# Milligan v. Rambosk

> District Court, M.D. Florida · February 24, 2022

URL: https://www.frixlaw.com/law-library/cases/10109486

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** February 24, 2022
- **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/10109486

## How later opinions describe it (automated extraction)

- 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.”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10109486. Public record. Not legal advice.