# Israel v. City of Tampa

> District Court, M.D. Florida · July 21, 2023

URL: https://www.frixlaw.com/law-library/cases/10113496

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** July 21, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10113496. Public record. Not legal advice.