Israel v. City of Tampa

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

AZARIAH ISRAEL,

Plaintiff,

v. Case No: 8:22-cv-79-CEH-AEP

CITY OF TAMPA,

Defendant.

ORDER

This cause comes before the Court on Defendant City of Tampa’s Motion for

Summary Judgment (Doc. 37), Plaintiff Azariah Israel’s response in opposition (Doc.

44), and Defendant’s reply (Doc. 49). In this employment action, Plaintiff alleges that

he was discriminated and retaliated against in violation of the Americans with

Disabilities Act (“ADA”). Defendant seeks summary judgment as to both claims.

Upon review and consideration, and being fully advised in the premises, the

Court will grant the motion for summary judgment.

I. FACTS1

A. Plaintiff’s History with the Police Department and Medical Conditions

Plaintiff served as a police officer with the Tampa Police Department (“TPD”)

between 2009 and 2021. An arbitrator who reviewed his service history described his

1 The Court has determined the facts, which are undisputed unless otherwise noted, based on

the parties’ submissions, including declarations and exhibits, as well as the Stipulation of

Agreed Facts (Doc. 48).

record during “the great part of his employment as a Tampa Police Officer” as

“enviable.” Doc. 37-2 at 40. He received consistently positive performance

evaluations until 2020, indicating that he “was a very satisfactory or better police

officer throughout his tenure.” Id. at 36-39.

At some point during his time with the TPD, Plaintiff was diagnosed with

depression and symptoms of post-traumatic stress disorder. Doc. 37-4 at 19-24, 93-97.

His conditions routinely caused him to have trouble sleeping, which interfered with

his ability to concentrate during the day. Doc. 12 ¶¶ 19-21. Plaintiff received regular

mental health treatment, as well as other medical treatment, at a Veterans Health

Administration hospital run by the Department of Veterans Affairs (“VA”). Doc. 37-

4 at 9-14. In December 2019, his treatment provider applied for intermittent leave

through the Family Medical Leave Act (“FMLA”) on his behalf, explaining that it

would be medically necessary for Plaintiff to be absent from work once every two

weeks due to appointments or adjustments to his medication. Doc. 37-6. Defendant

approved the FMLA request. Doc. 37-5. Plaintiff’s supervisors were aware that he

was approved for intermittent FMLA leave, but they did not know the medical

condition on which it was based. See Doc. 37 at 5; Doc. 12 ¶ 26.

In February 2020, Plaintiff received a new squad assignment in a different

district than the one in which he had spent most of his career. See Doc. 37 at 4. His

immediate supervisor, Sergeant Robin Polk, stated that she noticed Plaintiff exhibit a

variety of what she described as “not typical behaviors” beginning in early March. Id.;

Doc. 37-7. The behaviors included going outside of the chain of command on more

than one occasion. Id.

In late May of 2020, the city was placed in a state of emergency because of civil

unrest in the aftermath of George Floyd’s death. Doc. 37 at 8. As a result, Sergeant

Polk ordered her entire squad to report for duty at 10:00 AM on May 31. Doc. 37-10

at 2. Plaintiff initially told her he would report at 2:00 PM due to a childcare issue,

but he did not arrive at that time or communicate a change to her. Id. When she

contacted him at about 3:00 PM, he responded that he would not have childcare until

the following day. Id. The next day, two minutes into his scheduled shift, he notified

Sergeant Polk that he would be taking FMLA leave. Id.; see also Doc. 37-9. The TPD

initiated an investigation into Plaintiff’s May 31 and June 1 actions, which it believed

constituted policy violations. Doc. 37-14 at 2. The investigation had not concluded by

August 2020. Id. During the investigation, Plaintiff’s treatment provider submitted a

modified FMLA request stating that the frequency of his intermittent leave would need

to be increased to four days every two weeks, “[d]ue to increased severity of

symptoms.” Doc. 37-6 at 5.

B. August 2020 Incident

Plaintiff did not work during most of July 2020 because of planned travel and

COVID-19 quarantine requirements. Doc. 37-8. Although he was scheduled to return

to work on August 5, 2020, he notified Polk the week before that he would be taking

FMLA leave that day. Doc. 37-7 at 4.

On the evening of August 4, turning into the early morning of August 5, Plaintiff

and his family returned home from a trip to the Virgin Islands. Doc. 37-4 at 138. Soon

after they got home, Plaintiff’s wife called the TPD to report a domestic dispute. Id.;

Doc. 37-24 at 23. Plaintiff told responding officers that he refused to give his wife the

keys to the car she normally used because he intended to “put a tracker on it for the

safety of his children.” Id. at 24. He explained in his deposition that she had previously

tried to abscond with the children when they were having marital problems. Doc. 37-

4 at 140-141. His wife did not report any physical violence, and both he and his wife

told the officers that they intended to divorce. Doc. 37-24 at 23-24. The police

determined that no criminal acts were committed. Doc. 37-14 at 1-2. Plaintiff then left

his home for the night. Id. at 2.

The following afternoon, August 5, TPD responded to a second call at Plaintiff’s

home. Doc. 37-24 at 26. Plaintiff’s wife reported that he had physically abused one of

their sons through excessive discipline while they were on vacation. Id. at 28. Plaintiff

denied the allegation. Id. at 32-33. The child abuse investigation was closed on August

13, with the investigator noting that he could not “establish a criminal offense has

occurred.” Doc. 37-24 at 35.

The captain of Plaintiff’s unit, Eric DeFelice, was notified on August 5 that

there had been a second call to Plaintiff’s residence in less than 24 hours. Doc. 37-14

at 3. DeFelice explained that he decided to go to Plaintiff’s home while the

investigating officers were there, to “check on [Plaintiff’s] wellbeing”; the parties agree

he was not acting in an investigatory capacity. Id.; Doc. 48 at 1. DeFelice and Plaintiff

spoke for about two hours. Doc. 37-14 at 3. Plaintiff informed DeFelice that he was

going through marital problems and that he suffered from PTSD. Id.; Doc. 48 at 1.2

DeFelice wrote down his observations from their conversation in a detailed

memorandum dated August 6, 2020. Doc. 37-14 at 3. He wrote that Plaintiff was:

very emotional, exhibiting signs of severe stress and anxiety. He

was fidgety, could not sit still and was making very animated hand

gestures. He had numerous angry outbursts, was talking to

himself, and also was incoherently mumbling.

When Ofc Israel was questioned by officers he had difficulty

focusing, would forget the question that was asked and would

continue to discuss matters even after the interviewers moved on.

On several occasions I observed Ofc Israel continuously bang his

open hands against his head while talking to himself. He called

himself stupid and had quiet conversations with himself.

Id. DeFelice decided to relieve him from duty and place him on paid administrative

leave. Id.; Doc. 48 at 2. The administrative leave notification stated that it was “not a

disciplinary measure, but based on your recent involvement as a subject in an

investigation.” Doc. 37-12.

According to DeFelice, Plaintiff agreed to voluntarily turn over his personal

firearms for safekeeping once DeFelice placed him on administrative leave. Doc. 37-

14 at 4; see also Doc. 37-24 at 26. Plaintiff then left his home for the night. Doc. 37-14

at 4.

2 Although the Complaint alleged that Plaintiff’s wife informed DeFelice about his diagnosis,

Doc. 12 ¶ 26, Plaintiff has stipulated that he informed DeFelice that he suffered from PTSD.

Doc. 48 at 1.

Polk learned about Plaintiff’s administrative leave during the evening of August

5. Doc. 37-7 at 4. She reached out to Plaintiff by text message, resulting in the

following exchange:

Polk: FYI—heard you have had a day. Don’t worry about work

and if u need resources feel free to reach out. I have both civilian

and police resources ready to help fellow officers and

veterans…take care of yourself and let me know if we can assist in

any way.

Israel: I just don’t know what to say after today…thanks for letting

me know

Polk: Ur well being is important to all of us. We are family as far

as I am concerned and we all need an outlet :)

Israel (11:45 PM): Sarge, I feel like ima do something stupid…I

really need to go back to my family in Jacksonville…I need to be

with my mom and my brothers…I can’t stay here…not good to be

here…I don’t want to be police no more….

Polk (5:03 AM): Azariah, just waking up to this text. Are you ok?

Israel (9:35 AM): I’ll be ok, thx

Doc. 37-13 at 2-5 (ellipses in original).

Polk and DeFelice met Plaintiff at a doctor’s office the following morning,

August 6. Doc. 37-7 at 4-5. According to Polk, Plaintiff told her he did not remember

sending the 11:45 PM text message because he had been drinking. Id. at 5. She also

said that he “started hitting his head with his hand,” “saying he was stupid for taking

his wife back,” and seemed to have difficulty finding words and completing simple

tasks. Id. DeFelice suggested to Plaintiff that he allow himself to be evaluated for

voluntary commitment, and he agreed. Id. The three of them traveled to the VA

hospital for the evaluation. Id. Plaintiff was released from the hospital later that day.

Doc. 37-14 at 4. He met with Polk and DeFelice again on August 7 and appeared to

be in a much calmer state of mind. Id. at 5.

C. Administrative Actions and Procedural History

After taking custody of his personal firearms on August 5, Defendant advocated

to prevent Plaintiff from regaining access to firearms by filing a petition for a risk

protection order. Doc. 37-24 at 3. After a hearing on August 31, 2020, the petition

was denied on September 17. Id. at 3-5. The court found there was “insufficient

evidence that [Plaintiff] poses a significant danger to himself or others by owning or

possessing a firearm,” and that a temporary risk protection order had only been issued

“due to isolated marital issues.” Id. at 3.

Plaintiff remained on paid administrative leave for the remainder of his

employment with the TPD. See Doc. 37-2 at 17. He was ordered to participate in a

fitness for duty examination before he could return to active duty. See Doc. 37-4 at

168-69; Doc. 12 ¶ 30. Plaintiff was referred to Dr. Stephen O’Neal for the

examination. Doc. 37-8 at ¶ 4. Soon afterward, Dr. O’Neal informed Defendant that

he could not declare Plaintiff fit for duty without seeing his treatment records from the

VA, but that Plaintiff had refused to sign a release form authorizing him to access

them. Id. In a meeting on September 17, 2020, DeFelice ordered Plaintiff to sign the

release. Id. Plaintiff did so, but revoked it the next day by contacting the VA. Id.; Doc.

48 at 2. Defendant states that it did not learn about the revocation until much later.

Id.; Doc. 49 at 7-8.

Plaintiff requested a different examiner, and in early December he was referred,

with his consent, to Dr. Richard Cipriano. Doc. 37-8 ¶¶ 6-7. On December 16, 2020,

Dr. Cipriano informed Defendant that Plaintiff had refused to release his VA records,

and that he could not find him fit for duty until he did so. Id. ¶ 8; Doc. 37-19 at 2.

Plaintiff remained on paid administrative leave.

Plaintiff filed a charge of discrimination against Defendant with the Equal

Employment Opportunity Commission (“EEOC”) and the Florida Commission on

Human Rights on February 23, 2021. Doc. 37-21. He alleged discrimination and

retaliation based on his race, religion, and disability. Id.

On April 14, 2021, a meeting occurred at the request of Plaintiff’s union

attorney, who asked that Plaintiff be given a final opportunity to comply with the order

to sign the release for his VA records. Doc. 37-8 ¶ 9. At the meeting, Tampa Police

Chief Brian Dugan ordered Plaintiff to execute the release. Id. Plaintiff “said he would

not comply.” Id.; see also Doc. 48 at 2. Plaintiff was terminated on April 28, 2021.

Doc. 37-22. In a Notice of Disciplinary Action dated April 21, 2021, Defendant

informed Plaintiff that he was being terminated for disobeying the orders to complete

the fitness for duty evaluation, which constituted insubordination. Id.

Plaintiff initiated this action on December 8, 2021, and the case was

subsequently removed to this Court. Docs. 1, 1-1. He alleges that Defendant

discriminated and retaliated against him based on his disability in violation of the

ADA. Doc. 12. In Count I, he alleges that Defendant discriminated against him by,

immediately after learning of his disability on August 5, placing him on administrative

leave, subjecting him to a risk protection hearing, forcing him to undergo a fitness for

duty evaluation, and requesting his medical records. Id. ¶¶ 50-57. In Count II, he

alleges that he was terminated in retaliation for filing the EEOC charge two months

earlier. Id. ¶¶ 59-65.3

Defendant now moves for summary judgment as to both counts.

II. LEGAL STANDARD

Summary judgment is appropriate only when the court is satisfied that “there is

no genuine issue of material fact and that the moving party is entitled to judgment as

a matter of law,” after reviewing the “pleadings, the discovery and disclosure materials

on file, and any affidavits[.]” Fed. R. Civ. P. 56(c)(2). In determining whether a

genuine issue of material fact exists, the Court must consider all the evidence in the

light most favorable to the nonmoving party. Shotz v. City of Plantation, Fla., 344 F.3d

1161, 1164 (11th Cir. 2003). Issues of fact are “genuine only if a reasonable jury,

3 In addition to initiating this action, Plaintiff also filed two grievances through the procedures

provided by his union contract. The first, filed on December 17, 2021, argued that Defendant

had no right to require the disclosure of his medical records as part of a fitness for duty

evaluation. Doc. 37-20. He filed a second grievance after he was terminated, contending that

he had complied with the order to complete a fitness for duty evaluation, and that the

requirement to disclose his VA records was outside the scope of the evaluation and his union

contract. Doc. 37-33. Both grievances were addressed in the same arbitration hearing in May

2022. Doc. 37-2. In an Award and Opinion dated September 27, 2022, the arbitrator

concluded that Defendant did not violate the union contract by ordering Plaintiff to sign the

VA release as part of a fitness for duty evaluation, which it found was justified. Id. at 41. He

also determined that Plaintiff should be given another opportunity to undergo the evaluation,

which would include disclosing his VA records, and that he should be reinstated without back

pay if he agreed to do so. Id. Plaintiff has declined to do so.

considering the evidence presented, could find for the nonmoving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A fact is “material” if it may affect the

outcome of the suit under governing law. Id.

The moving party bears the initial burden of stating the basis for its motion and

identifying those portions of the record demonstrating the absence of genuine issues of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986); Hickson Corp. v. N.

Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004). That burden can be discharged

if the moving party can show the court that there is “an absence of evidence to support

the nonmoving party’s case.” Celotex, 477 U.S. at 325. “Only when that burden has

been met does the burden shift to the non-moving party.” Clark v. Coats & Clark, Inc.,

929 F.2d 604, 608 (11th Cir. 1991).

“[I]n order to survive summary judgment, the nonmoving party must set forth

specific facts showing there is a genuine issue for trial.” Johnson v. New Destiny Christian

Ctr. Church, Inc., 826 F. App’x 766, 770 (11th Cir. 2020) (citing Anderson, 477 U.S. at

249-50). “[U]nsupported ‘conclusory allegations’ do not suffice.” Middlebrooks v. Sacor

Fin., Inc., 775 F. App'x 594, 596 (11th Cir. 2019). Likewise, “[a] ‘mere existence of a

scintilla of evidence’ cannot suffice to create a genuine issue of material fact.” Johnson,

826 F. App’x at 770 (quoting Anderson, 477 U.S. at 252).

III. DISCUSSION

A. ADA Discrimination (Count I)

The ADA prohibits discrimination in employment “against a qualified

individual on the basis of disability.” 42 U.S.C. § 12112(a). A plaintiff alleging

disability discrimination must demonstrate that: (1) he is disabled; (2) he was a

“qualified individual” when he was terminated, and (3) he was discriminated against

on account of his disability. Frazier-White v. Gee, 818 F.3d 1249, 1255 (11th Cir. 2016)

(citation omitted).

Where a plaintiff relies on circumstantial evidence of discrimination, rather

than direct evidence, courts apply the McDonnell-Douglas burden-shifting framework.

See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Cleveland v. Home Shopping

Network, Inc., 369 F.3d 1189, 1193 (11th Cir. 2004). First, the plaintiff must establish

a prima facie case of disability discrimination through the three elements above. Id.

The burden then shifts to the employer “to articulate a legitimate, non-discriminatory

reason” for the adverse employment action. Id. The employer’s burden is “exceedingly

light.” Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1142 (11th Cir. 1983). If the

employer meets its burden, the plaintiff will not survive summary judgment unless he

presents sufficient evidence to create an issue of fact that the articulated reason was a

pretext for discrimination. Cleveland, 369 F.3d at 1193; Duckworth v. Pilgrim’s Pride

Corp., 764 F. App’x (11th Cir. 2019).

In Count I of the Amended Complaint, Plaintiff asserts that he was

discriminated against because of his disability when, after becoming aware of his

disability, Defendant subjected him to a risk protection hearing, suspended him, made

him undergo a fitness for duty exam, requested all his medical records, and ultimately

terminated him. Doc. 12 ¶¶ 54-56. He does not offer direct evidence of discrimination,

instead relying on the fact that the adverse actions immediately followed the disclosure

of his disability as evidence that they were causally related. Id.

Defendant argues that it is entitled to summary judgment as to the

discrimination claim. Doc. 37. Although it concedes there are genuine issues of fact

with respect to the first and second elements of prima facie discrimination, Defendant

asserts it is entitled to summary judgment because Plaintiff cannot prove the third

element: that he experienced discrimination because of his disability. Id. at 19.

Specifically, Defendant argues that Plaintiff did not experience an adverse

employment action because he was placed on paid leave, the fitness-for-duty

examination was lawful, and the risk protection hearing did not result in a loss of

freedom. Id. at 19-22. Moreover, it contends that Plaintiff has not shown that its

articulated reason for taking those actions was pretextual. Id. at 22.

In response, Plaintiff argues that he has established a prima facie case of

discrimination. Doc. 44 at 6. He asserts that the events and actions Defendant

identifies that led up to the August 2020 incident are irrelevant because they were so

minor that they did not result in discipline, let alone a fitness for duty examination;

and that events occurring after he was placed on administrative leave cannot be

considered because the adverse action was already taken by then. Id. at 7-8. Plaintiff

does not use the term “pretext,” but argues that Defendant’s decision to remove him

from duty “was squarely based on Plaintiff’s disclosure of his disability,” because,

“[w]hen Defendant removed Plaintiff from duty, Plaintiff had not exhibited any new

or different behaviors which would have justified Defendant’s actions.” Id. at 8. In

addition, Plaintiff contends that the risk protection petition Defendant filed against

him resulted in a significant loss because he was deprived of his property and his

Second Amendment rights for nearly a month. Id. at 8-9.

Defendant replies to point out that Plaintiff has apparently abandoned his

original claim that he was terminated because of his disability. Doc. 49 at 2. In

addition, it continues to argue that neither a paid suspension nor a fitness for duty

examination is an adverse employment action. Id. at 3-4. Defendant also argues that

Plaintiff has failed to dispute its evidence regarding the non-discriminatory reason for

the allegedly adverse actions. Id. at 5-6.

For the purpose of the motion for summary judgment, the Court need not

resolve the parties’ disputes regarding whether Plaintiff experienced an adverse

employment action under the third element of a prima facie case. See Scott v. Suncoast

Beverage Sales, Ltd., 295 F.3d 1223, 1228 (11th Cir. 2002) (assuming for the purpose of

pretext analysis that plaintiff made out a prima facie case of discrimination). As in

Scott, the Court will assume, arguendo, that Plaintiff established a prima facie case of

discrimination. However, Defendant is entitled to summary judgment because

Plaintiff has not met its burden of proof under the final step of the McDonnell-Douglas

framework, because a reasonable jury could not conclude that Defendant’s proffered

reason for the adverse actions was discriminatory.

First, Defendant has adequately satisfied its “extremely light burden” of

identifying a legitimate, non-discriminatory reason for the actions it took against

Plaintiff. See Perryman, 698 F.2d at 1142. Defendant has produced evidence that

Plaintiff was placed on administrative leave, required to take a fitness for duty exam,

and recommended for a risk protection order because of behavior that Captain

DeFelice observed on August 5, 2020. DeFelice gave a detailed, written description

of the behavior within a day of observing it. Doc. 37-4. He described that Plaintiff was

displaying signs of severe stress and anxiety, which included erratic angry outbursts,

difficulty focusing, talking to himself while in conversation with DeFelice and another

officer, incoherent mumbling, hitting himself on the head, and calling himself stupid.

Id. at 3. DeFelice’s account of this behavior is corroborated, at least in part, by Polk’s

description of Plaintiff’s similarly erratic behavior the following day, as well as the

concerning text message Plaintiff sent Polk shortly after speaking with DeFelice. See

Docs. 37-7, 37-13. When the described behavior is viewed in the context of someone

who was under investigation for child abuse,4 had been the subject of two calls for

domestic disputes within 24 hours, and whose job performance was already under

review, see id. at 2, it was not objectively unreasonable to conclude that Plaintiff should

4 The child abuse investigation was not closed until August 13, 2020. Doc. 37-24 at 35.

not have access to firearms or continue serving as a police officer without an

examination.

As the Eleventh Circuit has explained,

The employer “need not persuade the court that it was actually

motivated by the proffered reasons.” Wilson v. B/E Aerospace, Inc.,

376 F.3d 1079, 1087 (11th Cir. 2004) (quoting Tex. Dep't of Cmty.

Affairs v. Burdine, 450 U.S. 248, 254-55, (1981)). The reason must

be “one that might motivate a reasonable employer.” See Chapman

v. AI Transp., 229 F.3d 1012, 1030–31 (11th Cir. 2000). The

employer, therefore, only needs to “produce admissible evidence

which would allow the trier of fact rationally to conclude that the

employment decision had not been motivated by discriminatory

animus.” Tex. Dep't of Cmty. Affairs, 450 U.S. at 257, 101 S.Ct.

1089.

Duckworth, 764 F. App'x at 853. Plaintiff’s described behavior certainly “might

motivate a reasonable employer” to remove a police officer from duty, require him to

undergo a fitness for duty exam before returning, and attempt to remove his access to

firearms. See id. Based on the proffered evidence, a jury could rationally conclude that

the adverse actions were not motivated by discriminatory animus. Defendant has met

its burden.

Accordingly, the burden of proof shifts back to Plaintiff to provide or identify

evidence from which a reasonable juror could conclude that the non-discriminatory

reason was pretextual. See Duckworth, 764 F. App'x at 854 (“A plaintiff must meet the

employer's given reason head on and rebut it[.]”), citing Chapman v. AI Transport, 229

F.3d 1012, 1030 (11th Cir. 2000). But Plaintiff has not done so. Rather, his response

in opposition to Defendant’s motion for summary judgment ignores the entire

existence of the report of Plaintiff’s behavior on August 5, except to claim, vaguely

and without support, that Plaintiff “had not exhibited any new or different behaviors

which would have justified Defendant’s actions.” Doc. 44 at 8. Yet, as Defendant

correctly observes, “Plaintiff does not dispute DeFelice’s account or allege

mendacity.” Doc. 49 at 5. He does not argue that DeFelice’s description of his

behavior is incredible. Nor does he cite any evidence that contradicts or casts doubt

on it. See Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact…is genuinely disputed

must support the assertion by: (A) citing to particular parts of materials in the record…;

or (B) showing that the materials cited do not establish the…absence of a genuine

dispute[.]”); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (“Rule 56(e) therefore

requires the nonmoving party to go beyond the pleadings and…designate ‘specific

facts showing there is a genuine issue for trial’”); Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 257 (1986) (“The plaintiff must present affirmative evidence in order to

defeat a properly supported motion for summary judgment.”); see also Ring v. Boca Ciega

Yacht Club Inc., 4 F.4th 1149, 1163-64 (11th Cir. 2021) (plaintiff’s failure to even

“attempt to rebut” one of defendant’s offered reasons for adverse actions entitled

defendant to summary judgment).

Indeed, Plaintiff’s own account of August 5 does not fully contradict

DeFelice’s.5 In his rebuttal to Defendant’s response to the EEOC charge, he explained

that DeFelice’s description of his behavior “discounts the circumstances of the

5 The Court may, but is not required to, consider materials in the record that are not cited. See

Fed. R. Civ. P. 56(c)(3). Nonetheless, it has reviewed the record in an attempt to determine

Plaintiff’s position regarding DeFelice’s account, as the response in opposition to summary

judgment lacks any challenge to it.

encounter,” given the stressful situation Plaintiff was under at the time. Doc. 37-4 at

251. Plaintiff seemed to agree with DeFelice’s characterization that he was “very

emotional, exhibiting signs of severe stress and anxiety,” but argued that the obvious

cause for the behavior was the unusual nature of the events rather than his mental

health. Id. He also acknowledged that the stress he experienced “probably came across

as increased anxious behavior as the night progressed.” Id. Plaintiff’s deposition

testimony on the same topic was more equivocal:

“I was agitated, but I was calm….I was extremely calm[,] for the

situation…. I kept it together. I may have shown a, you know,

facial expression or I may have rubbed my hands—I know I

rubbed my hands on my forehead out of frustration. I was

embarrassed, but I was calm.”

Id. at 167-68. Plaintiff denied hitting himself in the head. Id. at 168.6

A party’s own self-serving statements based on personal knowledge or

observation can, in some cases, defeat summary judgment. United States v. Stein, 881

F.3d 853, 857 (11th Cir. 2018). Here, however, Plaintiff’s equivocal statements are

not enough to establish a genuine dispute of fact regarding his behavior on August 5.

“A mere scintilla of evidence…will not suffice” to defeat summary judgment; rather,

“there must be enough of a showing that the jury could reasonably find for that party.”

6 Similarly, in Plaintiff’s arbitration hearing testimony he agreed that he was “very” upset that

night, but stated that DeFelice’s claim that he was hitting himself in the head was “absolutely

not true.” Doc. 37-3 at 51, 137-38. He testified, while demonstrating, that he had his head in

his hands and he was rubbing his hands down his face, as if to convey “I can’t believe this is

happening.” Id. at 200. Testifying later, DeFelice agreed the gesture he observed on August

5 was similar to the one Plaintiff demonstrated but said it was “a lot more aggressive in

nature.” Id. at 301.

Brooks v. Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160, 1161 (11th Cir. 2006) (citation

omitted). Plaintiff’s denial that he hit himself in the head, while largely conceding that

the rest of DeFelice’s account of his behavior is accurate, is no more than a “mere

scintilla” of evidence in his favor that is insufficient to create a showing by which the

jury could find for him. Viewing the evidence in the light most favorable to Plaintiff,

he has failed to establish a genuine question of fact that the articulated reason for taking

adverse actions against him on August 5 was pretextual.

Moreover, Plaintiff’s claim that DeFelice should have viewed his behavior in

the context of an isolated, upsetting situation rather than as a mental health crisis does

not create an issue of fact. A plaintiff “cannot succeed by simply quarreling with the

wisdom of” the employer’s given reason. Duckworth, 764 F. App’x at 854. “We are

not in the business of adjudging whether employment decisions are prudent or fair.

Instead, our sole concern is whether unlawful discriminatory animus motivates a

challenged employment decision.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d

1354, 1361 (11th Cir.1999). The question is whether the employer was dissatisfied

with the plaintiff for “non-discriminatory reasons, even if mistakenly or unfairly so”

or whether it instead merely used this incident “as cover” for discrimination. Alvarez

v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1266 (11th Cir. 2010). Absent any evidence

that the true reason for the adverse actions Defendant took against Plaintiff was

discriminatory, this Court cannot second-guess Defendant’s judgment.7

7 In addition, to the extent Plaintiff relies on the temporal proximity between his disclosure of

his mental illness and the adverse actions taken against him as the sole evidence of pretext, it

Finally, the Court agrees with Defendant that Plaintiff appears to have

abandoned his initial claim that his termination was the result of disability

discrimination. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.

1995) (“[T]he onus is on the parties to formulate arguments; grounds alleged in the

complaint but not relied upon in [opposing] summary judgment are deemed

abandoned.”). To the extent he has not, the Court finds, for the reasons described in

Section B, infra, that he has failed to offer evidence establishing that the

insubordination charge was a pretext for disability discrimination. Because there is no

evidence from which a reasonable jury could make a finding of discrimination,

Defendant is entitled to summary judgment as to Count I.

B. ADA Retaliation (Count II)

Title V of the ADA prohibits retaliation against an individual for opposing any

discriminatory act or practice or making a charge of disability discrimination. 42

U.S.C. § 12203(a). The plaintiff can establish a prima facie case of retaliation by

proving the following elements:

1. he engaged in a statutorily protected expression,

2. he suffered an adverse employment action, and

3. there was a causal connection between the two.

is unavailing. The observed behavior took place at the same time as the disclosure. As noted,

there is no other evidence from which a jury could conclude that the disclosure was more

likely—to even as likely—to cause the adverse actions than the observed behavior. Therefore,

the temporal proximity alone is not enough to create a genuine issue of fact as to the credibility

of the articulated reason.

Frazier-White v. Gee, 818 F.3d 1249, 1258 (11th Cir. 2016). A retaliation claim based

on circumstantial evidence follows the same McDonnell-Douglas burden-shifting

framework as a discrimination claim. Therefore, once the plaintiff has established a

prima facie case of retaliation, the burden of proof shifts to the employer to articulate

a legitimate, non-retaliatory explanation for taking the adverse action. See Ring v. Boca

Ciega Yacht Club Inc., 4 F.4th 1149, 1163 (11th Cir. 2021) (citation omitted).8 If the

employer meets its burden, the plaintiff must show that the proffered reason is a pretext

for retaliation. Id. A reason cannot be proved to be a pretext for retaliation unless it is

shown both that the reason was false and that retaliation was the real reason. Id., citing

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993).

In Count II of the Amended Complaint, Plaintiff alleges that he was terminated

on April 28, 2021, in retaliation for filing an EEOC charge of discrimination on

February 23, 2021. Doc. 12 ¶¶ 41-42, 61-63. He alleges that he would not have been

terminated if he had not filed the EEOC charge. Id. ¶ 64.

In its motion for summary judgment, Defendant argues that Plaintiff has failed

to offer evidence from which a jury could find a causal relationship between the EEOC

charge and the termination. Doc. 37 at 23. It asserts that temporal proximity of more

8 The Ring Court noted that ADA retaliation claims are evaluated identically to claims under

Title VII of the Civil Rights Act. Ring, 4 F.4th at 1163, citing Stewart v. Happy Herman’s Cheshire

Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997); see also Double v. FedEx Ground Package

System, Inc., 572 F. App’x 889, 895 (11th Cir. 2014) (“We evaluate ADA…retaliation cases

under [the same framework]”).

than two months is not enough to prove causation, nor can temporal proximity alone

establish that the non-retaliatory reason Defendant offered was pretext. Id. at 23-25.

In response, Plaintiff contends that the causation element of a prima facie case

is construed broadly, and he points out that there is greater temporal proximity

between the termination and the EEOC charge than the order to release his VA

medical records, which occurred five months earlier. Doc. 44 at 9-11. Plaintiff argues

that the temporal connection would allow a reasonable jury to conclude that

Defendant terminated Plaintiff because he filed an EEOC charge. Id. Defendant

argues in its reply that the termination was based on Plaintiff’s failure to comply with

the April 14, 2021, order by the police chief, rather than the original order five months

earlier. Doc. 49 at 9.

For this count, too, the Court will bypass the question of whether Plaintiff has

established a prima facie case of retaliation in favor of a pretext analysis. Assuming,

arguendo, that he has, the Court finds that Plaintiff has failed to establish a genuine

issue of material fact as to whether the insubordination charge was a pretext for

retaliation. Defendant is entitled to summary judgment as to Count II as well.

Defendant has offered evidence that Plaintiff was terminated for

insubordination after he failed to comply with a personal order of the police chief on

April 14, 2021, to sign the release for his VA records. See Doc. 37-22; Doc. 37-8 ¶ 9.

Defendant has met its light burden of proffering a legitimate, non-retaliatory reason

for the adverse action. Accordingly, the burden of proof shifts back to Plaintiff to

establish that the reason was pretext.

As described in Section III(A), supra, a plaintiff seeking to establish pretext

cannot “merely quarrel[] with” the employer’s proffered reason, and must instead

“meet it head on and rebut it[.]” Thomas v. Dolgencorp, LLC, 645 F. App’x 948, 951

(11th Cir. 2016). In doing so, the plaintiff may “demonstrate[] weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s

proffered legitimate reasons for its action” such that “a reasonable factfinder could find

them unworthy of credence.” McAlpin v. Sneads, 61 F.4th 916 (11th Cir. 2023)

(quotation omitted). An employer’s deviation from its own standard procedures, or

its failure to articulate clearly and consistently the reason for an employee’s discharge,

may serve as evidence of pretext. Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d

1286, 1298-99 (11th Cir. 2006). Evidence that the employer treated similarly situated

individuals, or “comparators,” differently, may also demonstrate pretext. Johnson v.

Miami-Dade Cnty., 948 F.3d 1318, 1325-26 (11th Cir. 2020); see Damon v. Fleming

Supermarkets of Fla., Inc., 196 F.3d 1354, 1363 (11th Cir.1999) (violation of work rule

may be a pretextual reason for termination where other employees who engaged in

similar acts were not similarly treated). Although temporal proximity may establish

pretext if it is coupled with other evidence, it is not enough on its own. Graves v.

Brandstar, Inc., 67 F.4th 1117, 1123-24 (11th Cir. 2023), citing Gogel v. Kia Motors Mfg.

of Georgia, Inc., 967 F.3d 1121, 1138 n.15 (11th Cir. 2020).

Plaintiff concedes that he disobeyed the police chief’s April 14 order, see Doc.

48 at 2, and he does not argue that this action did not constitute insubordination. See

Lyons v. Miami Dade Cnty. Fire Rescue Dep't, 470 F. App'x 801, 803 (11th Cir. 2012)

(plaintiff “failed to present evidence that would create a genuine issue of material fact

about whether the reason for her termination”—her refusal to execute a release to

disclose her medical records for a fitness for duty exam—"was discriminatory or

unworthy of credence,” where she conceded she refused to sign the release); see also

Matamoros v. Broward Sheriff’s Office, 2 F.4th 1329, 1338 (11th Cir. 2021) (upholding

summary judgment for employer where the plaintiff “admitted to her attendance issues

and never challenged her tardiness reports or sick-leave reviews.”). Likewise, in

VanDeWalle v. Leon Cnty. Fla., 661 F. App'x 581, 586 (11th Cir. 2016), the court upheld

summary judgment for the employer where the plaintiff did not dispute the veracity of

the violation that the employer stated was the cause of her termination, nor did she

challenge her prior insubordination violations. The court rejected the plaintiff’s

argument that the employer’s reason was pretextual because the termination occurred

“mere weeks”—nearly two months—after she engaged in protected activity, given that

her disciplinary history had begun the previous fall. Id. at 586-87. Here, too, the

undisputed insubordination that led to Plaintiff’s termination was the culmination of

a series of insubordinate acts—repeated refusals to sign the VA release—that began

well before his EEOC complaint.

In arguing that he was terminated because of retaliation, Plaintiff does not offer

evidence of TPD employees who were not fired despite committing insubordination.

He also does not contend that Defendant gave inconsistent explanations for his

termination, or that it deviated from its standard procedures in terminating him.

Instead, he offers two reasons that a reasonable jury could find he was terminated out

of retaliation: the fact that he was not fired earlier, despite refusing to disclose the

records for the past five months, and the temporal proximity between his EEOC charge

and the termination. Doc. 44 at 11. However, neither of Plaintiff’s points is directed

toward Defendant’s specific reason for termination: Plaintiff’s refusal to comply with

an express, personal order by the police chief of the City of Tampa. The police chief

issued this order for the first and only time just two weeks before terminating him—

well after Plaintiff’s EEOC complaint in February. Plaintiff has failed to offer any, let

alone adequate, evidence that the insubordination charge was a pretext for retaliation.

Nor is there a genuine issue of material fact because Plaintiff was not terminated

after he disobeyed the prior order to disclose his records. In Entrekin v. City of Panama

City Fla., 376 F. App'x 987, 997-98 (11th Cir. 2010), the court upheld summary

judgment for the employer, a police department, when it terminated the plaintiff after

her fourth insubordination violation, even though department policy permitted

termination after only one instance of insubordination. Similarly, here, it was not

unreasonable for Defendant to choose to terminate Plaintiff, an officer with a positive

tenure in the department, only after the most egregious and final instance of

insubordination.

As the Eleventh Circuit has “repeatedly and emphatically held, employers may

terminate an employee for a good or bad reason without violating [the] law.” Flowers,

803 F.3d at 1338, citing Damon, 196 F.3d at 1361 and Elrod v. Sears, Roebuck & Co., 939

F.2d 1466, 1470 (11th Cir.1991) (quotations omitted). Viewing the evidence in the

light most favorable to Plaintiff, he has failed to establish the existence of a genuine

dispute of fact as to whether Defendant’s proffered reason for terminating him was a

pretext for retaliation. Defendant is entitled to summary judgment as to Count II.

Accordingly, it is ORDERED:

1. Defendant City of Tampa’s Motion for Summary Judgment (Doc. 37) is

GRANTED. As no genuine issues of material fact exist as to Defendant’s

proffered reasons for its actions, discussed above, and Plaintiff failed to establish

that the actions were pretextual, Defendant is entitled to judgment in its favor

as a matter of law.

2. The Clerk is directed to enter judgment in favor of Defendant, City of Tampa,

terminate any pending motions, and close this case.

DONE and ORDERED in Tampa, Florida on July 21, 2023.

Chae sas Cuda as Wana A gl ell Q_

Charlene Edwards Honeywell

United States District Judge

Copies furnished to:

Counsel of Record

Unrepresented Parties