledge that Weiher

had monthly doctor’s appointments. (Doc. # 30-7 at 42:24-

43:16; Doc. # 30-13).

Weiher admits that throughout September and October

2019, she continued to struggle to complete her job duties

and be responsive. (Doc. # 26 at ¶ 15; Doc. # 30 at ¶ 15).

For example, there is evidence that Weiher’s untimely

responses served to delay a project for multiple months, and

eventually Fanning took control of the project in September

2019 in order to complete it. (Doc. # 27-30 at ¶ 13(b); Doc.

# 27-30, Exh. 8). As part of that email chain, Weiher

acknowledged that “I have been struggling to get my tasks

completed.” (Doc. # 27-30 at 36 (Exh. 8)). On October 23,

2019, Fanning took away Weiher’s responsibilities for the

indirects category, in order to have her focus on IT work and

to lighten her workload. (Doc. # 27-30 at ¶ 14; Doc. # 27-

30, Exh. 10).

On November 5, 2019, Fanning sent an email to Ratna and

HR stating that Weiher’s performance had not improved even

after he removed part of her workload and that she continued

to be unresponsive, insubordinate, and failed to complete her

job duties. (Doc. # 26 at ¶ 17; Doc. # 30 at ¶ 17; Doc. # 27-

30, Exh. 5). As of November 5, it was Fanning’s intention to

fire Weiher later that week. (Doc. # 27-30, Exh. 5).

Fanning then discussed his intention with Ratna and

Mohammed. After getting input from HR that the better practice

was to first issue Weiher a written warning, Fanning decided

to give Weiher a final written warning. (Doc. # 27-30 at ¶

15; Doc. # 30-29 at ¶ 7; Doc. # 30-22 at 11-12).

Meanwhile, on November 13, 2019, Fanning sent Weiher an

email telling Weiher that, in earlier emails with a client,

she had, in essence, told the client that Lincare had delayed.

(Doc. # 27-10 at 2). After Weiher responded, Fanning wrote

back:

My request of you is to be mindful of how those

comments could be misconstrued. Jeff does not need

to receive an email that clearly says Procurement

internal systems caused a delay.

Did Jeff ask why there was a delay? Did Jeff request

a full and detailed explanation? Could you have

handled this differently? I need you to focus on

the multitude of projects clearly detailed in the

IT master (that I created) and to respond more

urgently when I ask you simple questions to

quantity and show me savings[.] This is a coaching

moment for you.

(Id. at 1). Weiher then forwarded that email to Ratna, saying

that Fanning’s attitude toward her had turned “very hostile

and it is making me uncomfortable.” (Id.). And on November

18, 2019, Weiher emailed Fanning, cc’ing Ratna, where she

wrote:

I do not understand why your demeanor and tone has

turned hostile towards me but it is an

uncomfortable feeling and to date you have not

given me any reason to believe that my work or

productivity has declined. You are duplicating my

work, seeking out meetings with my vendors without

any notification or invitation to me and your

emails have made me feel like I am not even allowed

to work directly with my IT counterparts. I don’t

know what it is that you are upset with me about

but I would like to know so we can work through it.

I am copying Gyanesh on this email because I have

spoken to him as well because I do not know what

has changed so drastically.

(Doc. # 27-30 at 30 (Exh. 9)). In his declaration, Fanning

stated that he found this response “insubordinate and

disrespectful” for “questioning his leadership and

directives.” (Doc. # 27-30 at ¶ 13).

On November 20, 2019, Fanning issued a final written

warning (the “FWW”) to Weiher. (Doc. # 27-8). The FWW lodged

the following infractions against Weiher:



“You do not demonstrate a sense of urgency responding to

requests from the field.”



“Ongoing lack of respect / insubordinate actions /

behavior toward me as your manager.”



“You respond defensively when I attempt to provide you

with constructive feedback[.]”



“You have not assumed full responsibility for the IT

Master.”



A lack of progress on changing a shredding vendor, which

project was completed only after Fanning undertook it.



An Indirects project was withdrawn from Weiher after

“little to no progress had been made.”

(Id.). The FWW warned that Weiher must demonstrate “immediate

and sustained improvement” in the areas noted therein or else

she may face further corrective action, including

termination. (Id. at 1-2).

The next day, Weiher filed a two-page written dispute of

the FWW with HR. (Doc. # 27-9). The last sentence of the

dispute states: “I hate to point out that the timeline and

examples that Doran has referenced are after my accommodation

was approved by HR.” (Id.). Mohammed, as the head of HR,

testified that he conducted an investigation after the

dispute and spoke to Fanning, Ratna, and Adams. (Doc. # 30-

22 at 4-6). He ultimately concluded that the FWW should stand.

(Doc. # 27-29 at ¶ 8). However, Fanning testified that he

never spoke to Mohammed or anyone at HR about the written

dispute and that he was never provided a copy of the dispute

until the day before his deposition. (Doc. # 30-7 at 50-52).

Ratna also testified that he was never provided a copy of the

dispute. (Doc. # 30-20 at 27:6-12). Weiher takes exception to

the fact that she was never informed of the result of her

written dispute. (Doc. # 27-1 at 122).

According to Weiher, after the FWW was issued, Fanning

began withdrawing IT savings projects from her, giving them

to newly hired employees instead. (Doc. # 27-1 at 130, 114-

15).

According to Fanning, Weiher’s performance “improved

slightly for a couple of months after the [FWW]. However, in

March/April 20204, the same performance issues started

reoccurring, including a lack of responsiveness and failure

to complete her job duties,” such as the IT Master, and the

“IT executives were frustrated with her performance issues.”

(Doc. # 27-30 at ¶ 17). For example, in March 2020, Weiher

failed to respond to three email requests regarding the pick-

up of an old copier. (Doc. # 27-23). Weiher testified that

she was receiving similar requests from 800 centers; she was

“overwhelmed” and “bombarded” and did not respond because “it

was not on the priority list at that time.” (Doc. # 27-1 at

4 In March 2020, Lincare switched eligible employees,

including Weiher, to fully remote work due to the COVID-19

pandemic. (Doc. # 26 at ¶ 22; Doc. # 30 at ¶ 22).

246-47). She testified that, “I made it very clear to everyone

that things were slipping through the cracks because I had

too much. One person cannot handle 800 locations across the

U.S., as well as a very impatient IT department in

Clearwater.” (Id. at 247:14-19).

According to Weiher, Fanning did not communicate any

dissatisfaction with her performance until late April 2020.

(Doc. # 30-7 at 49:14-19).5

On April 24, 2020, Fanning sought permission to

terminate Weiher’s employment and hire another person. (Doc.

# 30-15). In that email to HR, Fanning stated that Weiher

exhibited a lack of urgency in responding to colleague

requests, was “unable” to perform her job duties, failed to

support the procurement team, and incorrectly reported

savings. (Doc. # 27-30 at ¶ 18).

On May 21, 2020, Fanning followed up on his request to

terminate Weiher’s employment. (Doc. # 26 at ¶ 25; Doc. # 30

at ¶ 25). Both of these communications stated that additional

performance errors had occurred. (Doc. # 27-30, Exhs. 12,

13). HR employee Adams testified that she inadvertently

5 Fanning testified that he did not give her any written

direct communications about her performance, although there

was “e-mail traffic where I’m asking about specific

projects.” (Doc. # 30-7 at 49:14-19).

failed to timely respond to Fanning’s April and May

communications. (Doc. # 27-29 at ¶ 10).

Weiher points out that on May 19, 2020, she asked Fanning

for leave to attend a doctor’s appointment on May 22. (Doc.

# 30-14). Just two days after approving the leave, Fanning

emailed Ratna, stating that he wanted May 29, 2020 to be

Weiher’s last day of employment. (Doc. # 30-15).

On July 16, 2020, Fanning again followed up about his

request to terminate Weiher and Adams agreed to draft the

termination letter. (Doc. # 27-29 at ¶ 10; Doc. # 30-15). In

his July 16 email, Fanning wrote:

There has been another case where Dawn has failed

to implement a solution that was listed since

September 2019 in our list of services to deliver

that (this week) I have had to personally deal with.

After this came to light she stated she wasn’t well

and needed rest of week off as she has to go see a

Doctor.

Resultantly I will terminate her employment Tuesday

next week over the phone. She remains unable to

deliver against pre-planned projects[.]

(Doc. # 30-15 at 2).

On July 20, 2020, Weiher asked Fanning for time off to

see a gastrointestinal surgeon.6 (Doc. # 27-1 at 86, 89-90).

6 Weiher was diagnosed with Irritable Bowel Syndrome after

leaving Lincare, although she testified that she experienced

“bathroom issues” while working there. (Doc. # 27-1 at 87,

89, 260).

On July 21, 2020, Weiher’s employment with Lincare was

terminated. (Doc. # 26 at ¶ 26; Doc. # 30 at ¶ 26). Fanning

terminated her employment over the phone. (Doc. # 27-1 at 86,

89).

On July 25, 2020 – four days after the termination –

Weiher sent a text message to her “very good friend” and

former co-worker, Nikki Tipton, stating:

Doran screwed me by stating I was terminated due to

poor job performance. . . . All of this is because

Doran has been butt hurt since that meeting in

August last year when he threw me under the bus in

the meeting with Bruce V, Rob, and Bruce R . . . I

don’t think Doran or Gyanesh realize how much

backup I have about how I was a rock star right up

until that meeting in August [that] ended with him

and I arguing in my office.

(Doc. # 27-27 at 25:23-26:12; Doc. # 27-28).

Weiher initiated this action against Lincare on November

3, 2020, asserting claims for disability discrimination under

the Americans with Disabilities Act (ADA) (Count I) and

retaliation in violation of the ADA (Count II). (Doc. # 1).

Lincare filed its answer on November 25, 2020. (Doc. # 9).

The case then proceeded through discovery.

Lincare now moves for summary judgment on all claims.

(Doc. # 26). The Motion has been fully briefed (Doc. ## 30,

31) and 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

Lincare seeks summary judgment on both of Weiher’s ADA

claims. (Doc. # 26). The Court will address each in turn.

A. Disability Discrimination Claim

Weiher brings Count I for disability discrimination

under the ADA.

The ADA prohibits discrimination “against a qualified

individual on the basis of disability in regard to . . . the

hiring, advancement, or discharge of employees . . . and other

terms, conditions, and privileges of employment.” 42 U.S.C.

§ 12112(a). Where, as here, a plaintiff attempts to prove an

employer’s intentional discrimination through circumstantial

evidence, the familiar burden-shifting framework laid out in

McDonnell-Douglas7 applies. Holly v. Clairson Indus., LLC,

492 F.3d 1247, 1255 (11th Cir. 2007) (explaining that the

“burden-shifting analysis of Title VII employment

discrimination claims is applicable to ADA claims”).

1. McDonnell-Douglas

In order to establish a prima facie case of

discrimination under the ADA, a plaintiff must show that she

(1) is disabled, (2) is a qualified individual, and (3) was

discriminated against because of her disability. Lewis v.

City of Union City, 934 F.3d 1169, 1179 (11th Cir. 2019).

Once the plaintiff makes this showing, the defendant has the

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

burden of articulating a legitimate, non-discriminatory

reason for its employment action. Pennington v. City of

Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). If the

defendant meets this burden, then the inference of

discrimination is rebutted, and the inquiry proceeds to a new

level of specificity in which the plaintiff must show that

the proffered reason is merely a pretext for unlawful

discrimination. Brooks v. County Comm’n of Jefferson Cnty.,

446 F.3d 1160, 1162 (11th Cir. 2006).

First, Lincare argues that Weiher cannot establish a

prima facie case of disability discrimination because she

cannot demonstrate that she is disabled or that she was

discriminated against because of her purported disability.

(Doc. # 26 at 13-16). The Court need not address this issue.

For the purposes of this Order, the Court will assume, without

deciding, that Weiher has shown a prima facie case because it

concludes that she failed to create a genuine issue of

material fact that Lincare’s reasons for firing her were

pretextual.

With this assumption in place, the burden shifts to

Lincare to articulate a legitimate, non-discriminatory reason

for Weiher’s firing. This Lincare has easily done. They have

presented evidence that Weiher was struggling to complete her

job duties, was unresponsive to emails, and was insubordinate

or aggressive to colleagues. See Damon v. Fleming

Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir.

1999) (citing poor performance and yelling vulgarities as

legitimate, non-discriminatory reasons for termination). The

burden now shifts back to Weiher to establish that Lincare’s

proffered reasons are pretext for disability discrimination.

“[T]o avoid summary judgment [the plaintiff] must

introduce significantly probative evidence showing that the

asserted reason is merely a pretext for

discrimination.” Clark v. Coats & Clark, Inc., 990 F.2d 1217,

1228 (11th Cir. 1993) (citation omitted). “A legitimate

nondiscriminatory reason proffered by the employer is not a

pretext for prohibited conduct unless it is shown that the

reason was false and that the real reason was impermissible

retaliation or discrimination.” Worley v. City of Lilburn,

408 F. App’x 248, 251 (11th Cir. 2011)(citing St. Mary’s Honor

Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). “If the proffered

reason is one that might motivate a reasonable employer, a

plaintiff cannot merely recast the reason, but must meet it

‘head on and rebut it.’” Id. (quoting Chapman v. AI Transp.,

229 F.3d 1012, 1030 (11th Cir. 2000)). Thus, to show pretext,

an employee must demonstrate “such weaknesses,

implausibilities, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action that

a reasonable factfinder could find them unworthy of

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

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

2004)). The Court cannot second guess the defendant’s

business judgment or inquire as to whether its decision was

“prudent or fair.” Damon, 196 F.3d at 1361.

Here, the Court agrees with Lincare that Weiher bases

her claim on temporal proximity, her disagreement with the

stated reason for termination, and speculation. But this is

insufficient to create a jury question on the issue of pretext

because Weiher has not rebutted Lincare’s proffered reason

head on.

As an initial matter, Weiher cannot survive summary

judgment simply by quibbling with whether her performance was

poor enough to merit termination or by relying on her own

speculation as to the true cause of her termination or the

breakdown of her working relationship with Fanning. See

Chapman, 229 F.3d at 1030 (explaining that a plaintiff cannot

show pretext “simply by quarreling with the wisdom of” the

employer’s proffered non-discriminatory reason); Aldabblan v.

Festive Pizza, Ltd., 380 F. Supp. 2d 1345, 1353 (S.D. Fla.

2005) (“Plaintiff’s mere belief, speculation, or conclusory

allegations that Defendant discriminated against [her],

therefore, are insufficient to withstand summary judgment.”).

There are, however, several points where there is close

temporal proximity between one of Weiher’s actions and one of

Lincare’s actions. First, the Court notes that Lincare

granted Weiher’s formal accommodation request on the same day

that Fanning requested a written warning against Weiher.

Second, there was a span of 39 days between the grant of her

formal accommodation request and Fanning’s first attempt to

terminate her employment. Third, there was a gap of

approximately two weeks between when Fanning knew that Weiher

had monthly doctors’ appointments and his first attempt to

terminate her employment in November 2019. Finally, the Court

notes that there are two instances in the record – in May

2020 and July 2020 – in which Weiher requested time off for

medical care and Fanning sent communications seeking to

terminate her.

Close temporal proximity is, standing alone, generally

insufficient to establish pretext. Hurlbert v. St. Mary’s

Health Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006)

(“The close temporal proximity between Hurlbert’s request for

leave and his termination — no more than two weeks, under the

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

probably insufficient to establish pretext by itself.”); see

also Johnson v. Miami-Dade Cty., 948 F.3d 1318, 1328 (11th

Cir. 2020) (explaining that temporal proximity of less than

two months was insufficient by itself to establish pretext).

The relevant question is whether Weiher has presented “other

evidence supporting [her] claim that [Lincare’s] stated

reason for terminating [her] was pretextual.” Daugherty v.

Mikart, Inc., 205 F. App’x 826, 828 (11th Cir. 2006).

For example, this Court has considered a case where a

plaintiff pointed to a two-week separation between the

plaintiff’s request for time off due to knee surgery and his

termination as evidence of pretext. Marx v. Baker Cnty. Med.

Servs., Inc., No. 3:16-cv-462-TJC-MCR, 2018 WL 4215950, at *8

(M.D. Fla. Sept. 5, 2018). The evidence in Marx showed that,

in between the time the employee requested leave and his

termination date, his supervisor voiced his disapproval

regarding the plaintiff’s work performance, noted that the

plaintiff was “disruptive and negative” at training, had

failed to direct his staff on how to proceed with a task,

failed to take responsibility for a certain task, and showed

no signs of improvement. Id. at *9.

In granting summary judgment to the employer and finding

that the plaintiff had not established a genuine issue of

material fact as to pretext, that court wrote:

Other than the temporal proximity between their

meeting in which he requested leave and his

termination — insufficient on its own to show

pretext — Marx has simply not presented a genuine

issue of material fact that Markos fired him for

any reason other than Marx’s subpar performance in

attempting to lead the respiratory department

through the Meditech conversion. In the Eleventh

Circuit, the court does not “sit as a ‘super-

personnel department,’ and it is not [the court’s]

role to second-guess the wisdom of an employer’s

business decisions — indeed the wisdom of them is

irrelevant — as long as those decisions were not

made with a discriminatory motive.”

Id. at *10 (citations omitted).8

Here, similarly, the temporal proximity between Weiher’s

request for an accommodation, the granting of that request,

and/or her requests for medical leave and Lincare’s

disciplinary actions and efforts to terminate her is not

sufficient, standing alone, to establish pretext on her

retaliation claim.

It is insufficient because Weiher has not rebutted

Lincare’s reason head on – she has not shown that Lincare’s

proffered reason for her termination was false or that the

8 While Marx involved a retaliation claim under the FMLA, not

the ADA, the Court nevertheless finds its reasoning to be

persuasive.

true reason was discriminatory, and she has not demonstrated

such “weaknesses, implausibilities, incoherencies, or

contradictions in [Lincare’s] proffered legitimate reasons

for its action that a reasonable factfinder could find them

unworthy of credence.” See McCann, 526 F.3d at 1375; Pitts v.

Hous. Auth. for City of Huntsville, 262 F. App’x 953, 956

(11th Cir. 2008) (upholding summary judgment for employer

where “none of the various reasons identified by Pitts as

establishing pretext dispute, ‘head on,’ the [defendant’s]

reason for terminating him”); Crawford v. City of Fairburn,

Ga., 482 F.3d 1305, 1309 (11th Cir. 2007) (“[Plaintiff]

erroneously argues that evidence of a discriminatory animus

allows [her] to establish pretext without rebutting each of

the proffered reasons of the employer.”).

Lincare has submitted voluminous evidence that for many

months before her July 2020 termination, Weiher struggled

with poor work performance. These allegations about Weiher’s

performance issues are essentially unrebutted and, indeed,

Weiher freely admitted in her deposition that she was

overwhelmed with work and things would slip through the

cracks.

In light of these performance issues, the temporal-

proximity evidence and speculation offered by Weiher in

support of her disability discrimination claim are

insufficient to raise a genuine issue of material fact as to

whether Lincare’s stated reason for her termination was

pretextual. See Jenks v. Naples Cmty. Hosp., Inc., 829 F.

Supp. 2d 1235, 1251-52 (M.D. Fla. 2011) (granting summary

judgment for employer on plaintiff’s ADA claim where employee

had documented poor work performance for several months prior

to her termination, was given warnings that her performance

needed to improve, and plaintiff failed to show that her

employer’s legitimate reasons were a pretext for disability

discrimination).

In her response, Weiher points to Lincare’s alleged

failure to follow its own internal procedures with respect to

her dispute of the FWW as evidence of pretext, writing that

Mohammed, as the head of HR, “ignored” her written dispute.

(Doc. # 30 at 20). It is true that the evidence is disputed

as to what steps Mohammed took as part of his investigation

of Weiher’s FWW dispute. However, even if Mohammed failed to

precisely follow company procedure during his investigation,

“[a] deviation from company policy does not demonstrate

discriminatory animus.” Mitchell v. USBI Co., 186 F.3d 1352,

1356 (11th Cir. 1999). Instead, a plaintiff must show that

there was a nexus between the deviation and the employee’s

protected status or conduct. Berg v. Fla. Dep’t of Lab. &

Empl. Sec., Div. of Vocational Rehab., 163 F.3d 1251, 1255

(11th Cir. 1998). Weiher has not met her burden of showing

such a nexus and, therefore, the alleged deviation from policy

does not indicate pretext. See Hutchinson v. Sec’y, Dep’t of

Veteran Affairs Agency, No. 6:16-cv-360-JA-KRS, 2018 WL

369155, at *9 (M.D. Fla. Jan. 10, 2018) (holding that agency’s

procedural violations “do not tend to show that the VA was

motivated by discriminatory animus because Hutchinson has

failed to present evidence that discrimination played a role

in any procedural irregularities” and therefore finding no

triable issue as to pretext).

2. Convincing mosaic

In her response, Weiher argues that she has presented a

convincing mosaic of evidence that creates a triable issue as

to whether Lincare had an unlawful reason for her termination.

(Doc. # 30 at 16-17). As the Eleventh Circuit has explained,

“establishing the elements of the McDonnell Douglas framework

is not, and never was intended to be, the sine qua non for a

plaintiff to survive a summary judgment motion in an

employment discrimination case.” Smith v. Lockheed-Martin

Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). Rather, “a

plaintiff will always survive summary judgment if he presents

circumstantial evidence that creates a triable issue

concerning the employer’s discriminatory intent.” Id.

A plaintiff can still proceed past summary judgment if

she “presents a convincing mosaic of circumstantial evidence

that would allow a jury to infer intentional discrimination

by the decision maker.” Id. “A plaintiff may establish a

convincing mosaic by pointing to evidence that demonstrates

(1) suspicious timing, ambiguous statements, or other

information from which discriminatory intent may be inferred,

(2) systematically better treatment of similarly situated

employees, and (3) pretext.” Holley v. Ga. Dep’t of Corr.,

845 F. App’x 886, 890–91 (11th Cir. 2021).

Weiher has not cleared that hurdle here, for the reasons

stated above. While the Court does note some instances of

“suspicious timing,” as noted above, and certain “ambiguous

statements” from Lincare executive McCarthy inquiring about

Weiher’s health vis-à-vis her tardiness and eventual

accommodation request, these remarks were not related to any

employment decision, nor is there any evidence that McCarthy

ever sought or solicited Weiher’s termination. See Rojas v.

Florida, 285 F.3d 1339, 1343 (11th Cir. 2002) (stating that

although stray remarks that are not directly related to an

employment decision may contribute to a circumstantial

showing of discriminatory intent, they must be read in

conjunction with the entire record and considered with other

evidence).

The undisputed evidence shows that Fanning at first

granted Weiher an informal accommodation to start later in

the morning, and then encouraged her to get a formal

accommodation from HR. He approved nearly every time-off

request she made, for medical reasons and otherwise, and

worked with her for many months after the issuance of the FWW

to see if her performance would improve, which ultimately it

did not. Weiher has also failed to show a convincing mosaic

of circumstantial evidence sufficient to survive summary

judgment. See Davidson v. Chspsc LLC, No. 20-14201, 2021 WL

2550400, at *6 (11th Cir. June 22, 2021) (“Her ‘convincing

mosaic’ arguments, however, are the same as her pretext

arguments, and they similarly fail to provide sufficient

circumstantial evidence of discrimination or retaliation

under the ADA.”); see also Reyes v. Fed. Express Corp., No.

6:20-CV-278-WWB-EJK, 2021 WL 2895645, at *3–4 (M.D. Fla. July

9, 2021) (rejecting plaintiff’s convincing-mosaic theory

where evidence showed that plaintiff falsified his time card,

lied during an investigation, and was flouting other company

policies).

For the reasons explained above, even drawing all

reasonable inferences in Weiher’s favor, no reasonable jury

could conclude that Lincare’s reasons for firing her were

pretextual.

Defendant is entitled to summary judgment on Count I.

B. Retaliation Claim

In Count II, Weiher asserts a claim for retaliation under

the ADA.

The ADA provides that “[n]o person shall discriminate

against any individual because such individual has opposed

any act or practice made unlawful by [the ADA] or because

such individual made a charge . . . under [the ADA].” 42

U.S.C. § 12203(a). To establish a prima facie case of ADA

retaliation, a plaintiff must show: (1) that she engaged in

statutorily protected activity; (2) that she suffered an

adverse employment action; and (3) a causal link between the

protected activity and the adverse action. Bothwell v. RMC

Ewell, Inc., 278 F. App’x 948, 952 (11th Cir. 2008).

If the plaintiff establishes a prima facie case, the

burden of production shifts to the employer to articulate a

legitimate, nondiscriminatory reason for the challenged

action. EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1272

(11th Cir. 2002). Where the employer meets its burden, the

plaintiff “must introduce significantly probative evidence

showing that the asserted reason is merely a pretext for

discrimination” to avoid summary judgment. Brooks, 446 F.3d

at 1163.

Once again, the Court will assume arguendo that Weiher

has demonstrated a prima facie case of ADA retaliation. As

explained above, Lincare has shown a legitimate and non-

discriminatory reason for her termination.9 And, for the

reasons described above, Weiher has failed to meet her burden

of demonstrating a genuine issue of material fact as to

whether Lincare’s stated reason was pretextual.10 Therefore,

the Motion is granted as to Count II.

9 In her Complaint, Weiher identified the “adverse employment

action” as her termination and did not identify any other

disciplinary action as the basis for her retaliation claim.

See (Doc. # 1 at ¶ 32).

10 It is not clear whether the convincing-mosaic theory

applies to retaliation claims. See Change v. Midtown

Neurology, P.C., No. 1:19-cv-00885, 2021 WL 2483368, at *25

(N.D. Ga. Feb. 3, 2021) (noting that “[t]he Eleventh Circuit

has yet to decide in a published decision whether retaliation

claims can survive summary judgment under a convincing-mosaic

theory” and collecting cases). But even assuming it does,

Weiher does not raise such an argument with respect to her

retaliation claim. Therefore, the Court only considers her

discrimination claim under this theory.

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) Defendant Lincare Procurement, Inc.’s Motion for Summary

Judgment (Doc. # 26) is GRANTED.

(2) The Clerk shall enter judgment in favor of Defendant

Lincare Procurement, Inc. and against Plaintiff Dawn

Weiher.

(3) Once judgment has been entered, the Clerk shall

terminate all deadlines and pending motions, and close

this case.

DONE and ORDERED in Chambers in Tampa, Florida, this

27th day of October, 2021.

VIRGINIA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE

35