Varvaro v. University of Central Florida, Board of Trustees

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

MICHAEL VARVARO,

Plaintiff,

v. Case No: 6:21-cv-329-PGB-LHP

UNIVERSITY OF CENTRAL

FLORIDA BOARD OF

TRUSTEES,

Defendant.

/

ORDER

This cause comes before the Court on Defendant’s Motion for Summary

Judgment, Motion to Dismiss and Memorandum in Support Thereof (Doc. 25 (the

“Motion”)), filed May 2, 2022.1 Plaintiff responded in opposition on May 27,

2022 (Doc. 32); Defendant replied on June 9, 2022 (Doc. 33). Upon consideration

and review of the record, the Court grants in part and denies in part Defendant’s

Motion.

I. BACKGROUND

A. Factual Background

Plaintiff, Dr. Michael Varvaro, was employed in the University of Central

Florida’s (“UCF”) Residency Program as a resident from the summer of 2017 until

1 As will be explained further below and based on the law cited by the Plaintiff (Doc. 25, p. 3)

and the procedural posture of the case, the Court treats Defendant’s Motion as a Motion for

Summary Judgment.

October 2019. The Residency Program endeavors to comport with the standards

set forth by the Accreditation Council for Graduate Medical Education

(“ACGME”) in Family Medicine. (Doc. 27, p. 2). Each year fewer than ten

physicians are admitted to the Residency Program. (Id. at pp. 2–3). Included in

the requirements for these residents is a minimum number of “patient encounters”

that a resident must meet. (Id. at p. 7). Dr. Varvaro is blind in one eye and suffers

from a reading disability as a result. (Id. at p. 4). Neither party disputes that Dr.

Varvaro is disabled and part of a protected class. (Doc. 25, p. 5).

This lawsuit arises out of a dispute as to why Plaintiff’s Medical Resident

Agreement program was not renewed in October 2019. (Id. at p. 4). Plaintiff claims

that he was harassed, discriminated against, and effectively forced to resign from

the program because of his disability, whereas Defendant states that it did not

renew Plaintiff’s Medical Agreement Contract because of Plaintiff’s failure to meet

the program’s conditions of employment and repeated concerns with his clinical

performance in the ambulatory clinic. (Doc. 2, p. 2; Doc. 25, pp. 2–4). The

Agreement states that an unsatisfactory evaluation can result in remediation,

suspension, non-renewal of appointment or termination from the program. (Doc.

27, p. 17).

In his sworn testimony, Plaintiff indicates that he has received disability

accommodations from grade school to medical school and that he again requested

these accommodations in August 2017 during his first year of residency. (Doc. 32-

1, pp. 1–2). These accommodations include additional time on exams, quiet

environments for exams, extended time to complete notes, reduced distraction

environments, enlarged print, alternate formatting of material, note-taking, and

preferred seating. (Id. at p. 1).

Plaintiff testifies that, in tandem with his lack of accommodations, he

experienced a hostile work environment: his supervisors made Plaintiff feel as

though he was being assessed based on his speed, yelled at him, and treated him

as though he was intentionally not trying. (Id. at pp. 2–3). Plaintiff further testifies

that his supervisors generally scrutinized him more heavily and treated him poorly

because of his disability. (Id. at p. 3). For example, Dr. Sayre, one of the program’s

supervising physicians, made Plaintiff stand up in front of the entire residency

program to talk about his dictation device as an accommodation and that the

residents belittled him for his need to use one. (Doc. 32-2, p. 6).2 Plaintiff also

claims that Dr. Lang sent out a program-wide apology email regarding his

treatment of Plaintiff. (Id.).3

Plaintiff testifies that he followed UCF’s policy in making these requests by

approaching the correct doctor within the program directly and by asking his

supervisor in inpatient medicine, Dr. Logan, for said accommodations multiple

times but that these accommodations were not initially provided or acknowledged

as legitimate and warranted. (Id. at p. 3). Specifically, Plaintiff attests that, though

2 Defendant does not address this claim in the record, so the Court accepts as true Plaintiff’s

assertion at this procedural stage.

3 Defendant also does not address this claim in the record, so the Court accepts as true Plaintiff’s

assertion at this procedural stage.

he did receive extended time for his 2017 In-Training Exam, he did not receive a

dictation device or a quiet workspace in advance of the In-Training Exam, which

contributed to his failing the ITE Exam. (Doc. 32-1, ¶ 4). Dr. Lang, one of the

residency supervisors, attested that he was not aware of any of Plaintiff’s requests

until he received an email from Plaintiff on June 13, 2018. (Doc. 27, p. 4). The

record shows that Plaintiff reached out via text message to Shana Ninan, the

Family Medicine Program Coordinator, on September 20, 2017, to request

extended time as well as a dictation device in advance of his exam. (Id. at pp. 32–

34). Ms. Ninan indicated in this exchange that the extended time had been granted

but that she was still working on setting up Plaintiff’s dictation device. (Id. at p.

34). The record contains no evidence that Plaintiff received this device or a quiet

workspace for his 2017 exam.

After Plaintiff failed this In-Training Exam, Defendant indicated that it

placed Plaintiff on an informal remediation plan in January of 2018 based both on

this failure and supervising physicians’ concerns over Plaintiff’s ability to make

proper diagnoses and provide linear and accurate patient presentations as well as

his deficiencies in medical knowledge. (Id. at p. 3). Ultimately, Plaintiff

successfully completed this informal remediation program. (Id. at p. 4). For his

second In-Training Exam in late 2018, Plaintiff re-submitted his request for

accommodations and did receive them; he subsequently earned one of the highest

exam scores in the program. (Doc. 32–1, p. 2). The progress report concerning

Plaintiff’s scores indicated that he received extra time due to his medical disability.

(Id.).

In November 2018, the Clinical Competency Committee issued a counseling

letter to Plaintiff, showing that he had received five to six unsolicited negative

complaints from clinic patients and multiple complaints from clinic staff, including

issues with professionalism and using respectful language. (Doc. 27, p. 35). The

next month, plaintiff began working on the “night-float” rotation and requested a

reduced patient load or a modified work schedule; these requests were denied

because the Office of Institutional Equity found that Plaintiff’s requests were not

reasonable accommodations under the Americans With Disabilities Act (the

“ADA”). (Doc. 26, p. 162). On top of this, Plaintiff testifies that the residency

program instead gave him an increased patient load and told him that he would

have to go above and beyond ACGME standards. (Doc. 32-1, p. 4). Plaintiff attested

that this patient load was higher than the number of patients received by “any other

resident. . . .” (Doc. 32-2, p. 6).4 Plaintiff also states that he was overly scrutinized

and harassed as a result of his slower pace due to his disability. (Id. at pp. 3–5).

Defendant states that “[a]t all times, decisions regarding Dr. Varvaro’s

participation in the Residency Program…were made for legitimate, non-

discriminatory reasons, solely relating to his failure to meet the conditions,

requirements and standards of the Residency Program.” (Doc. 27, p. 7).

4 Defendant does not address this claim in the record, so the Court accepts as true Plaintiff’s

assertion at this procedural stage.

Shortly thereafter, Plaintiff failed his in-hospital “night-float” rotation: his

supervising physician stated in his evaluation that Plaintiff’s clinical knowledge

and ability to synthesize information was “very far” from expectations and that he

had “grave concerns” about whether Plaintiff would be able to care for patients

independently in less than two years. (Id. at pp. 4–5).

After being placed on a “formal” remediation plan in early 2019, Plaintiff

requested and was granted a three-month leave of absence. (Doc. 2-1, p. 4). On or

about February 13, 2019, Plaintiff filed a charge with the EEOC. (Id. at p. 5). Upon

his return, Defendant placed Plaintiff in the Cardiology rotation. (Id.). The

UCF/HCA GME Consortium Policy requires that the:

program director and supervising faculty must provide and

document timely feedback on an ongoing basis for trainees

including formative ‘on-the-spot’ and summative feedback.

This must include both positive feedback as well as feedback

on performance or conduct concerns as they occur.

Documentation must appropriately and accurately reflect the

feedback provided.

(Doc. 32-1, p. 11). Plaintiff attests that he received no such feedback despite his

repeated inquiries into his performance and that his first notice of any failure to

meet standards was when he received notice that he had failed the Cardiology

rotation in July 2019. (Id. at p. 4).5 Plaintiff also states that, during a clinical

competency meeting the following month, Dr. Marcus Tellez—a chief resident

attending the meeting—told him that “Dr. Jones hates [him]” and that “she wants

5 Defendant does not address this claim in the record, so the Court accepts as true Plaintiff’s

assertion at this procedural stage.

[him] gone”. (Doc. 32-2, p. 6).6 Defendant then placed Plaintiff on his second

remediation plan, which Plaintiff appealed unsuccessfully. (Doc. 26, p. 5). The

notice of remediation laid out specific goals that Plaintiff would be required to

meet, the failure of which could result in dismissal from the program. (Doc. 27, p.

45).

Though Plaintiff successfully completed his night-float rotation the second

time around, Defendant cites multiple deficiencies in his Family Medicine rotation,

which Defendant states resulted in the non-renewal of his contract. (Doc. 26, p. 5).

Specifically, Defendant points to two documented incidents of failure to administer

proper care to two high-risk pediatric patients. (Doc. 27, p. 46). Plaintiff ultimately

resigned from the Residency program at the end of 2019. (Doc. 2-1, p. 5). Plaintiff

testifies that Defendant offered him the option either to resign, so that he could

maintain appeal rights and a clean record, or otherwise to face termination without

said benefits. (Doc. 32-1, p. 5). Dr. Lang testified on behalf of Defendant that

Plaintiff’s contract was not renewed due to his performance in multiple respects

and that the decision was for legitimate, non-discriminatory reasons. (Doc. 27, p.

6).

B. Procedural Background

The ADA and Florida Civil Rights Act (the “FCRA”) claims in this case were

originally brought in Florida state court on or about December 30, 2020. (Doc. 2,

6 Defendant does not address this claim in the record, so the Court accepts as true Plaintiff’s

assertion at this procedural stage.

p. 1). Defendants filed for removal on February 11, 2021. (Id.). Plaintiff’s

Complaint asserts four claims for relief against Defendant. (Doc. 2-1, pp. 5–11).

Count I asserts a claim for disability discrimination in violation of the FCRA. (Id.

at p. 5). Count II asserts a claim for disability discrimination under the ADA. (Id.

at p. 7). Count III asserts a claim for retaliation under the FCRA, (Id. at p. 8) and

Count VI asserts the same claim under the ADA. (Id. at p. 9). Defendant now moves

for summary judgment on all four claims. (Doc. 25, p. 1). After Plaintiff’s response

(Doc. 32) and Defendant’s reply (Doc. 33), this matter is ripe for review.

II. STANDARD OF REVIEW

“The court shall grant summary judgment 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). The party moving for summary judgment

must “cit[e] to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations,

stipulations . . . , admissions, interrogatory answers, or other materials” to support

its position that it is entitled to summary judgment. FED. R. CIV. P. 56(c)(1)(A).

“The court need consider only the cited materials” but may also consider any other

material in the record. FED. R. CIV. P. 56(c)(3).

An issue of fact is “genuine” only if “a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A fact is “material” if the fact could affect the outcome of the lawsuit under

the governing law. Id. The moving party bears the initial burden of identifying

those portions of the record demonstrating a lack of genuine dispute of material

fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hickson Corp. v. N.

Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004). If the movant shows “an

absence of evidence to support the nonmoving party’s case,” the burden then shifts

to the non-moving party to demonstrate that there are, in fact, genuine disputes of

material facts. Celotex, 477 U.S. at 325; see also Porter v. Ray, 461 F.3d 1315, 1320

(11th Cir. 2006).

Summary judgment should only be granted “[w]here the record taken as a

whole could not lead a rational trier of fact to find for the non-moving party.”

Matsushita Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A

court may not grant summary judgment if doing so would be based on witness

credibility determination; the Court must accept the non-movant’s competent

testimony as true for the purposes of ruling on summary judgment. Johnson v.

Lang, No. 19-14278, 2022 WL 2734421, at *4 (11th Cir. July 14, 2022) (quoting

Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996)) (“It is not

the court’s role to weigh conflicting evidence or to

make credibility determinations; the non-movant’s evidence is to be accepted for

purposes of summary judgment.”); Allen-Sherrod v. Henry Cnty. Sch. Dist., 248

F. App’x 145, 147 (11th Cir. 2007) (“The district court was correct in observing that

it could not consider Edinger’s credibility as a witness in ruling upon summary

judgment.”);7 Gary v. Modena, No. 05-16973, 2006 WL 3741364, at *16 (11th Cir.

Dec. 21, 2006) (holding that Rule 56(c) precludes summary judgment when the

only way to reconcile conflicting testimony is to “assess the credibility of

witnesses.”).

III. DISCUSSION

Plaintiff alleges two counts of disability discrimination and retaliation under

both the ADA and the FCRA, respectively. However, Plaintiff alleges facts that the

Court believes amount to multiple causes of action under each of these counts: a

disparate treatment claim, a hostile work environment claim, a request for

reasonable accommodation claim, and a retaliation claim.8 The Court will address

the merits of each separate cause of action at the summary judgment stage in turn.9

7 “Unpublished opinions are not controlling authority and are persuasive only insofar as their

legal analysis warrants.” Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340, 1345 (11th Cir.

2007).

8 Typically, the Court would have dismissed this type of amorphous complaint as a shotgun

pleading. See Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1321–23 (11th Cir.

2015) (noting that a complaint is considered a shotgun pleading when it does “not separate

each cause of action or claim for relief into a different count”). However, Defendants failed to

file any motion demanding repleader. Moreover, the Court finds that it can in fact make out

various causes of action from Plaintiff’s complaint and has decided to delineate these causes

of action for the sake of fairness and clarity. See Kelly v. Wal-Mart Stores E., LP, No. 3:18-

CV-1492019 WL 1066065, at *1 (M.D. Ala. Feb. 15, 2019), report and recommendation

adopted, No. 3:18-CV-149 2019 WL 1061663 (M.D. Ala. Mar. 6, 2019) (interpreting Plaintiff’s

complaint as setting forth claims of disparate treatment, failure to hire, lack of reasonable

accommodation, and a hostile work environment under the ADA).

9 See Holmes-Martin v. Leavitt, 569 F. Supp. 2d 184, 191 (D.D.C. 2008) (noting and following

the precedent of recognizing a separate claim as valid even when the plaintiff did not

separately plead the count but nonetheless alleged facts amounting to a viable cause of action).

A. Counts I and II: Disability Discrimination

The ADA proscribes employers from discriminating against an employee on

the basis of the employee’s disability. 42 U.S.C. § 12112(a). In the Eleventh Circuit,

ADA discrimination claims are analyzed under the burden-shifting analysis used

for Title VII employment discrimination claims. Holly v. Clairson Indus., L.L.C.,

492 F.3d 1247, 1255 (11th Cir. 2007). The FCRA is similarly analyzed under the

framework of Title VII disability discrimination cases. Smith v. Naples Cmty.

Hosp., Inc., 433 F. App’x 797, 799 (11th Cir. 2011) (“Because the FCRA is patterned

after Title VII, courts generally apply Title VII case law to discrimination claims

brought under the FCRA.”) (citing Wilbur v. Corr. Servs. Corp., 393 F.3d 1192,

1195 n.1 (11th Cir. 2004)); accord Jones v. United Space Alliance, LLC, 494 F.3d

1306, 1310 (11th Cir. 2007); Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385,

1387 (11th Cir. 1998). To state a prima facie claim for disability discrimination, a

plaintiff must establish three elements: (1) she is disabled,10 (2) she was qualified11

during the relevant time12 and (3) the defendant discriminated against her because

10 Defendant does not challenge that Plaintiff is disabled. (Doc. 25, p. 10) (“For the purposes of

this motion, Defendant concedes that Plaintiff is a person with a disability”).

11 A “qualified individual” is defined under the ADA as “an individual 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).

12 Defendant does challenge whether Plaintiff was qualified at the relevant time, but the Court

finds that Defendant cannot meet its burden for summary judgment on this element based on

its own record: in Defendant’s affidavit of Dr. Quillen, the record shows that, as of June 5,

2019, the Office of Institutional Equity—the entity that analyzed whether Plaintiff’s request

for a reduced patient load was in fact a reasonable accommodation—specifically noted that it

“[left] open” the question of whether Plaintiff was a qualified individual, indicating a dispute

of material fact on this issue, which accordingly must be left for the jury to resolve. (Doc. 26,

p. 162).

of her disability. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir.

2001).

Though not fully apparent until after subsequent briefing, Counts I and II of

Plaintiff’s Complaint seem to seek liability against Defendant under three different

theories of discrimination: 1) disparate treatment of Plaintiff based on his

disability, 2) a claim of a hostile work environment, and 3) a failure to provide

reasonable accommodations for his disability in violation of 42 U.S.C.

§ 12112(b)(5)(A). (Doc. 2-1, ¶¶ 13–39). Defendant contends that Plaintiff cannot

satisfy the third element of a prima facie claim under any theory. (Doc. 25, p. 2).

1. Disparate Treatment

To show disparate treatment, Plaintiff must meet the burdens set forth in

the McDonnell Douglas standard: first, Plaintiff must establish a prima facie case

of discrimination; if Defendant is said to have articulated a legitimate, non-

discriminatory reason for the adverse action, then Plaintiff must show that the

reason is pretextual. Richardson v. Honda Mfg. of Ala., LLC, 635 F. Supp. 2d 1261,

1278 (N.D. Ala. 2009). A showing of discriminatory disparate treatment requires

Plaintiff to point to a “similarly situated” “comparator” from which he was treated

differently. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258–59 (1981)

(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973)).

The Eleventh Circuit maintains a high standard concerning how similar the

comparator must be in order to make a showing of discrimination under a

disparate treatment theory—that is, it must be “similarly situated in all material

respects.” Lewis v. City of Union City, Georgia, 918 F.3d 1213, 1227 (11th Cir.

2019).The Lewis court was careful to delineate specific “sorts of similarities” that

would constitute sufficient likeness, including similarities like a shared

“disciplinary history” or “basic conduct (or misconduct)” in its analysis. Id. at

1227–28.

Defendant argues that Plaintiff fails to meet his burden because he does not

adequately identify a comparator that is similar enough to meet standard that the

Eleventh Circuit has imposed. (Doc. 25, p. 9). In response, Plaintiff asks this Court

to depart from the Eleventh Circuit’s standard. (Doc. 32, pp. 7–8). The Court,

however, cannot make its determination based on whether it believes the Eleventh

Circuit’s demands for showing disparate impact are unreasonable. Accordingly,

the Court must review the case before it within the parameters by which it is bound.

Here, Defendant correctly calls attention to the reality that no comparator

exists in the record that is substantially similar enough to raise a disparate

treatment claim. (Id. at p. 10). Plaintiff argues generally that “[m]any nondisabled

residents got unsolicited patient complaints” as he did and that “one of the

residents was fired from a rotation for unprofessionalism but was allowed to finish

the residency program.” (Doc. 32-1, p. 3). However, Plaintiff does not point to any

other resident in the program with a demonstrably analogous record. Specifically,

Plaintiff’s performance, misconduct, and disciplinary history include the

following: failing a training exam, being placed on two remediations for failing two

separate rotations, receiving unsolicited patient complaints as well as negative

feedback from staff members concerning professionalism, and demonstrating

unsatisfactory medical diagnostic performance in multiple patients. (Doc. 26, pp.

3–5; Doc. 27, pp. 2–7).

The Court sympathizes with Plaintiff in that it acknowledges he may well

have been treated more harshly than his non-disabled counterparts; however,

because there is no comparator in the record meeting the Eleventh Circuit’s test,

Plaintiff’s disparate treatment claim necessarily fails. Consequently, Plaintiff has

not met his burden to survive summary judgment with respect to a disparate

treatment cause of action. Therefore, summary judgment is granted as to this cause

of action.

2. Hostile Work Environment

In contrast, Plaintiff makes a colorable claim of hostile work environment at

this stage. While the Eleventh Circuit has not yet recognized a hostile work

environment claim under the ADA, other circuits—as well as other courts in the

Middle District of Florida—have ruled that such a claim is actionable under the

ADA. Phillips v. Harbor Venice Mgmt., LLC, No. 8:19-CV-2379, 2020 WL

2735201, at *3 (M.D. Fla. May 26, 2020). Like the Phillips court, this Court will

also “assume that a disability-based hostile work environment claim is actionable

under the ADA. Furthermore, given their similar frameworks, this Court will

evaluate [Plaintiff’s] claim under the jurisprudence of Title VII.” Id.

A hostile work environment claim requires that the Plaintiff make the

following showings: (1) [he] belongs to a protected group (i.e., [he] is disabled

under the ADA); (2) [he] was subjected to unwelcome harassment; (3) the

harassment to which [he] was subjected was based on a disability; (4) the

harassment affected a term, condition, or privilege of [his] employment; and (5)

the [supervising entity] knew or should have known of the harassment, but failed

to take prompt, remedial action.” Schwertfager v. City of Boynton Beach, 42 F.

Supp. 2d 1347, 1366 (S.D. Fla. 1999) (citing McConathy v. Dr. Pepper/Seven Up

Corp., 131 F.3d 558, 563 (5th Cir. 1998)).

Further, the harassment must be “sufficiently pervasive so as to alter the

conditions of employment and create an abusive working environment.” Henson

v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982). The issue of whether

harassing conduct was “sufficiently severe or pervasive to alter the terms of

conditions of his employment”—under the fourth element of this prima

facie case—involves both an objective and a subjective component. Miller v.

Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002).

a. Member of a Protected Group

As previously noted, Defendant concedes for purposes of this Motion that

Plaintiff is considered disabled under the ADA. (Doc. 25, p. 10). Accordingly, this

element is not in dispute.

b. Unwelcome Harassment Based on a Disability

Plaintiff here makes several statements in his sworn declaration that,

collectively, defeat a motion for summary judgment concerning a hostile work

environment claim.13 In his sworn declaration, Plaintiff avers that “the work

environment was incredibly hostile” because he had to “work at a slower pace than

[his] non-disabled colleagues and [his] supervisors constantly made [him] feel as

if [he] was being assessed based on [his] speed.” (Doc. 32-1, p. 2). Plaintiff also

attests that his “[s]upervisors would yell at [him] in frustration and treat [him] as

if [he] was intentionally not trying when in fact, [he] just work[s] slightly slower

and was not afforded the accommodations [he] needed.” (Id. at p. 3). He also states

that, “[i]n general, [his] supervisors scrutinized [him] more heavily and treated

[him] more poorly because of [his] disability.” (Id.). Moreover, Plaintiff testifies

that his “supervising physicians nitpicked at [his] every action, ultimately serving

the purpose of harassment” (Id. at p. 5) and that “[d]uring an academic half day

Dr. Sayre made [him] stand up in front of the entire residency program to talk

about the dictation device as [his] accommodation” and that “[t]he residents

belittled the need for [him] having to use one.” (Doc. 32-2, p. 6).

Taking these claims as true, the Court finds that a material question of fact

exists as to whether Plaintiff was in fact subject to unwelcome harassment relating

to his disability. Plaintiff raises evidence of blatantly inappropriate

unprofessionalism that relate directly to his disability at hand. Whether these

13 The Eleventh Circuit has recently held that even sworn, self-serving statements can defeat a

claim for summary judgment. United States v. Stein, 881 F.3d 853 (11th Cir. 2018) (“The Court

of Appeals, en banc, Jordan, Circuit Judge, held that in any civil case, including those in the

realm of tax law, an affidavit which satisfies the federal civil procedure rule governing

summary judgment may create an issue of material fact and preclude summary judgment even

if it is self-serving and uncorroborated, overruling Mays v. U.S., 763 F.2d 1295 [(11th Cir.

1985)].”)

claims are refutable is not a matter for summary judgment but for the jury.

Accordingly, the Court finds that summary judgment is not appropriate with

respect to this element of Plaintiff’s claim.

c. The Severity and Effect of the Harassment, Defendant’s

Knowledge of the Harassment and Failure to Take Remedial

Action

Contemplating the aforementioned Miller factors, the Court finds that the

severity and effect of the harassment that Plaintiff alleges should survive a

summary judgment motion with respect to the fourth element of a hostile work

environment claim. Miller, 277 F.3d at 1276.

i. Subjective Severity Component

Plaintiff presents sufficient evidence such that a triable issue of fact exists

for the subjective component of experiencing harassment severe enough to alter

his work conditions given that he felt compelled to take “a 3-month medical leave

of absence due to the continued stress caused by the Defendant’s failures to

accommodate [his disability].” (Doc. 32-1, p. 4). Defendant does not dispute

Plaintiff’s leave of absence. Accordingly, Plaintiff has done enough for the purpose

of this Motion to show he experienced subjective emotional strife: his perceived

need to remove himself from the program temporarily exemplifies the kind of

subjective impact that satisfies this part of the Miller test.

ii. Objective Severity Component

Plaintiff also makes a sufficient showing of objective severity of harassment

so as to defeat the Motion with respect to this element of the claim. The objective

severity of harassment should be judged from the perspective of a reasonable

person in the plaintiff’s position, considering “all the circumstances.” Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (quoting Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 22 (1993)). When assessing the “objective severity of the

harassment, [a court] consider[s], among other factors: (1) the frequency of the

conduct; (2) the severity of the conduct; (3) whether the conduct is physically

threatening or humiliating, or a mere offensive utterance; and (4) whether the

conduct unreasonably interferes with the employee’s job performance.” Miller, 277

F.3d at 1276. Repeated incidents of verbal harassment, notwithstanding a

plaintiff’s objection to them, rather than any specific number of comments, can

serve as the basis for a harassment claim. Id. The Court reviews Plaintiff’s claim in

light of these factors.

Firstly, Plaintiff alleges that he was yelled at repeatedly and “constantly”

made to feel as though he was being assessed on his speed. (Doc. 32-1, p. 2).

Moreover, Plaintiff’s testimony concerning his repeated requests for his dictation

device and the public humiliation he experienced in terms of having to explain his

accommodation to the entire residency program also tends to show a genuine

dispute of material fact. Plaintiff attests that he made requests to several different

supervising doctors “numerous times” concerning his dictation device but did not

receive one until about a year later. (Doc. 32-2, pp. 3–4). Defendant does not

address this gap in time between Plaintiff’s requests and actual receipt of his

device. Plaintiff also attests that one of the doctors asked him why he needed this

accommodation. (Id. at p. 4). Thus, Plaintiff puts forward evidence showing that

the conduct to which he was subjected was particularly frequent.

Next, the Court finds that Plaintiff’s testimony raises fact issues concerning

whether a jury could find Defendant’s conduct to be “[severe]” and “humiliating”

Miller, 277 F.3d at 1276. When Plaintiff finally did receive his device, Dr. Sayre,

one of the supervising doctors, purportedly made Plaintiff stand up in front of the

entire residency program to address his dictation device as an accommodation,

which resulted in the residents belittling him for needing to use one. (Doc. 32-2, p.

6). Again, Defendant fails to address this claim in any capacity. A reasonable jury

could find that spotlighting Plaintiff’s disability in a professional setting among a

small group of colleagues could humiliate someone in an extreme way. Keeping in

mind the fourth Miller factor, the Court finds that this kind of public scrutinization

could also impact Plaintiff’s performance in a way that was sufficient to “alter the

terms of condition of his employment.” Miller, 277 F.3d at 1276. Overtly singling

out someone’s disability among someone’s non-disabled peers and forcing that

disabled person to explain his condition to those peers could certainly have

profound psychological effects on an individual—especially in a high-stakes,

professional setting where each peer’s performance is constantly being assessed

and measured against one another. With reasonable inferences drawn in Plaintiff’s

favor, a jury could find that this kind of treatment in the workplace, on top of

Plaintiff’s other claims of poor treatment, could have affected his performance.

Finally, Plaintiff submits evidence which creates a fact issue as to whether

Defendant knew about the discrimination and failed to take sufficient efforts to

remediate it accordingly. The Court finds Plaintiff’s combination of offered facts to

be telling: if Defendant in fact permitted Plaintiff to be yelled at and overly

scrutinized him repeatedly and consistently because of his speed, ignored his

requests for a device that would presumably assist Plaintiff with his performance

given his disability, and then subsequently allowed Plaintiff to be ridiculed for

receiving the help he requested, a reasonable jury could surely find that Defendant

did not make sufficient efforts to remediate the harassment at hand.

Plaintiff also attests that “Dr. Lang sent out a program wide apology email

to [him] regarding his treatment of [Plaintiff].” (Doc. 32-2, p. 6). Defendant does

not address this email, nor does the Plaintiff provide the email in the record. Taken

as true and in the light most favorable to the non-moving party, the existence of

this email potentially speaks both to Defendant’s knowledge of the harassment as

well as the extent of its efforts—or lack thereof—to remediate it. Without the full

spectrum of evidence available to assess the severity of the alleged harassment as

well as Defendant’s reaction to it, the Court is obligated to find that there is a

genuine dispute of material fact as to the severity and pervasiveness of harassment

as well as Defendant’s efforts to remediate it here. 14

Consequently, because a genuine dispute of material fact exists regarding

each of the elements of Plaintiff’s hostile work environment claim, summary

judgment for this cause of action is due to be denied.

3. Requests for Reasonable Accommodations

A claim for disability discrimination under the ADA includes situations

where a defendant fails to “mak[e] reasonable accommodations to the known

physical or mental limitations of an otherwise qualified individual with a disability

. . . .” 42 U.S.C. § 12112(b)(5)(A). The burden is on the plaintiff to identify an

accommodation and demonstrate that the accommodation allows her to perform

the essential functions of the job. McKane v. UBS Fin. Servs., Inc., 363 F. App’x

679, 681 (11th Cir. 2010) (per curiam). “[A]n employer’s failure to reasonably

accommodate a disabled individual itself constitutes discrimination under the

ADA, so long as that individual is ‘otherwise qualified,’ and unless the employer

can show undue hardship.” Holly, 492 F.3d at 1262 (emphasis in original).

The Court need not delve any further into a claim for failure to provide

reasonable accommodations given Defendant’s correct assertion that Plaintiff

14 See Holmes-Martin v. Leavitt, 569 F. Supp. 2d 184, 199 (D.D.C. 2008) (denying defendant’s

summary judgment motion on a hostile work environment claim because the defendant’s

allegedly threatening emails in response to plaintiff’s complaint to the EEOC were not

produced and accordingly precluded the court from determining whether a reasonable person

would find workplace hostility).

waived this claim by not pleading it in his complaint. In support of its argument,

Defendant invokes Cooley v. Great S. Wood Preserving, 138 F. App’x 149, 153 (11th

Cir. 2005), which the Court finds authoritative.

The Cooley court explicitly held that the plaintiffs’ hostile work environment

claim failed, despite sufficient factual allegations, because they did not raise this

claim in their amended complaint, instead raising it for the first time in the briefing

on a summary judgment motion. Id. After the defendant objected to this claim on

the ground that “it was raised for the first time in the plaintiffs’ brief opposing

summary judgment,” as was the case here, the plaintiffs argued that the defendant

was not prejudiced by lack of notice, because they had alleged relevant facts in the

amended complaint and subsequently uncovered additional facts in discovery. Id.

The court rejected the plaintiffs’ argument that no prejudice ensued from raising a

previously unpled theory of liability at such a late stage in the proceedings. Id.

Plaintiff’s case for allowing its reasonable accommodation claim to survive

here is even more threadbare than the that of the Cooley plaintiffs. Plaintiff’s

Complaint alleges neither a reasonable accommodation claim, nor—unlike

Plaintiff’s other causes of action—does it allege any facts, plausibly interpreted, in

support of said claim. (See Doc. 2-1). Indeed, Plaintiff did not elicit any facts

supporting an inference of a reasonable accommodation claim until Plaintiff

responded to Defendant’s motion for summary judgment.15

15 Plaintiff’s delayed timing in raising this evidence obviates any potential argument that a

motion to conform the evidence to the pleadings would be appropriate here because the Court

agrees that this would in fact prejudice Defendant given Plaintiff’s lack of providing notice.

Accordingly, the merits of a reasonable accommodation claim need not be

analyzed. Given Plaintiff’s lack of sufficient notice, the Defendant’s Motion for

Summary Judgment on reasonable accommodation is granted.

B. Counts III and VI: Retaliation

For the reasons set forth below, the Court finds that Plaintiff’s retaliation

claims under the ADA and FCRA are sufficient to withstand Defendant’s summary

judgment motion.

“To establish a prima facie case of retaliation pursuant to the ADA, a plaintiff

must show that 1) she engaged in statutorily protected expression, 2) she suffered

an adverse employment action, and 3) the adverse employment action was causally

related to the protected expression.” Moore v. Hillsborough Cnty. Bd. of Cnty.

Comm’rs, 544 F. Supp. 2d 1291, 1305 (M.D. Fla. 2008); Higdon v. Jackson, 393

F.3d 1211, 1219 (11th Cir. 2004); Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322,

1336 (11th Cir. 1999). “As with disability discrimination claims, retaliation claims

brought under the FCRA are analyzed under the ADA framework.” Monroe v. Fla.

Dep’t of Corr., 793 F. App’x 924, 928 (11th Cir. 2019). The burden-shifting analysis

applicable to ADA discrimination claims also applies to ADA retaliation claims.

(Id.). A plaintiff must show that his participation in protected activity was a “but-

for” cause of any adverse action. Bailey v. Metro Ambulance Servs., Inc., 992 F.3d

See Irwin Katz & Assoc., Inc. v. Concepts in Health, Inc., No. CV-13-1217, 2017 WL 593502,

at *21 (D.N.J. Feb. 14, 2017) (noting that a motion to conform the evidence to the pleadings is

inappropriate when the opposing party would be prejudiced and did not expressly or impliedly

consent to said motion).

1265, 1277 (11th Cir. 2021). If a defendant meets its burden of showing a non-

retaliatory reason for the adverse action, a plaintiff can show pretext “either

directly by persuading the court that a discriminatory reason more likely motivated

the employer or indirectly by showing that the employer’s proffered explanation is

unworthy of credence.” Burdine, 450 U.S. at 256. Crucially, “the plaintiff must

either prove by a preponderance of the evidence that the legitimate reasons offered

by the defendant are merely a pretext for discrimination or present sufficient

evidence, of any type, for a reasonable jury to conclude that discrimination was a

“motivating factor” for the employment action, even though the defendant’s

legitimate reason may also be true or have played some role in the decision.”

Borden v. Cheaha Reg’l Mental Health, Inc., No. 1:16-CV-0163, 2018 WL 1431648,

at *10 (N.D. Ala. Mar. 22, 2018), aff’d sub nom., 760 F. App’x 828 (11th Cir. 2019)

(citing McDonnell Douglas, 411 U.S. at 802–05).

1. Engaging in Statutorily Protected Expression

Plaintiff makes a sufficient showing of having engaged in statutorily

protected expression to survive summary judgment. A showing of engagement in

a statutorily protected expression may be met by a request for a reasonable

accommodation as an element of a retaliation claim under the ADA.16 42 U.S.C. §

12203(a); Frazier-White v. Gee, 818 F.3d 1249 (11th Cir. 2016). Filing an EEOC

charge can also be a form of engaging in statutorily protected expression. Johnson

16 Even though Plaintiff failed to properly pled reasonable accommodation as an independent

cause of action, there is sufficient evidence to support the request for reasonable

accommodations as an element for a claim of retaliation.

v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000).

Here, neither party disputes that Plaintiff made requests for reasonable

accommodations or that he filed a charge with the EEOC. (Doc. 2-1, p. 5).

Accordingly, Plaintiff has met his burden to survive summary judgment on this

element of his retaliation claim.

2. Suffering an Adverse Employment Action

Plaintiff’s testimony that he experienced an adverse employment action as

defined by the ADA is also sufficient to withstand the Motion with regard to this

element of his retaliation claims. An adverse employment action is an ultimate

employment decision, such as discharge or failure to hire, or other conduct that

“alters the employee’s compensation, terms, conditions, or privileges of

employment, deprives him or her of employment opportunities, or adversely

affects his or her status as an employee.” Gupta v. Fla. Bd. of Regents, 212 F.3d

571, 587 (11th Cir. 2000). A court should collectively consider the totality of actions

that the plaintiff complains of rather than each action individually when

determining the merits of an adverse employment action. See Shannon v.

Bellsouth Telecomms., Inc., 292 F.3d 712, 716 (11th Cir. 2002) (holding that the

plaintiff’s complaints of adverse actions together rose to a level of adverse

employment action under Title VII even though each one standing alone would

have been insufficient to do so).

Here Plaintiff alleges that Defendant engaged in a series of actions that,

taken together, could lead a reasonable jury to conclude that he experienced at

least one adverse employment action. For one, Plaintiff testifies that when he was

placed on his first remediation in 2018 that he “was kept on remediation for six

months and then put on probation” despite the policy that “remediations are

supposed to be time-limited and are generally not supposed to exceed three

months.” (Doc. 32-1, p. 3). Defendant’s action here followed Plaintiff’s initial

statutorily protected action of requesting accommodations. Plaintiff also

subsequently requested a reduced patient load (which was shown not to be a

reasonable accommodation) but instead shortly thereafter was met with the

opposite: a higher patient load than he previously had, which was more than “any

other resident . . . .” (Doc. 32-2, p. 6). Plaintiff states that Dr. Quiellen, the program

director, told Plaintiff that he would require him to go above and beyond ACGME

standards.17 (Doc. 32-1, p. 4). Plaintiff additionally cites to an email he sent to his

supervisors in which he states that he did not receive continual positive and/or

negative feedback to assess his performance as was required by Defendant’s policy.

(Id. at pp. 20–21). There are times where one’s silence speaks louder than words.

The Court finds that Defendant’s lack of feedback during this period, in connection

with Plaintiff’s allegation that his “first notice of failure to meet standards was

when [he] received the failure notice [and second remediation] in July 2019” as

well as the non-renewal of his contract just two months later, together constitute a

dispute of material fact as to whether an adverse employment action was taken.

17 Defendant also does not address this claim in the record, so the Court accepts as true Plaintiff’s

assertion at this procedural stage.

See, e.g., Winston v. Verizon Servs. Corp., 633 F. Supp. 2d 42, 51 (S.D.N.Y.

2009); see also McBroom v. Barnes & Noble Booksellers, Inc., 747 F. Supp. 2d

906, 918 (N.D. Ohio 2010) (citing cases and finding “evidence in the record that

the negative appraisals and performance plans supplied the necessary foundation

for Plaintiff’s eventual separation” sufficient to constitute adverse actions).

Accordingly, Plaintiff has shown a dispute of material fact as to whether an adverse

employment action as defined by the ADA was taken against him.

3. Causal Connection: Legitimate, Non-Retaliatory Reasons

Versus Pretext

A material dispute of fact also exists regarding whether Plaintiff was

terminated for legitimate, non-retaliatory reasons or whether those reasons were

pretextual. The burden is on the plaintiff to show that the adverse employment

decision was made because of intentional discrimination. Borden, 2018 WL

1431648, at *9. Showing a causal connection between protected activity and an

adverse action requires no more than a demonstration that the two “were not

wholly unrelated.” Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1354 (11th Cir.

1999). A causal connection is established if there is a close temporal proximity

between the employer’s awareness and the adverse employment action. Roberts v.

Rayonier, Inc., 135 F. App’x. 351, 358 (11th Cir. 2005) (citing Farley, 197 F.3d at

1337).

Defendant meets its burden of offering legitimate, non-retaliatory reasons

for not renewing Plaintiff’s contract, namely that Plaintiff demonstrated

incompetency in the pediatric ambulatory clinic on multiple occasions. (Doc. 2, p.

2; Doc. 25, pp. 2–4). Defendant makes showings that it believed Plaintiff

performed poorly highlighting the facts that Plaintiff failed a training exam, was

placed on two remediations for failing two separate rotations, received unsolicited

patient complaints as well as negative feedback from staff members concerning

professionalism, and demonstrated unsatisfactory medical diagnostic

performance in multiple patients. (Doc. 26, pp. 3–5, Doc. 27, pp. 2–7).

Plaintiff, however, subsequently meets his burden of showing a material

dispute of fact concerning whether these reasons were pretextual. After Plaintiff

requested accommodations, Defendant placed him on a purportedly longer-than-

usual remediation period that deviated from policy and possibly materially

disadvantaged Plaintiff in terms of his conditions as an employee. (Doc. 32-1, p. 3).

Secondly, the Court finds that there is a dispute of fact as to the reasoning behind

why Defendant elected to increase Plaintiff’s patient load to one that was higher

than other residents’ immediately after he requested an accommodation for a

lower patient load. A reasonable jury could conclude that the temporal proximities

between the requests and Defendant’s reactions, respectively, demonstrate

Defendant’s potentially discriminatory motive in these instances.

Moreover, Defendant’s failure to provide appropriate feedback toward the

end of Plaintiff’s employment just before the non-renewal of his contract raises an

additional temporal concern that, in the context of Plaintiff’s other cited evidence,

sounds the Court’s alarm. The Court finds that a jury could reasonably conclude

that Plaintiff was relieved of his position for legitimate or retaliatory reasons. Even

putting Plaintiffs other allegations aside, these types of fact-based inquiries into

credibility typify the circumstances under which summary judgment should not be

granted. The merits of this claim are for the jury, and the jury alone. Summary

judgment is due to be denied on the ground of retaliation.

IV. CONCLUSION

Accordingly, itis ORDERED AND ADJUDGED that Defendant’s Motion

for Summary Judgment (Doc. 25) is GRANTED IN PART and DENIED IN

PART.

DONE AND ORDERED in Orlando, Florida on October 14, 2022.

/ □□ / s

PAUL G.

UNITED STATES*DISTRICT JUDGE

Copies furnished to:

Counsel of Record