Rohttis v. Lee County School District

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

NERY ROHTTIS,

Plaintiff,

v. Case No: 2:21-cv-737-JES-NPM

THE SCHOOL DISTRICT OF LEE

COUNTY, FLORIDA,

Defendant.

OPINION AND ORDER

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

Motion For Summary Judgment (Doc. #59) filed on March 28, 2023.

Plaintiff filed a Response in Opposition (Doc. #62) on April 27,

2023, to which Defendant Replied (Doc. #63) on May 11, 2023.

Plaintiff Nery Rohttis (Plaintiff or Ms. Rohttis) is a former

School Bus Operator for defendant The School District of Lee

County, Florida (Defendant or the School District). Plaintiff

filed an eight-count Second Amended Complaint (SAC) against

Defendant asserting various claims of employment discrimination.

(Doc. #40.) Defendant now seeks summary judgment on the SAC’s last

two remaining counts.1 In these counts Plaintiff alleges the

School District retaliated against her by suspending her without

1 On August 1, 2022, the Court dismissed without prejudice

Counts I, II, III, IV, VII, and VIII of the Second Amended

Complaint. (Doc. #50.)

pay from her job as a bus driver and not renewing her contract for

the 2019-2020 school year after she objected to discriminatory

actions. Count V alleges this conduct violated the American with

Disabilities Act, 42 U.S.C. §§ 12101, et seq. as amended (the ADA),

while Count VI alleges this conduct violated the Florida Civil

Rights Act (the FCRA). For the reasons set forth below, the motion

is granted in part and denied in part.

I.

Motions for summary judgment should only be granted when the

pleadings, depositions, answers to interrogatories, and admissions

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

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

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

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

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

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

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

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

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

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

decide ‘whether the evidence presents a sufficient disagreement to

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

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

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

Anderson, 477 U.S. at 251).

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

all evidence and draws all reasonable inferences in favor of the

nonmoving party. Baxter v. Roberts, 54 F.4th 1241, 1253 (11th

Cir. 2022). However, "[i]f reasonable minds might differ on the

inferences arising from undisputed facts, then the court should

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

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

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

97 (11th Cir. 1983)). "If a reasonable fact finder evaluating the

evidence could draw more than one inference from the facts, and if

that inference introduces a genuine issue of material fact, then

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

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

II.

The undisputed material facts, or the disputed facts as viewed

in the light most favorable to Plaintiff as the non-moving party,

are as follows:

Plaintiff was born in the Dominican Republic and her first

language is Spanish; she understands English but does not speak it

correctly. (Doc. #59-1, p. 5.)2 Plaintiff attended but did not

2 The page numbers refer to those generated by the Court's

computer system upon filing (upper right-hand corner) and do not

complete high school in the Dominican Republic, and eventually

obtained a high school equivalent diploma in Florida. (Id., p.

6.)

Plaintiff was employed by the School District as a School Bus

Operator for over eighteen years, from approximately March 2000

through August 2019. (Id., p. 7.) Plaintiff worked from Defendant’s

“Transportation West Compound” in Cape Coral, Florida. (Id., p.

49, ¶ 6.) Plaintiff’s immediate supervisor was Yvonne Stewart, and

Stewart’s supervisor was Richard Perdue, the School District’s

Director of Transportation Services for the Transportation West

Zone. (Id., pp. 8-9.)

On March 15, 2018, Plaintiff experienced a work-related

accident when she fell while helping a student exit a school bus.

(Id., pp. 10, 18.) Plaintiff injured the left side of her body,

including fracturing her left wrist, which required her arm to be

placed in a cast for two to three months. (Id., pp. 10, 12.)

Plaintiff immediately filed a claim for Workers’ Compensation

benefits against the School District (Id., p. 10), and eventually

retained counsel in connection with that claim. (Id., p. 3.)

Plaintiff remained out of work until July 19, 2018, when her

treating physician, Dr. Ed Gomez, released her to work under the

restrictions of “Light Duty Max Lifting 10 lbs.” (Id., pp. 12,

always correspond with the page number or exhibit as designated by

the parties.

43.) The School District accommodated Plaintiff’s work

restrictions by reassigning Plaintiff to various jobs, including

assisting the dispatcher, helping children at lunch time, and

assisting with students who arrive by bicycle. (Id., p. 13.)

Plaintiff believes that she was not physically capable of operating

a school bus while she was restricted to light-duty work. (Id.)

Plaintiff did not operate a school bus for more than one year

following her March 2018 accident (Id., pp. 13, 15; Doc. #62-1, p.

2, ¶ 10), and her commercial driver’s license expired on November

3, 2020. (Doc. #59-1, p. 7.)

On April 9, 2019, Dr. Gomez completed a Florida Workers’

Compensation Uniform Medical Treatment Status Report, stating that

Plaintiff was released to “regular duty” and is “ok to drive,” but

did not determine maximum medical improvement (MMI). (Doc. #63-1,

p. 5.) Plaintiff believed she could “go back and perform her

duties” upon Dr. Gomez’s release. (Doc. #59-1, p. 14.) Dr. Allen

Tafel (pain management) released Plaintiff to return to regular-

duty work approximately one week later. (Id.)

On April 12, 2019, Mr. Perdue requested that Plaintiff take

a class on April 22, 2019, since Plaintiff “has been out for so

long.”3 (Doc. #62-1, p. 16.) At an unknown date, Deborah Ferris,

3 The record does not indicate the type of class or testing

that Plaintiff was to undergo beginning on April 22nd. (Doc. #62-

1, p. 16.

the School District’s Road Safety Supervisor, administered

Plaintiff’s testing. Because Ms. Ferris believed Plaintiff was

not capable of performing the physical portion of the testing, she

did not require Plaintiff to do so. (Id., p. 13, ¶ 7.) On April

17, 2019, Ms. Ferris emailed Mr. Perdue to “question[]

[Plaintiff’s] ability at this time to complete class due to the

fact that she cannot participate in the hands on portion because

of her injuries and being on light duty.” Ms. Ferris also asked

Mr. Perdue whether Plaintiff had undergone dexterity testing.

(Doc. #62-1, p. 13, ¶ 8, p. 16.) Mr. Perdue responded that

“[Plaintiff] is not on light duty. She has been returned to full

duty. She has no limitations.” (Id., p. 16.)

On May 7, 2019, Dr. Gomez completed a second Florida Workers’

Compensation Uniform Medical Treatment Status Report stating that

Plaintiff could return to “regular duty,” she had reached MMI, and

had a 1% impairment rating (body as a whole). (Doc. #59-1, p. 43.)

Later in the day, about 4:30 p.m., Plaintiff attempted to complete

eight hours of “behind-the-wheel” training that was required by

the School District (and Florida law) before Plaintiff could return

to her former position as a School Bus Operator.4 (Id., pp. 14-15,

4 Under the Florida Administrative Code, “[a]t the time of

reemployment, the school board shall assure that:

(8) . . . If not more than a twelve continuous calendar

month break in service has occurred, a[] [school bus]

operator shall be required to complete eight (8) hours

50; Doc. #40-1, p. 4.) Ms. Anna Basye, the School District’s

Safety and Training Instructor, conducted the “behind-the-wheel”

training with Plaintiff. (Doc. #40-1, p. 4.) About two hours

later, Ms. Basye reported the following to at least nine of

Defendant’s transportation supervisors:

I noticed that Nery was not using her left hand at all

while driving. I told her that we should be driving with

both hands. It seemed very dangerous with her turning

corners with only one hand. I could tell that it was

very hard for her to do. She even used her right hand to

turn on her directional signals. Sometimes she would

get to shaking [and] trembling. After about fifteen or

twenty minutes she started crying an [sic] said her

shoulder and hand was in a lot of pain. She said she

couldn’t drive anymore. So I drove back to west compound

and we both spoke to Nancy. Nery [Plaintiff] told us

both that it was too painful to drive. She also said

she was very sad and depressed, that she can’t do

anything that she used to do or do it normally. It is

my opinion and I am no [doctor] but she is not able

enough to drive a school bus. . . .

(Doc. #40-1, p. 4.) Plaintiff testified she was not given another

opportunity to complete the “behind-the-wheel” training, nor did

the School District request that Plaintiff undergo additional

testing. (Doc. #59-1, pp. 15-16.)

of inservice training related to their responsibilities

for transporting students prior to driving a school bus

with students. If a period exceeding twelve (12)

calendar months has occurred, the operator shall be

required to successfully complete all of the

requirements of subsections (2) through (6) of this

rule.

Fla. Admin. Code Ann. R. 6A-3.0141.

On the morning of May 20, 2019, Plaintiff presented to Dr.

Tafel’s physician’s assistant for a follow-up visit, stating her

primary complaint was “left upper extremity pain.” (Id., p. 45.)

Plaintiff advised the physician’s assistant that she was recently

cleared by Dr. Gomez to return to regular duty as a school bus

operator, but she “could not even tolerate it for 25 minutes” and

was “unable to turn the steering wheel.” (Id.) The physician’s

assistant opined that Plaintiff had continued left upper extremity

pain symptoms, but her “work status remains the same as per Dr.

Gomez”, i.e., regular-duty work. (Id., p. 46.)

On the afternoon of May 20, 2019, Plaintiff clocked into

Defendant’s Transportation West Compound to begin working.

Plaintiff spoke with Gladys Rodriguez, her supervisor, and Mr.

Perdue, who was on a speaker phone. (Id., p. 19.) Mr. Perdue

informed Plaintiff that her medical records showed she had no work

restrictions, and therefore she was required to meet the minimum

qualifications for her position, which included the eight hours of

“behind-the-wheel” training. (Id.; Doc. #63-1, p. 2, ¶ 5.) Mr.

Perdue advised Plaintiff to communicate with the School District’s

Insurance Coordinator, Cathy Richards, as well as Plaintiff’s

attorney and physicians, regarding any concerns about her ability

to perform essential functions of her job in light of her release

to regular-duty work.5 (Doc. #63-1, p. 2, ¶ 5.) Plaintiff, on the

other hand, recalls that during this meeting Mr. Purdue informed

her that she was suspended without pay and must use her sick leave

going forward. (Doc. #62-1, p. 4, ¶ 5.) Plaintiff was provided no

documentation of her suspension. (Id.)

After this meeting, Plaintiff signed a letter dated May 20,

2019, addressed to Mr. Perdue. (Doc. #40-1, p. 6.) The letter

stated it was to “confirm our meeting of May 20, 2019” with Yvonne

Stewart. (Id.) The letter stated that Mr. Perdue had “suspended”6

Plaintiff without pay, and she would have to use her sick time to

make up the hours. (Id.) The letter further stated that Plaintiff

had been informed that she could not return to work until the

School District’s workers’ compensation adjuster, Magda Perez or

Cathy Richards, spoke with Plaintiff’s attorney regarding her

employment situation. (Id.) The letter went on to state that

Plaintiff had not heard back from the School District about her

employment status; that her treating doctors had released her to

regular duty; and she was able and willing to return to work. (Id.)

5 During this meeting (or at any other time), Plaintiff did

not advise her supervisor(s) that she wanted to remain working in

her light-duty assignment(s) if she could not return to her former

school bus operator position. (Doc. #59-1, p. 19.)

6 Mr. Perdue maintains that Plaintiff was never suspended

during the meeting or anytime thereafter. (Doc. #63-1, p. 2.) For

summary judgment purposes, this factual dispute is resolved in

favor of Plaintiff.

Plaintiff concluded by stating she believed the action violated

School Board policy and was “discriminatory.” (Id.)

In or around the first week of August 2019, the School

District’s Routes Supervisor, Reina Estevez, went to Plaintiff’s

home and left a note with Plaintiff’s adult son (who lives with

Plaintiff). (Doc. #59-1, p. 24.) The note stated that Ms. Estevez

had been trying to contact Plaintiff by phone, but the phone number

on file for Plaintiff was incorrect. (Id.) The note requested that

Plaintiff call Ms. Estevez or “Mr. Lloyd,” and left their phone

numbers.7 (Doc. #62-1, p. 5.)

Plaintiff did not participate in the School District’s August

2019 job bidding process, during which school bus routes for the

coming school year were assigned to school bus operators. (Doc.

#59-1, pp. 20, 50.) According to Plaintiff, supervisor Yvonne

Steward informed Plaintiff she could not attend the bidding process

because she was unable to drive a school bus after failing to pass

the required training. (Id., pp. 21-22.)

By certified letter dated August 7, 2019, Roger Lloyd, the

School District’s Director of Transportation Services, advised

Plaintiff that she had failed to report to work since May 30, 2019.

(Doc. #40-1, pp. 8, 10; Doc. #62-1, p. 5.) The letter further

stated that Mr. Lloyd would be recommending to the Superintendent

7 There is no record evidence showing that Plaintiff contacted

Ms. Estevez or Mr. Lloyd.

(Gregor K. Adkins) that Plaintiff’s employment contract as a school

bus operator for the 2019-2020 school year not be renewed due to

“abandonment of position” effective August 7, 2019. (Doc. #40-1,

p. 8.) The summary judgment record does not contain Superintendent

Adkins’ actual decision or a termination decision.

Plaintiff signed a certified letter dated August 7, 2019, to

the U.S. Equal Employment Opportunity Commission (EEOC) that

alleged that the School District failed to provide her with

Workers’ Compensation benefits, and refused to provide her with

any work or place her on a work schedule. (Doc. #40-1, pp. 14-15.)

On August 10, 2019, Plaintiff emailed a letter to the

Superintendent stating that the decision not to renew her position

as a bus driver effective August 7, 2019, was an “unfair decision”

and that she requested an appeal to be heard by an Administrative

Law Judge. (Doc. #40-1, p. 10.) The Superintendent’s office

acknowledged the email, stating it had been referred to the

appropriate staff personnel. (Id., p. 12.)

On July 14, 2019, the EEOC issued a right to sue letter.

(Id., p. 2.)

On August 31, 2019, Plaintiff received a Cobra Continuation

Enrollment Form. This Form stated that the qualifying event was

Plaintiff’s “Termination of Employment” and the qualifying event

date was “08/31/2019”. (Doc. #40-1, p. 20.)

On January 21, 2020, Plaintiff filed a Charge of

Discrimination with the EEOC asserting claims of discrimination

and retaliation in violation of the ADA. (Doc. #40-1, p. 22.)

III.

In Count V and Count VI of the Second Amended Complaint,

Plaintiff brings retaliation claims under the ADA8 and FRCA,

respectively. (Doc. #40, ¶¶ 86-95, 96-105.) The Court evaluates

retaliation claims brought under the ADA under the same framework

as applied to Title VII actions, Todd v. Fayette Cnty. Sch. Dist.,

998 F.3d 1203, 1219 (11th Cir. 2021), and evaluates FCRA

retaliation claims under the same framework as ADA claims. Russell

v. City of Tampa, 737 F. App'x 922, 923 (11th Cir. 2018). Thus,

federal case law interpreting the ADA and Title VII is also

applicable to FCRA claims. Matamoros v. Broward Sheriff's Off., 2

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

analyze Plaintiff’s ADA and FCRA retaliation claims together.

Russell, 737 F. App'x at 923.

The ADA’s anti-retaliation provision makes it unlawful for an

employer to “discriminate against any individual because such

individual has opposed an unlawful act under the ADA, or because

such individual made a charge, testified, assisted, or

8 Because the relevant events took place after the ADA

Amendments Act of 2008 ("ADAAA") became effective on January 1,

2009, the post-ADAAA version of the ADA governs. Mazzeo v. Color

Resolutions Int'l, LLC, 746 F.3d 1264, 1267 (11th Cir. 2014).

participated in any manner in an investigation, proceeding, or

hearing under those statutes.” 42 U.S.C. § 12203(a). ADA

retaliation claims based on circumstantial evidence, as here, are

analyzed under the burden-shifting framework established in

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

Salvation Army, 897 F.3d 1320, 1328 (11th Cir. 2018). Under the

McDonnell Douglas framework, “[t]o avoid summary judgment, a

plaintiff must establish a prima facie case of retaliation.” Farley

v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1999).

To establish a prima facie case of retaliation under the FCRA and

the ADA, Plaintiff must demonstrate that: "(1) she engaged in

conduct protected by the ADA; (2) she suffered an adverse

employment action; and (3) that a causal connection exists between

the two." Batson, 897 F.3d at 1326. See also Ring v. Boca Ciega

Yacht Club Inc., 4 F.4th 1149, 1163 (11th Cir. 2021) (same);

Blizzard v. Appliance Direct, Inc., 16 So. 3d 922, 926 (Fla. 5th

DCA 2009) (setting forth same elements to establish a prima facie

case of retaliation under FCRA).

If Plaintiff establishes a prima facie case, "the burden

shifts to the employer to articulate a nondiscriminatory reason

for the adverse action." Batson, 897 F.3d at 1329; Ring, 4 F.4th

at 1163. If this is done, the burden shifts back to Plaintiff to

show that the asserted reason is merely a pretext for

discrimination because the reason is false and discrimination was

the real reason. Ring, 4 F.4th at 1263; Brooks v. Cnty. Com'n of

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

2006)(citations omitted). A plaintiff can show pretext by

demonstrating “such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in [the

employer's] proffered legitimate reasons for its action that a

reasonable factfinder could find them unworthy of credence.”

Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344,

1348 (11th Cir. 2007) (quotation marks omitted).

IV.

The School District argues that it is entitled to summary

judgment on both counts because Plaintiff cannot establish the

third element of a prima facie case of retaliation. (Doc. #59, p.

10; Doc. #63, p. 5.) Alternatively, even if Plaintiff could

establish a prima facie case, the School District argues that it

chose not to reappoint Plaintiff to her position for the 2019-2020

school year for legitimate, non-retaliatory reasons. (Doc. #59, p.

9.)

A. Plaintiff’s Prima Facie Case

The Second Amended Complaint alleges that Plaintiff engaged

in protected activity by objecting to disability discrimination,

which proximately caused Defendant to retaliate against Plaintiff

by changing her work conditions, disciplining her, and terminating

her employment. (Doc. #40, ¶¶ 87-89, 97-99.) Specifically,

Plaintiff alleges that in a May 20, 2019, letter she complained to

Mr. Perdue that she was “suspended without pay,” which Plaintiff

believed was in violation of school board policy and was

“discriminatory.” (Id., ¶¶ 23, 28; Doc. #40-1, p. 6.) Thereafter,

Mr. Lloyd informed Plaintiff (via certified mail) that he was

recommending to the Superintendent that her employment contract

for the 2019-2020 school year not be renewed, effective August 7,

2019. (Doc. #40, ¶ 28; Doc. #40-1, p. 8.)

For purposes of summary judgment, Defendant challenges only

the third element of Plaintiff’s prima facie case. Defendant

argues that Plaintiff has offered no facts showing that any alleged

adverse employment actions, i.e., her “suspension” or the non-

renewal of an employment contract, were causally connected to the

protected conduct, i.e., Plaintiff’s May 20, 2019 letter to Mr.

Perdue. (Doc. #59, p. 10.) In response, Plaintiff argues that she

has presented sufficient evidence to create a genuine dispute of

material fact on this issue. (Doc. #62, pp. 5-6.)

“To establish a ‘causal link’ for purposes of the third

element, a plaintiff need only demonstrate ‘that the protected

activity and the adverse action were not wholly unrelated.’”

Matamoros, 2 F.4th at 1336 (quoting Shotz v. City of Plantation,

344 F.3d 1161, 1180 n.30 (11th Cir. 2003)) (emphasis omitted).

This element is to be broadly construed. Pennington v. City of

Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). “A plaintiff

makes this showing if she provides sufficient evidence that the

decisionmaker became aware of the protected conduct and that there

was a close temporal proximity between this awareness and the

adverse action.” Id. See also Hughes v. Wal-Mart Stores East, LP,

846 F. App'x 854, 858 (11th Cir. 2021). Additionally, “causation

may be established when a decisionmaker followed a biased non-

decisionmaker's recommendation without independently

investigating the basis for the complaint. In such a case, the

recommender is using the decisionmaker as a conduit, or a ‘cat's

paw,’ to give effect to the recommender's own discriminatory

animus.” Matamoros, 2 F.4th at 1336 (citations omitted).

Plaintiff asserts that two adverse actions were causally

linked to the protected May 20, 2019 letter to Mr. Perdue. The

Court discusses each in turn.

(1) May 20, 2019 Suspension Without Pay

For purposes of the summary judgment motion, Defendant

assumes (although it denies) that Plaintiff was “suspended” from

her employment. Defendant argues there can be no causal connection

between Plaintiff’s May 20, 2019 letter and her alleged

“suspension” because Plaintiff sent her letter in response to and

after her suspension. (Doc. #59, p. 10.) The Court agrees.

To establish causation, "[a]t a minimum, [the employee] must

show that the adverse act followed the protected conduct."

Cardelle v. Miami Beach FOP, 593 F. App'x 898, 903 (11th Cir. 2014)

(quoting Griffin v. GTE Fla., Inc., 182 F.3d 1279, 1284 (11th Cir.

1999)(emphasis added)). Viewed in the light most favorable to

Plaintiff, the evidence establishes that Mr. Perdue told Plaintiff

she was suspended before Plaintiff sent the letter. Thus, Plaintiff

cannot show that Mr. Purdue (or any other School District employee)

“suspended” her on May 20th in retaliation for a letter which had

not yet been written. See Drago v. Jenne, 453 F.3d 1301, 1308

(11th Cir. 2005) ("[I]n a retaliation case, when an employer

contemplates an adverse employment action before an employee

engages in protected activity, temporal proximity between the

protected activity and the subsequent adverse employment action

does not suffice to show causation.")(emphasis added). See also

Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th

Cir. 2000) (“A decision maker cannot have been motivated to

retaliate by something unknown to him.”). Because no reasonable

juror could find any causal connection between Plaintiff’s

“suspension” and this subsequent protected activity, summary

judgment is granted as to this portion of Plaintiff’s retaliation

claims.

(2) Non-Renewal of Plaintiff’s Employment Contract

Defendant also argues that Plaintiff cannot prove causation

between her May 20, 2019 letter and the subsequent non-renewal of

her employment contract for the 2019-2020 school year because (a)

there is no evidence showing that the decisionmaker(s) were aware

of any protected activity, and (b) there are two intervening

factors which preclude causation. (Doc. #59, pp. 10-12; Doc. #63,

pp. 6-7.) The Court finds neither argument is persuasive.

(a) Decisionmaker’s Awareness of Protected Activity

It is undisputed that on August 7, 2019, Mr. Lloyd wrote that

he would recommend to Superintendent Adkins that Plaintiff’s

employment contract not be renewed based on Plaintiff’s

“abandonment” of her employment. While the parties have not

identified an actual non-renewal letter from Superintendent

Adkins, the COBRA notice states that Plaintiff’s employment was

terminated on August 31, 2019. The summary judgment record

establishes that before this termination Plaintiff had notified

the Superintendent in writing (on August 10, 2019) that she was

appealing Mr. Lloyd’s “unfair” recommendation for termination

(Doc. #40-1, p. 10), and that the Superintendent’s office had

responded that Plaintiff’s email was forwarded to the appropriate

staff assigned to handle such issues. (Id., p. 12.) A reasonable

jury could conclude that Superintendent Adkins was actually aware

of Plaintiff’s prior protected activity. See Matamoros, 2 F.4th

at 1336. Additionally, the summary judgment evidence may support

a “cat’s paw” theory of liability. See id. The Court therefore

finds that Plaintiff has shown, for summary judgment purposes, an

awareness by decisionmaker(s) sufficient to support a causal link.

The burden of causation in an ADA retaliation claim can also

be met by showing close temporal proximity between the statutorily

protected activity and the adverse action. Thomas v. Cooper

Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). However, if

there is a delay of more than three months between the protected

activity and the adverse employment action, then the temporal

proximity is not close enough, and the plaintiff must offer some

other evidence tending to show causation. Id. See also Higdon v.

Jackson, 393 F.3d 1211, 1221 (11th Cir. 2004)(“By itself, the three

month period ... does not allow a reasonable inference of a causal

relation between the protected expression and the adverse

action.”).

Here, there is a lapse of three or more months between

Plaintiff’s protected activity on May 20, 2019 and her August 31,

2019 termination. The Court nevertheless finds that there is such

“other evidence” in this case from which a reasonable jury could

conclude that the evidence tends to show causation. Plaintiff

asserts that she attempted to report to work repeatedly during the

time period between when she was released to regular duty and her

termination, but was turned away by Mr. Purdue. (Doc. #59-1, p.

20.) Plaintiff further asserts that the day before the school route

bidding process was to begin, after engaging in protected activity,

she went to Yvonne Steward, who told Plaintiff that she could not

participate in the bidding process because she was unable to drive

a bus. Defendant has taken the position that Plaintiff would not

be allowed to drive a school bus for the School District because

she failed to complete eight hours of the “behind-the-wheel”

training as mandated by Florida state law. Ms. Ferris, however,

stated in her affidavit that she had conducted several tests for

operating a school bus where employees failed the physical portions

of the tests, but were allowed by other School District supervisors

to retake the test. (Doc. #62-1, p. 14 ¶ 11.) The School District

never offered Plaintiff another opportunity to take her “behind-

the-wheel” training. A reasonable jury could conclude that the

School District’s failure to provide a second opportunity to take

mandatory tests was merely an attempt by the School District to

categorize Plaintiff as noncompliant with state-issued

regulations, thus providing a pretextual reason for her

termination. See Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453,

1455 (11th Cir. 1998) (listing a series of adverse events that

occurred after plaintiff filed EEOC charge that qualified as “other

evidence”.). Accordingly, whether the “other evidence” is

sufficient to establish causation is a matter for the trier of

fact.

(b) Whether Intervening Factors Preclude Causation

Defendant asserts that any inference of retaliation created

by the temporal proximity between Plaintiff’s protected activity

and her termination is dispelled by intervening factors, i.e.,

other reasons for the adverse action arising after the protected

activity. (Doc. #59, pp. 10-11.) More specifically, Defendant

argues that Plaintiff admitted she failed to complete mandatory

“behind-the-wheel” training, and did not attend the bus route

bidding process after Defendant repeatedly attempted to contact

Plaintiff without success. (Id., p. 11.) Defendant emphasizes that

it was only after Plaintiff failed to attend the school bus route

bidding that Mr. Lloyd recommended the non-renewal of Plaintiff’s

employment contract for “abandonment” of her position. (Id.)

Plaintiff, on the other hand, asserts that while she did not

initially complete the mandatory “behind-the-wheel” training, she

was never given another opportunity by the School District to do

so. As discussed above, Ms. Ferris stated that she had conducted

several tests for operating a school bus where employees failed

the physical portions of the tests, but were allowed by other

School District supervisors to retake the test. Plaintiff

maintains that she did not attend the bidding process because a

School District employee told Plaintiff she could not participate

since she had not completed the mandatory training. As to the

note left by Ms. Estevez with Plaintiff’s son, the import of the

note is not apparent as it only asked Plaintiff to call Mr. Lloyd

or Ms. Estevez.

Although "[i]ntervening acts of misconduct can break any

causal link between the protected conduct and the adverse

employment action", Henderson v. FedEx Express, 442 F. App'x 502,

506 (11th Cir. 2011), there are material facts in dispute about

whether Plaintiff failed to comply with testing standards or was

prohibited by the School District from completing mandatory

testing, and whether Plaintiff failed to engage in the bidding

process or was prevented by the School District from doing so,

that preclude the Court from finding on summary judgment that

Plaintiff’s actions severed any causal connection. Cf. Hankins v.

AirTran Airways, Inc., 237 F. App'x 513, 520-21 (11th Cir. 2007)

(plaintiff's violation of the airline’s crew member handbook after

a discrimination complaint severed any causal connection between

protected act and termination). Because a reasonable jury could

find that Plaintiff did not engage in any misconduct sufficient to

break the causal chain, Defendant is not entitled to summary

judgment as to Plaintiff’s prima facie case of retaliation.

(3) Legitimate Non-Retaliatory Reason(s) For Termination

If Plaintiff makes out a prima facie case under the burden-

shifting framework, the employer must articulate a legitimate,

non-discriminatory reason for the adverse action. Batson, 897 F.3d

at 1329. Defendant's burden to provide a legitimate reason for its

actions is "a low bar to hurdle." Flowers v. Troup Cnty., Ga.,

Sch. Dist., 803 F.3d 1327, 1336 (11th Cir. 2015). An "employer's

burden is merely one of production; it 'need not persuade the court

that it was actually motivated by the proffered reasons.'" Chapman

v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (citation

omitted). See also Cooper v. Jefferson Cnty. Coroner & Med. Exam'r

Off., 861 F. App'x 753, 757 (11th Cir. 2021). Rather, the reason

must simply be "one that might motivate a reasonable employer."

Chapman, 229 F.3d at 1030.

Defendant argues that even if Plaintiff has established a

prima facie case of retaliation, the School District is still

entitled to summary judgment because it decided not to renew

Plaintiff’s contract for legitimate, non-discriminatory and non-

retaliatory reasons. (Doc. #59, p. 12.) Defendant asserts that

Plaintiff’s failure to meet the minimum job requirements for school

bus operators, i.e., completion of the Florida State-mandated

“behind-the-wheel” training and the dexterity test, especially

when combined with Plaintiff’s failure to attend the school bus

routes bidding process, are non-discriminatory reasons to not

reappoint Plaintiff to a school bus operator position. (Id., pp.

13-14.)

The School District’s reasons are adequate to satisfy its

burden of production at the summary judgment stage. See Vessels v.

Atlanta Indep. Sch. Sys., 408 F.3d 763, 769-70 (11th Cir. 2005)

(employer's burden is exceedingly light and is satisfied as long

as the employer articulates a clear and reasonable non-

discriminatory basis for its actions). Defendant has provided

sufficient evidence that Plaintiff did not complete mandatory

training that is required before she can operate a school bus on

behalf of the School District. “Terminating an individual's

employment for failing to fulfill a requirement of the job . . .

is a legitimate reason to fire someone.” Callaway v. Lee Mem'l

Health Sys., No. 2:19-cv-745-SPC-MRM, 2022 WL 93534, 2022 U.S.

Dist. LEXIS 4576, at *17 (M.D. Fla. Jan. 10, 2022). Every employer

has the "right to interpret its rules as it chooses, and to make

determinations as it sees fit under those rules." Nix v. WLCY

Radio/Rahall Commc'ns, 738 F.2d 1181, 1187 (11th Cir. 1984). An

"employer may fire an employee for a good reason, a bad reason, a

reason based on erroneous facts, or for no reason at all, as long

as its action is not for a discriminatory (or retaliatory) reason."

Id.

(4) Whether Defendant’s Proffered Reason Was Pretext

Upon Defendant providing a legitimate, non-discriminatory

reason, the burden again shifts back to Plaintiff to show evidence

sufficient to permit “a reasonable factfinder to conclude that the

reasons given by the employer were not the real reasons for the

adverse employment decision.” Batson, 897 F.3d at 1329 (citation

omitted.) In other words, Plaintiff must "cast sufficient doubt

on the defendant's proffered nondiscriminatory reasons to permit

a reasonable fact finder to conclude that the employer's proffered

legitimate reasons were not what actually motivated its conduct."

Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)

(citations omitted). “A reason is not pretext for retaliation

unless it is shown both that the reason was false, and that

retaliation was the real reason.” Gogel v. Kia Motors Mfg. of Ga.,

Inc., 967 F.3d 1121, 1136 (11th Cir. 2020) (quotations, emphases,

and brackets omitted).

A review of the record reveals evidence that would allow a

fact finder to potentially disbelieve the School District’s

proffered explanation for its actions. The reasons set forth

previously in Plaintiff's prima facie case also present genuine

issues of fact with respect to whether Defendant’s reasons for

terminating Plaintiff were pretext for retaliation.

For example, Plaintiff admits she did not complete the

“behind-the-wheel” training and was not given another opportunity

to complete the testing, but there is evidence showing that on

other occassions the School District permitted employees to retake

the physical portion of the test/training. Defendant argues that

Plaintiff must have also completed the mandatory dexterity test,

however, there is no record evidence that she was provided such an

opportunity. Defendant merely states that Plaintiff used only one

hand to turn corners and used her right hand to control directional

signals located on the left of the bus steering wheel during her

“behind-the-wheel” training with Ms. Anna Basye, which does not

meet the requirements of a dexterity test. (Doc. #59, pp. 13-14.)

Defendant also argues that Plaintiff failed to attend the bidding

process to obtain a school bus route. As discussed above,

Plaintiff was told by Ms. Steward not to attend the bidding event

because she could not drive a school bus after failing to complete

the required training. A reasonable jury could find there are

"weaknesses, implausibilities, inconsistencies, incoherencies or

contradictions” in Defendant’s proffered legitimate reasons for

its actions and that they are “unworthy of credence.” Springer,

509 F.3d at 1348. Summary judgment is therefore denied as to this

portion of Plaintiff’s retaliation claims.

Accordingly, it is now

ORDERED :

1. Defendant’s Motion For Summary Judgment (Doc. #59) is

GRANTED IN PART AND DENIED IN PART.

2. The motion is GRANTED as to Counts V and VI to the extent

that these counts are based on the claim of retaliation

based on Plaintiff’s “suspension”. The motion is otherwise

DENIED.

DONE AND ORDERED at Fort Myers, Florida, this 20th day of

June, 2023.

0 x

off le hy dE, Ah Look

JGHN E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies: Counsel of record

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