# Varvaro v. University of Central Florida, Board of Trustees

> District Court, M.D. Florida · October 14, 2022

URL: https://www.frixlaw.com/law-library/cases/10111251

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** October 14, 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/10111251

## How later opinions describe it (automated extraction)

- 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”
- 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
- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10111251. Public record. Not legal advice.