Milligan v. Rambosk

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

MATTHEW MILLIGAN,

Plaintiff,

v. Case No: 2:20-cv-403-FtM-29MRM

KEVIN RAMBOSK, in his

official capacity as Sheriff

of Collier County, Florida,

Defendant.

OPINION AND ORDER

This matter comes before the Court on review of defendant’s

Motion for Summary Judgment (Doc. #23) filed on October 26, 2021.

Plaintiff filed a Response in Opposition (Doc. #32) on December

10, 2021, and defendant filed a Reply (Doc. #40) on January 3,

2022.

On June 4, 2020, Plaintiff Matthew Milligan (Plaintiff or

Milligan) filed a three-count Complaint against Kevin Rambosk

(Defendant, the Sheriff, or Sheriff Rambosk), in his official

capacity as Sheriff of Collier County, Florida. (Doc. #1.)

Plaintiff alleges that the Sheriff unlawfully discriminated

against him (Count I) and failed to reasonably accommodate his

disability (Count II) in violation of the American Disabilities

Act (ADA), 42 U.S.C. § 12101 et seq. Plaintiff further alleges

that the Sheriff engaged in unlawful discriminatory employment

practices against him (Count III) in violation of the Florida Civil

Rights Act of 1992 (FCRA). (Id., pp. 10-16.) The Sheriff now

seeks summary judgment as to all the claims. For the reasons set

forth below, the motion is denied.

I.

Motions for summary judgment should only be granted when the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, show “there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex

Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d

265 (1986). “An issue of fact is ‘genuine’ if the record taken

as a whole could lead a rational trier of fact to find for the

nonmoving party.” Baby Buddies, Inc. v. Toys “R” Us, Inc., 611

F.3d 1308, 1314 (11th Cir. 2010). A fact is “material” if it may

affect the outcome of the suit under governing law. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A court must

decide ‘whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law.’” Hickson Corp. v. N.

Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004)(quoting

Anderson, 477 U.S. at 251).

In ruling on a motion for summary judgment, the Court views

all evidence and draws all reasonable inferences in favor of the

nonmoving party. Tana v. Dantanna's, 611 F.3d 767, 772 (11th Cir.

2010). However, "[i]f reasonable minds might differ on the

inferences arising from undisputed facts, then the court should

deny summary judgment." St. Charles Foods, Inc. v. America's

Favorite Chicken Co., 198 F.3d 815, 819 (11th Cir. 1999) (quoting

Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-

97 (11th Cir. 1983)). "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, then

the court should not grant summary judgment." Allen v. Bd. of

Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1315 (11th Cir. 2007).

II.

The material relevant facts, viewed in the light most

favorable to Plaintiff when there is a dispute (and some disputed

facts) are as follows:1 Plaintiff was born with a neurological

condition – Ataxic Cerebral Palsy (ACP) – the least common form of

Cerebral Palsy, which has varying degrees of impairment and

symptoms among individuals. Plaintiff asserts that his ACP

substantially limits his brain function, his speech, and his

writing. (Doc. #32, p. 4, ¶ 1.)

1 The facts accepted at the summary judgment stage of the

proceedings may not be the "actual" facts of the case. Harris v.

Wingo, 845 F. App'x 892, 896 (11th Cir. 2021). Most of the facts

are taken from the Statement of Material Facts sections of the

parties’ respective Motion (Doc. #23) and Response (Doc. #32.)

At age fifteen, Plaintiff was diagnosed with Paroxysmal

Kinesigenic Dyskinesia (PKD), a disorder characterized by periodic

involuntary muscle contractions to the right side of his body,

causing that side to lock up. Plaintiff asserts that these muscle

spasms typically last five seconds. (Doc. #32, p. 4, ¶ 3.) Both

parties agree that the PKD does not substantially impede

Plaintiff’s ability to perform any life function. (Doc. #23, pp.

3-4, ¶ 3; Doc. #32, p. 4, ¶ 3.) Both parties also agree that the

spasms can be triggered by a number of factors, including caffeine,

stress, and pressure to Plaintiff’s feet, such as when he drives

or walks. (Doc. #23, p. 4, ¶ 4; Doc. #32, p. 4, ¶ 4.) Plaintiff

asserts that the spasms were completely controlled by medication

beginning March 8, 2019. (Doc. #32, p. 4, ¶ 4.)

In late 2017, Plaintiff applied for a position as a deputy

with the Collier County Sheriff’s Office (CCSO), and did not

request an accommodation during the application process. (Doc.

#23, p. 4, ¶ 6; Doc. #32, p. 5, ¶ 6.) During the routine polygraph

examination which was part of the application process Plaintiff

experienced several spasms which caused him to be unable to

complete the examination. (Doc. #23, p. 4, ¶¶ 7-8.) Plaintiff

voluntarily withdrew his application in December 2017. (Id. at ¶

9.)

On October 26, 2018, Plaintiff again applied to the CCSO for

a position as a certified law enforcement officer (road patrol

deputy). (Doc. #32, p. 8, ¶ 1.) In his CCSO application, Plaintiff

disclosed his ACP and PKD, but did not request any accommodation.

(Doc. #23, p. 5, ¶ 11.) During the polygraph examination Plaintiff

again experienced a muscle contraction, which caused the

examination to be inconclusive. (Id. at ¶ 12.) Nevertheless, in

December 2018 Plaintiff received and accepted a Conditional Offer

of Appointment from the CCSO. (Doc. #32, p. 8, ¶ 2.) Plaintiff

began working as a road patrol deputy on February 5, 2019. (Doc.

#23, p. 5, ¶ 13.)

After accepting the employment, Plaintiff was required to

complete four phases of field training while paired with a field

training officer who taught and evaluated Plaintiff’s performance.

(Doc. #23, p. 6, ¶ 15; Doc. #32, p. 5, ¶ 15.) Plaintiff did not

request any accommodations prior to his field training. (Doc. #23,

p. 6, ¶ 16; Doc. #32, p. 5, ¶ 16.) Plaintiff successfully

completed phase one of his field training, and began the second

phase with Corporal Michael Sweely. (Doc. #32, p. 9, ¶¶ 13-14.) On

March 30, 2019, while driving a patrol vehicle and accompanied by

Corporal Sweely, Plaintiff experienced an involuntary muscle spasm

on his right side due to his PKD. (Doc. #23, p. 6, ¶ 17; Doc. #32,

p. 9, ¶ 15.) The details of this event are disputed: the Sheriff

asserts that Corporal Sweely took control of the steering wheel,

while Plaintiff maintains Corporal Sweely grabbed his arm but did

not take control of the steering wheel. (Doc. #23, p. 6, ¶ 18;

Doc. #32, p. 5, ¶ 18.) In any event, Plaintiff agrees that Corporal

Sweely was concerned and scared by the event. (Doc. #32, p. 5, ¶

18.) Corporal Sweely instructed Plaintiff to pull into a parking

lot for a short period of time. (Doc. #32, p. 6, ¶ 19.) Afterwards,

Corporal Sweely permitted Plaintiff to drive for a short time

before Corporal Sweely drove for the remainder of the day. (Doc.

#23, p. 7, ¶ 20.)

Corporal Sweely documented the incident and reported it to

Captain Mark Baker (Captain Baker) and Human Resources Director

Darlyn Estes (Director Estes). (Id. at ¶ 21.) Plaintiff’s

supervisors ordered him to undergo examination by emergency

medical systems (EMS), which medically cleared Plaintiff. (Id.

at ¶ 20; Doc. #32, p. 6, ¶ 20.) Plaintiff was not permitted to

drive himself home and was directed to take sick leave on March

31, 2019. (Doc. #32, p. 6, ¶ 22.)

On April 1, 2019, Plaintiff met with Captain Baker and

Director Estes. (Id. at ¶ 22.) Plaintiff presented his version

of the March 30, 2019 incident, and provided them with a medical

evaluation that his treating neurologist Dr. John Osterman had

performed in connection with another law enforcement position for

which Plaintiff had applied in 2018. (Id.) Captain Baker and

Director Estes advised Plaintiff that he would need to be evaluated

by a neurologist to determine his fitness for duty, and in the

interim Plaintiff was temporarily assigned to crime prevention

with the same pay and benefits. (Doc. #23, p. 7, ¶ 23.)

On April 5, 2019, the CCSO requested that neurologist Dr.

Brian Wolff evaluate Plaintiff’s fitness for duty. (Id. at ¶ 24.)

Dr. Wolff was provided with Corporal Sweely’s observations of the

March 2019 incident, other medical documentation from Plaintiff,

Plaintiff’s medical questionnaire from the CCSO, and two videos of

Plaintiff experiencing spasms. (Id.) The parties dispute whether

Dr. Wolff was also given a job description for a CCSO road patrol

deputy. (Doc. #32, p. 6, ¶ 24.) On April 30, 2019, Dr. Wolff

performed an in-person fitness for duty examination of Plaintiff.

(Doc. #23, p. 8, ¶ 25.) Afterwards, Dr. Wolff opined Plaintiff was

not fit for duty as a police officer because of the impacts of his

impairments. (Doc. #1-10, p. 3.)

On May 7, 2019, Dr. Osterman prescribed Carbatrol to control

the muscle spasms. (Doc. #23-13.)

At a May 9, 2019 meeting with Sheriff Rambosk and Director

Estes, Plaintiff was reassigned from road patrol deputy and given

a list of various civilian positions to choose from for a new job

with CCSO. (Doc. #23, pp. 8-9, ¶ 26.) In the meantime, Plaintiff

remained in crime prevention. (Id.) Although reassigned, Plaintiff

remained classified as a deputy sheriff. (Id.)

Plaintiff sent a follow-up email to Sheriff Rambosk and

Director Estes on May 15, 2019, stating in part that he believed

he could perform the essential functions of a road patrol deputy

without reasonable accommodations, but would like to consider any

reasonable accommodations in order to continue working as a road

patrol deputy. (Doc. #23, p. 9, ¶ 27.) There was no response to

this email by the Sheriff. (Doc. #32, p. 7, ¶ 27.)

On June 7, 2019, Plaintiff sent a second email advising

Sheriff Rambosk and Director Estes that Dr. Osterman had prescribed

medication (“Carbatrol”) which completely controlled his PKD

spasms, and providing a copy of Dr. Osterman’s June 6, 2019 report.

(Doc. #23, p. 9, ¶ 28; Doc. #32, p. 7, ¶ 28.) Dr. Osterman’s report

stated although the medication had not eliminated muscle

sensations “[t]he episodes of PKD appear to be complexly controlled

at this point in time with medication.” (Doc. #23-9.)

The CCSO forwarded Dr. Osterman’s report to Dr. Wolff for

additional review. (Doc. #23, p. 9, ¶ 29.) Dr. Wolff stated in

part that despite the medication, “one could not guarantee complete

control, even more so if [Plaintiff] were placed in a stressful

situation.” (Doc. #1-12.) Dr. Wolff’s opinion -- that Plaintiff’s

neurological impairment could place himself and others in danger

while working in law enforcement and thus he was not fit for duty

-- remained unchanged. (Doc. #23, pp. 9-10, ¶ 29.)

On July 18, 2019, Plaintiff was removed from his certified

law enforcement position and advised he could be reevaluated by

Dr. Wolff on an annual basis. (Id. at ¶ 31.) Plaintiff was placed

in the CCSO’s criminal investigations division as a civilian

investigator from July 2019 until November 2019, which provided a

higher hourly rate than his former deputy sheriff position. (Id.

at ¶ 32.) In November 2019, Plaintiff was assigned to the CCSO

financial crimes bureau, where he remained working as a civilian

investigator until March 2021, when he voluntarily resigned from

the CCSO. (Id. at ¶ 33.)

Additional facts will be set forth as needed to address

specific issues.

III.

The Sheriff moves for summary judgment on all claims, arguing

that Plaintiff cannot meet the elements for a prima facie claim

for any of the three claims. (Docs. ##23, 40.) Plaintiff responds

that the facts supporting each claim are sufficient to survive a

summary judgment motion. (Doc. #32.)

A. Count I and Count III – Disability Discrimination in

Violation of the ADA and FCRA

Count I and Count III of the Complaint allege that the Sheriff

unlawfully discriminated against Plaintiff due to his disabilities

in violation of the ADA and FCRA, respectively. (Doc. #1, ¶¶ 52-

58, 70-76.) The Sheriff argues that he is entitled to summary

judgment on each count because Plaintiff cannot establish a prima

facie case of disability discrimination under either Act. (Doc.

#23, p. 12.)

(1) Prima Facie Requirements

“[D]isability-discrimination claims under the FCRA are

analyzed using the same framework as ADA claims.” Holly v.

Clairson Indus., L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2007).

Accordingly, federal case law interpreting the ADA is applicable

to claims arising under the FCRA. Matamoros v. Broward Sheriff's

Off., 2 F.4th 1329, 1336 (11th Cir. 2021). The Court will

therefore analyze Plaintiff’s ADA and FCRA claims together. Holly,

492 F.3d at 1255.

The ADA prohibits discrimination "against a qualified

individual on the basis of disability in regard to job application

procedures, the hiring, advancement, or discharge of employees,

employee compensation, job training, and other terms, conditions,

and privileges of employment." 42 U.S.C. § 12112(a). ADA

discrimination claims based on circumstantial evidence, as here,

are analyzed under the burden shifting framework established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Holly, 492

F.3d at 1255-56. Plaintiff must first establish a prima facie

case of discrimination under the ADA. "To establish a prima facie

case of employment discrimination under the ADA, a plaintiff must

show that at the time of the adverse employment action, []he (1)

had a disability, (2) was a qualified individual, and (3) was

subjected to unlawful discrimination because of h[is] disability."

Batson v. Salvation Army, 897 F.3d 1320, 1326 (11th Cir. 2018).

Once a plaintiff establishes a prima facie case, "the burden shifts

to the employer to articulate a nondiscriminatory reason for the

adverse action." Id. at 1329. If this is done, the burden shifts

back to plaintiff to show that the asserted reason is merely a

pretext for discrimination because the reason is false and

discrimination was the real reason. Brooks v. County Com'n of

Jefferson County, Ala., 446 F.3d 1160, 1163 (11th Cir.

2006)(citations omitted.)

(2) Existence Of A Disability

“The ADA defines the term ‘disability’ as (1) a physical or

mental impairment that ‘substantially limits one or more’ of an

individual's ‘major life activities,’ (2) a ‘record of such an

impairment,’ or (3) ‘being regarded as having such an impairment’

as described in subsection (1).” Mazzeo v. Color Resolutions

Int'l, LLC, 746 F.3d 1264, 1268 (11th Cir. 2014) (quoting 42 U.S.C.

§ 12102(1)). The Sheriff asserts he is entitled to summary judgment

because Plaintiff cannot establish he had a disability. (Doc.

#23, pp. 12-15. Plaintiff responds that he meets alternatives (1)

and (3) because he has physical impairments (ACP and PKD) that

substantially limit one or more of his major life activities and

the Sheriff regarded him as disabled due to those impairments.

(Doc. #1, ¶¶ 53, 70; Doc. #32, pp. 14-16.)

(a) Substantially Limits One or More Major Life Activities

The Complaint alleges that Plaintiff has physical impairments

(ACP and PKD) that substantially limit one or more of his major

life activities. (Doc. #1, ¶¶ 53a.) The Sheriff argues that

there is no record evidence showing Plaintiff is substantially

limited in a major life activity because “Plaintiff has

unequivocally maintained that his medical conditions do not

substantially impact any major life function.” (Doc. #23, p. 13.)

Plaintiff responds that his ACP will “virtually always” meet the

“actual disability” prong due to the inherent nature of the disease

and its effect on brain function, and that his speech and writing

are substantially limited by his impairment. (Doc. #32, p. 14.)

Plaintiff also argues that both ACP and PKD “are neurological and

substantially limit brain function.” (Id. at p. 15.)

Effective January 1, 2009, Congress revised and expanded the

scope of “disability” when it passed the ADA Amendments Act

(ADAAA). Because the events in this case took place after the

ADAAA went into effect, the Court applies the post-ADAAA version

of the ADA. Mazzeo, 746 F.3d at 1267.

As mentioned, a disability includes “a physical or mental

impairment that substantially limits one or more major life

activities.” 42 U.S.C. § 12102(1)(A). Thus, to establish a

“disability” under this prong of the definition, Plaintiff must

establish (1) “a physical or mental impairment”, (2) that

“substantially limits”, (3) “one or more major life activities.”

(i) Physical Impairments

The first step is to determine whether Plaintiff’s conditions

constituted a physical impairment. Bragdon v. Abbott, 524 U.S.

624, 631 (1998). It is undisputed that Plaintiff suffers from the

impairments of ACP and PKD.

(ii) Substantially Limits

Not every impairment, however, will constitute a disability

under the ADA. 29 C.F.R. § 1630.2(j). The ADAAA provides that

the term "substantially limits" "is not meant to be a demanding

standard," but rather "shall be construed broadly in favor of

expansive coverage." 29 C.F.R. § 1630.2(j)(1)(i). The term

“substantially limits” is “interpreted and applied to require a

degree of functional limitation that is lower than the standard

for ‘substantially limits’ applied prior to the ADAAA.” 29 C.F.R.

§ 1630.2(j)(1)(iv). “An impairment need not prevent, or

significantly or severely restrict, the individual from performing

a major life activity in order to be considered substantially

limiting.” § 1630.2(j)(1)(ii). Rather, Plaintiff must be

substantially limited in a major life activity "as compared to

most people in the general population." Munoz v. Selig Enters.,

981 F.3d 1265, 1272 (11th Cir. 2020) (quoting 29 C.F.R. §

1630.2(j)(1)(ii)). Here, both ACP and PKD constitute a substantial

limitation “as compared to most people in the general population.”

(iii) Major Life Activities

“The statute [ADA] is not operative, and the definition not

satisfied, unless the impairment affects a major life activity.”

Bragdon, 524 U.S. at 637. Under the ADAAA, major life activities

are defined to

include, but are not limited to . . . performing manual

tasks, . . . walking, standing, lifting, bending,

speaking, breathing, learning, reading, concentrating,

thinking, communicating, and working" as well as "the

operation of a major bodily function, including but not

limited to . . . neurological, [and] brain . . .

functions.

42 U.S.C. § 12102(2)(B). The Sheriff cites mostly to pre-ADAAA

cases to support his contention that cerebral palsy is not a per

se disability, and that many courts have found individuals with

cerebral palsy not to be disabled under the ADA. (Doc. #23, pp.

13-14; Doc. #40, pp. 1-2.)2

The regulations recognize that certain types of impairments

will be found, in virtually all cases, to constitute a "disability"

under the ADA. § 1630.2(j)(3)(ii). The regulations explain that

"[g]iven their inherent nature, these types of impairments will,

2 “Any pre-amendment ADA case thus applies a defunct standard

for defining disability under § 12102, so a court must always

assess whether the ADAAA undercuts the case's reasoning before

relying on it.” Felix v. Key Largo Mgmt. Corp., No. 21-10381,

2021 WL 5037570, at *2 (11th Cir. Oct. 29, 2021).

as a factual matter, virtually always be found to impose a

substantial limitation on a major life activity" and therefore

should demand only a "simple and straightforward" assessment. Id.

For example, the regulations state that it “should easily be

concluded” that “. . . cerebral palsy substantially limits brain

function . . . .” § 1630.2(j)(3)(iii).

Here, Plaintiff has testified that his ACP affects his speech

and his writing, in that his speech is “a little more jagged” and

it takes him a lot longer to write than most people. (Doc. #23-2,

p. 85.) As mentioned above, speaking and communicating are both

major life functions. Viewing the evidence and reasonable

inferences in a light most favorable to Plaintiff, the Court finds

that a reasonable jury could conclude that Plaintiff has ACP and

PKD which substantially limits a major life activity as compared

to most people in the general population. Therefore, Plaintiff

has established a “disability” for summary judgment purposes.

(b) “Regarded As” Disabled

The Sheriff also asserts that there is no evidence showing

that he regarded Plaintiff as disabled because (1) the CCSO had

knowledge of Plaintiff’s impairments before it hired him; (2) the

Sheriff only removed Plaintiff from his law enforcement position

based upon concern for Plaintiff’s ability to safely perform his

job; and (3) Defendant believed Plaintiff could perform other jobs

within the agency. (Doc. #23, pp. 14-15.) Plaintiff responds

that the Sheriff regarded him as disabled because the Sheriff

terminated Plaintiff’s law enforcement position in the belief that

his PKD muscle spasms or ACP made him a direct threat to safety,

and therefore unqualified. (Doc. #32, pp. 15-16.)

Under the "regarded as" component of the disability

definition, an individual is considered disabled if he "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." Lewis v. City of Union City, 934 F.3d 1169, 1181 (11th

Cir. 2019) (citing 42 U.S.C. § 12102(3)(A)). Thus, "a plaintiff

need demonstrate only that the employer regarded him as being

impaired, not that the employer believed the impairment prevented

the plaintiff from performing a major life activity." Wolfe v.

Postmaster Gen., 488 F. App'x 465, 468 (11th Cir. 2012).

The record evidence shows that on July 18, 2019, the Sheriff

terminated Plaintiff from his employment as a certified law

enforcement officer because the muscle spasms caused by

Plaintiff’s PKD impairment made him not fit for duty and unsafe.

(Doc. #23-6, pp. 108-09.) This is sufficient to allow a reasonable

jury to conclude that the Sheriff regarded Plaintiff as disabled.

See, e.g., Lewis, 934 F.3d at 1182 (recognizing “the common sense

principle that an employer that takes an adverse action because it

fears the consequences of an employee's medical condition has

regarded that employee as disabled.”); EEOC v. Am. Tool & Mold,

Inc., 21 F. Supp. 3d 1268, 1276 (M.D. Fla. 2014)(employer who

terminated employee with angina because of feared safety risk to

himself or others has regarded the individual as disabled).

(3) Plaintiff As A Qualified Individual

Even if Plaintiff has a disability, the Sheriff argues that

Plaintiff cannot establish that he was a “qualified individual”

when he was removed from his law enforcement position. (Docs. #23,

p. 15; #40, p. 3.) A "qualified individual" is “an individual with

a disability who, with or without reasonable accommodation, can

perform the essential functions of the employment position that

such individual holds or desires.” 42 U.S.C. § 12111(8). Thus,

if Plaintiff is unable to perform (even with accommodation) an

essential function of the road deputy position, he was not a

“qualified individual” and fails to establish a prima facie case.

Additionally, an individual is not a “qualified individual”

if, by performing the duties of a given position, he would pose a

“direct threat” to himself or others. The ADA defines a “direct

threat” as “a significant risk to the health or safety of others

that cannot be eliminated by reasonable accommodation.” 42 U.S.C.

§ 12111(3). Regulations have extended the definition of “direct

threat” to include threats to the worker himself. See 29 C.F.R. §

1630.2(r). If a plaintiff cannot establish that "he was not a

direct threat," then "he is not a qualified individual and

therefore cannot establish a prima facie case of discrimination."

Todd v. Fayette Cty. Sch. Dist., 998 F.3d 1203, 1221 n.9 (11th

Cir. 2021) (quoting Waddell v. Valley Forge Dental Assocs., Inc.,

276 F.3d 1275, 1280 (11th Cir. 2001)).

A “direct threat” “must be ‘based on a reasonable medical

judgment that relies on the most current medical knowledge and/or

the best available objective evidence,’ and upon an expressly

‘individualized assessment of the individual's present ability to

safely perform the essential functions of the job,’ reached after

considering, among other things, the imminence of the risk and the

severity of the harm portended.” Chevron U.S.A. Inc. v. Echazabal,

536 U.S. 73, 86 (2002) (quoting 29 C.F.R. § 1630.2(r)). See also

Lewis, 934 F.3d at 1184. This includes consideration of (1) the

duration of the risk; (2) the nature and severity of the potential

harm; (3) the likelihood that the potential harm will occur; and

(4) the imminence of the potential harm. 29 C.F.R. § 1630.2(r);

Echazabal, 536 U.S. at 86. An employer may not “deny an employment

opportunity to an individual with a disability merely because of

a slightly increased risk. The risk can only be considered when it

poses a significant risk, i.e., high probability, of substantial

harm; a speculative or remote risk is insufficient.” EEOC v.

Browning-Ferris, Inc., 262 F. Supp. 2d 577, 587 (D. Md. 2002)

(quoting EEOC Interpretive Guidance on 29 C.F.R. § 1630.2(r)).

An employer must point to particularized facts about the

specific person's condition to support its decision. A good-faith

belief that a significant risk of harm exists is insufficient if

it is not grounded in medical or other objective, scientific

evidence. Bragdon, 524 U.S. at 649. The key inquiry is whether

the employer made a reasonably informed and considered decision

before taking an adverse employment action. Lowe v. Alabama Power

Co., 244 F.3d 1305, 1308–09 (11th Cir. 2001).

The essential functions of a position "are the fundamental

job duties of a position that an individual with a disability is

actually required to perform." Garrison v. City of Tallahassee,

664 F. App'x 823, 826 (11th Cir. 2016) (quoting Holly, 492 F.3d at

1257). Whether a function is "essential" is determined on a case-

by-case basis. Id. The Sheriff maintains that the essential

functions of a CCSO road patrol deputy include driving a patrol

vehicle, apprehending suspects, and handling firearms. (Doc. #23,

p. 15.)

Here, there are conflicting medical opinions. In June 2018

(prior to Plaintiff taking medication for his PKD spasms), Dr.

Osterman opined Plaintiff could perform the duties of vigorous law

enforcement, participate fully in both offensive and defensive

tactics (throws, take downs, and restraint applications), and

withstand force and pressure in non-lethal control techniques.

(Doc. #1-8.) After Plaintiff began taking medication (Carbatrol)

for his PKD spasms on May 8, 2019, his PKD spasms were “completely

controlled” and he did not experience a single spasm. (Doc. #34-

12.) On June 6, 2019, Dr. Osterman examined Plaintiff and noted

that he was no longer experiencing spasms and his “PKD episodes

appear to be completely controlled at this point in time with

medication,” with no side effects from the medication. Dr. Osterman

stated that in terms of Plaintiff’s capacity to perform his job as

a law enforcement officer, his performance to date reflected that

Plaintiff has been able to overcome his disability. (Doc. #34-21,

p. 2.)

Prior to Plaintiff being prescribed Carbatrol, Dr. Wolff

examined Plaintiff and opined that Plaintiff had “neurological

deficits” and that Plaintiff’s PKD could pose a safety risk to

Plaintiff and others if he experienced a spasm while driving a

patrol car at a high rate of speed or tried to subdue or handcuff

a criminal suspect.3 (Doc. #1-10, p. 3.) On June 20, 2019, Dr.

Wolff provided an addendum to his initial report after considering

Dr. Osterman’s most recent opinion that Plaintiff’s PKD spasms

were completely controlled. Dr. Wolfe concluded that “one could

not guarantee complete control, even moreso if Matthew were placed

3 The Sheriff did not provide Dr. Wolff with a copy of

Plaintiff’s physician’s assessment, the results of the physical

agility test, or daily reports from Plaintiff’s field training.

(Doc. #23-6, pp. 89-90.)

in a stressful situation.” (Doc. #1-12.) Dr. Wolff’s initial

opinion remained unchanged.

“Because few, if any, activities in life are risk free, . .

. the ADA do[es] not ask whether a risk exists, but whether it is

significant.” Bragdon, 524 U.S. at 649. Based on the foregoing,

a reasonable jury could conclude that by relying on Dr. Wolff’s

opinion the Sheriff did not make a reasonably informed and

considered employment decision. A jury could find that the

Sheriff’s assessment of Plaintiff, based entirely on the opinion

of physician who had no experience treating PKD and who only

examined Plaintiff prior to receiving medication for his spasms,

was not premised on the most current medical knowledge or the best

available objective evidence. Dr. Wolff’s opinion does not

indicate if he considered whether Plaintiff (post-medication)

posed a high probability of substantial harm, or whether there was

a speculative, remote risk of harm. Rather, a reasonable

inference would be that Dr. Wolff reached his opinion because there

was no guarantee that Plaintiff’s spasms would never occur again,

making Plaintiff not fit for duty. Furthermore, the Sheriff did

not seek input from any other physicians with expertise in treating

PKD, nor did the Sheriff assess the credence of Plaintiff’s own

belief that his medication had eliminated the spasms and he was

well able to perform the essential duties of a road patrol deputy.

In sum, viewing the evidence in the light most favorable to

Plaintiff, material questions of fact remain as to whether

Plaintiff posed a direct threat to his safety or the safety of

others, and whether the Sheriff’s decision to terminate his

employment was based on particularized facts using the best

available objective medical evidence, as required by the governing

regulations. Resolving those questions will hinge on assessment

of witness credibility and a weighing of the evidence, which are

tasks the Court may not perform in reviewing a summary judgment

motion. Buending v. Town of Redington Beach, 10 F.4th 1125, 1130

(11th Cir. 2021). Therefore, summary judgment is denied on the

issue of whether, or not Plaintiff is a qualified individual.

(4) Unlawful Discrimination “Because of” Disability

The final prima facie element “requires evidence sufficient

to permit the fact finder to conclude that the employee was

discriminated against "because of" his disability. Lewis, 934

F.3d at 1183. The evidence shows that Defendant terminated

Plaintiff’s employment as a certified law enforcement officer

because Plaintiff’s impairment made him not fit for duty and

unsafe. (Doc. #23-6, pp. 108-09.) As Ms. Estes testified:

Q. Well, you believe that because of this

impairment that he was not fit for duty as a

law enforcement officer, and you terminated

that appointment; is it a fair statement?

A. Yes.

(Id.) Accordingly, Defendant is not entitled to summary judgment

concerning Plaintiff’s prima facie case of disability

discrimination under the ADA and FCRA.

(5) Whether the Sheriff Had A Legitimate, Non-Discriminatory

Reason For Terminating Plaintiff

Although Plaintiff can survive summary judgment as to his

prima facie case of disability discrimination, the Sheriff may be

entitled to summary judgment if he “articulate[s] a legitimate,

nondiscriminatory reason for the employment action.” Wilson v. B/E

Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004)). "To satisfy

this intermediate burden, the employer need only produce

admissible evidence which would allow the trier of fact rationally

to conclude that the employment decision had not been motivated by

discriminatory animus." Combs v. Plantation Patterns, 106 F.3d

1519, 1528 (11th Cir. 1997)).

Here, the Sheriff argues he had legitimate, non-

discriminatory reasons for removing Plaintiff from his certified

law enforcement position, i.e., Plaintiff’s PKD spasms posed a

threat to himself and other CCSO deputies. (Doc. #23, pp. 18-19.)

Defendant relies upon Dr. Wolff’s opinion that Plaintiff suffered

from ACP and PKD and that such neurological impairments made

Plaintiff not fit for duty. (Doc. #23, p. 19.) Plaintiff responds

that the threat to safety justification was itself discriminatory.

(Doc. #32, pp. 23-24.) Viewing the evidence and reasonable

inferences in a light most favorable to Plaintiff, a trier of fact

could rationally conclude that the Sheriff’s reason for

terminating Plaintiff’s employment as a road patrol deputy was

legitimate and non-discriminatory. Plaintiff must therefore

satisfy his burden of showing the reason was a pretext for

discrimination.

(6) Pretext

Once the employer meets its burden to produce a non-

discriminatory reason for its actions, the presumption of

discrimination is eliminated. Reeves, 530 U.S. at 143. To

survive summary judgment, the employee must come forward with

evidence sufficient to permit a reasonable fact finder to conclude

that the legitimate reasons given by the employer were not its

true reasons, but were a pretext for discrimination. Vessels v.

Atlanta Indep. Sch. Sys., 408 F.3d 763, 771 (11th Cir.

2005)(citations omitted.) This evidence must reveal “such

weaknesses, implausibilities, inconsistencies, incoherencies or

contradictions in the employer's proffered legitimate reasons for

its actions that a reasonable factfinder could find them unworthy

of credence.” Cooper v. Southern Co., 390 F.3d 695, 725 (11th Cir.

2004). The evidence may include the previously produced evidence

establishing the prima facie case. Furcron v. Mail Centers Plus,

LLC, 843 F.3d 1295, 1313 (11th Cir. 2016) (citations omitted.

Plaintiff is entitled to survive summary judgment only “if there

is sufficient evidence to demonstrate the existence of a genuine

issue of fact as to the truth of each of the employer's proffered

reasons for its challenged action.” Id.

Here, Plaintiff has met his burden. As discussed below, the

evidence suggests that the Sherriff failed to follow proper

procedure by not engaging in an interactive process to discuss

reasonable accommodations for Plaintiff. A defendant's failure to

follow policies or procedures may provide evidence of pretext. See

Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 267

(1977) (a departure from normal procedures “might afford evidence

that improper purposes [played] a role” in an employee's

termination.) Thus, a reasonable jury could conclude that the

Sheriff’s stated safety reason was pretextual because it was not

formed in compliance with the legal standard and was made without

discussing reasonable accommodations with Plaintiff.

B. Count II — Reasonable Accommodation Claim

Count II of the Complaint alleges a reasonable accommodation

claim against the Sheriff. (Doc. #1, ¶¶ 59-68.) Specifically,

Plaintiff alleges that he requested reasonable accommodations from

the Sheriff that would allow him to continue working in the

certified law enforcement officer position, but the Sheriff failed

to initiate or engage in an interactive process to discuss

accommodations, failed to respond to his request, rejected his

request, and failed to offer any reasonable, effective

alternative. (Id., ¶¶ 64-65.)

"An employer "discriminate[s] against a qualified individual

on the basis of disability" by, inter alia, "not making reasonable

accommodations to the known physical or mental limitations of an

otherwise qualified individual with a disability who is an ...

employee, unless such covered entity can demonstrate that the

accommodation would impose an undue hardship on the operation of

the business of such covered entity." 42 U.S.C. § 12112(b)(5)(A).

To state a prima facie claim for failure to accommodate

under the ADA, a plaintiff must show that: (1) he is

disabled; (2) he is a qualified individual, meaning able

to perform the essential functions of the job; and (3)

he was discriminated against because of his disability

by way of the defendant's failure to provide a reasonable

accommodation.

Russell v. City of Tampa, 652 F. App'x 765, 767 (11th Cir. 2016)

(citing Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th

Cir. 2001)). The Sheriff argues that Plaintiff cannot establish

any of the three elements. (Doc. #23, pp. 21-25.)

(1) Disability; Qualified Individual

With regard to the first and second elements, the Court has

found that genuine issues of material fact remain as to whether

Plaintiff’s ACP and PKD constitute a disability and whether

Plaintiff is a qualified individual pursuant to the ADA and FCRA.

These findings apply equally to Count II.

(2) Specific Demand; Interactive Process

Turning to the third element, “an employer's duty to provide

reasonable accommodation is not triggered unless a specific demand

for an accommodation has been made.” Frazier-White v. Gee, 818

F.3d 1249, 1256 (11th Cir. 2016) (quoting Gaston v. Bellingrath

Gardens & Home, Inc., 167 F.3d 1361, 1363-64 (11th Cir. 1999)).

Plaintiff's burden is not onerous and "for a demand to be specific

enough to trigger the duty to provide a reasonable accommodation,

the defendant must have enough information to know of both the

disability and desire for an accommodation, or circumstances must

at least be sufficient to cause a reasonable [employer] to make

appropriate inquiries about the possible need for an

accommodation." United States v. Hialeah Hous. Auth., 418 F. App'x

872, 876 (11th Cir. 2011) (internal quotation marks omitted); see

Holly, 492 F.3d at 1261 n.144.

4 Holly cited the EEOC Compliance Manual providing examples

of accommodation requests, and gave the following examples as

sufficient requests for accommodation:

Example A: An employee tells her supervisor, "I'm having

trouble getting to work and my scheduled starting time

because of medical treatments I'm undergoing."

Example B: An employee tells his supervisor, "I need six

weeks off to get treatment for a back problem."

Example C: A new employee, who uses a wheelchair, informs

the employer that her wheelchair cannot fit under the

desk in her office. This is a request for reasonable

accommodation.

The Sheriff argues that because Plaintiff did not make a

direct and specific request for an accommodation, there was no

failure to accommodate Plaintiff. (Doc. #23, p. 23.) The record

evidence shows that on May 15, 2019, Plaintiff stated in part,

I believe that I can perform all the functions without

reasonable accommodations but I would like to consider

any reasonable accommodations that would be an option

and that would permit me to continue as a road patrol

deputy. Either way, I am pleading with the agency and

the Sheriff to reconsider its decision and allow me to

continue as a road patrol deputy with or without

reasonable accommodations.

(Doc. #34-12)(emphasis added). Plaintiff’s request does not

identify a specific accommodation. Given Plaintiff’s request for

any reasonable accommodation, a rational fact-finder could

conclude that the Sheriff knew of Plaintiff’s desire for an

accommodation. Furthermore, the evidence demonstrates that at the

time of Plaintiff’s request the Sheriff had knowledge of

Plaintiff’s ACP and PKD, Plaintiff’s PKD spasms, and had removed

him from his law enforcement based on Dr. Wolff’s opinion that

Plaintiff’s neurological deficits and PKD spams made him unfit for

duty. (Doc. #1-10.) Thus, viewing the evidence and reasonable

inferences in a light most favorable to Plaintiff, the Court finds

there exists genuine issues of fact as to whether Plaintiff’s

request for an accommodation was sufficient to trigger the

Sheriff’s obligation to engage in the interactive process.

Holly, 492 F.3d at 1261 n.14.

The Sheriff further argues that Plaintiff’s assertion that he

failed to engage in the interactive process has no merit, and that

the Sheriff cannot be liable because he considered Plaintiff’s

request and concluded no reasonable accommodations existed. (Doc.

#23, p. 24.) The record does not support this position.

"To determine the appropriate reasonable accommodation it may

be necessary for the covered entity to initiate an informal,

interactive process with the individual with a disability in need

of the accommodation. This process should identify the precise

limitations resulting from the disability and potential reasonable

accommodations that could overcome those limitations." Bagwell v.

Morgan Cnty. Comm'n, 676 F. App'x 863, 866 (11th Cir. 2017)(quoting

29 C.F.R. 1630.2(o)(3)). "The interactive process begins when an

employee requests an accommodation." Bralo v. Spirit Airlines,

Inc., No. 13-60948-Civ, 2014 U.S. Dist. LEXIS 36042, at *47 (S.D.

Fla. Mar. 19, 2014) (quoting Pantazes v. Jackson, 366 F. Supp. 2d

57, 70 (D.D.C. 2005)). “[A]n employer's failure to engage in the

interactive process under the ADA is actionable only if and to the

extent that such failure culminates in a failure to provide

reasonable accommodation.” Crutcher v. Mobile Hous. Bd., No. 04-

0499-WS-M, 2005 U.S. Dist. LEXIS 35402, at *63 (S.D. Ala. Oct. 20,

2005); see also Fleetwood v. Harford Systems Inc., 380 F. Supp.2d

688, 701 (D. Md. 2005) ("an employee cannot prevail simply by

demonstrating that his employer failed to engage in the interactive

process; he also must show that this failure to engage in the

process resulted in the failure to find an appropriate

accommodation").

Absent from the record is any evidence showing that upon

receiving Plaintiff’s May 2019 accommodation request, the Sheriff

responded in an open, interactive process to determine what, if

any, reasonable accommodations could be made on Plaintiff’s

behalf. Director Estes testified that she concluded there were no

reasonable accommodations for Plaintiff, but without engaging in

a discussion with Plaintiff, or anyone else, about potential

accommodations that would permit him to remain working as a road

patrol deputy. (Doc. #23-2, pp. 64-66, 71.) On the other hand,

Plaintiff testified that reasonable accommodations could have

included him being a “second rider in a [patrol] car,” working on

bike patrol, or providing an interim period to monitor the efficacy

of his spasm medication in preventing his PKD spasms. (Doc. #23-

2, pp. 111-12.)

The Court finds that a reasonable jury could conclude that

the Sheriff is liable because of a failure to respond to

Plaintiff’s request for an accommodation and engage in an

interactive process, which culminated in a failure to provide a

reasonable accommodation. See Crutcher, 2005 U.S. Dist. LEXIS

35402, at *63. Defendant’s motion for summary judgment as to

Count II is therefore denied.

Accordingly, it is hereby

ORDERED:

Defendant’s Motion for Summary Judgment (Doc. #23) is DENIED.

DONE and ORDERED at Fort Myers, Florida, this 24th day

of February, 2022.

Z — 2, _ /

JGHE E. STEELE

5 IOR UNITED STATES DISTRICT JUDGE

Copies:

Counsel of Record