Lemay v. UCMS, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

CRYSTAL LEMAY,

Plaintiff,

v. Case No.: 2:22-cv-9-SPC-KCD

UCMS, LLC,

Defendant.

/

OPINION AND ORDER

Before the Court is Defendant UCMS, LLC’s Motion for Summary

Judgment. (Doc. 47). Plaintiff Crystal Lemay responded (Doc. 52), and UCMS

replied to Plaintiff’s Response in Opposition (Doc. 53).

DISCUSSION

This case is largely a Family Medical Leave Act (FMLA) and Americans

with Disabilities Act (ADA) case, with some Florida Civil Rights Act (FCRA)

and Employee Retirement Income Security Act (ERISA) claims thrown in.

From February 2018 until January 9, 2020, Lemay was employed by

UCMS. (Doc. 1 at 6). For purposes of her claims, the most relevant months of

her employment are November 2019, December 2019, and January 2020.

On November 25, 2019, Lemay went to the emergency room for “extreme

abdominal pains.” (Doc. 52-2 at 1). She sent Nicole Kinsworthy (CEO of

UCMS) a series of text messages that day explaining a panoply of issues

discovered by doctors: “[A] borderline enlarged spleen, a stable umbilical

hernia, a stable pulmonary nodule w/right upper lobe, oh and yea a new black

spot measuring 1cm on my uterus possible [sic] cancerous.” (Doc. 52-2 at 1;

Doc. 47-9 at 1). Medical records from that date confirm doctors found a “1 cm

hypodense focus . . . too small to characterize” on the “left aspect of the uterine

body.” (Doc. 47-1 at 7). Those records indicate that “[i]f clinically warranted,”

Lemay should follow up with a pelvic ultrasound “on a nonemergent basis.”

(Doc. 47-1 at 7).

On November 26, 2019, Lemay orally informed Kinsworthy and Shaidy

Ventura (UCMS Director of Human Resources) that “due to her prior medical

history, her physician recommended surgery” that would require her to take

time off from work. (Doc. 1 at 10). On November 30, 2019, however, Lemay

spoke to her doctor and decided she would “like to avoid” a hysterectomy. (Doc.

47-6 at 3).

On December 2, 2019, Lemay told Ventura via text that she “may have

to schedule a surgery soon . . . once I see my dr [sic] I will schedule that date

and I will let you know ASAP.” (Doc. 52-3 at 2-3).

Despite her representation to Ventura, Lemay returned to the doctor’s

office on December 6, 2019, and declined a hysterectomy in favor of more

conservative treatment. (Doc. 47-3 at 3). Then sometime between December

6, 2019, and December 18, 2019, Lemay requested a hysterectomy. (Doc. 47-5

at 2). “Around” December 18, 2019, Lemay scheduled the surgery for January

13, 2020. (Doc. 52-1 at 4). She orally informed Kinsworthy and Ventura of her

surgery date and the month of time off she would need to recover. (Doc. 52-1

at 4).

Text messages between Lemay and Kinsworthy on January 3, 2020,

show that Ventura told Lemay she could not work from home after her surgery.

(Doc. 52-2 at 4; Doc. 52-4; Doc. 47-10 at 1). That same day, Lemay told

Kinsworthy that she was “more than likely” canceling her surgery for

monetary reasons. (Doc. 52-2 at 4; Doc. 47-10 at 1). But two days later on

January 5, 2020, Lemay said she had “preop in the morning.” (Doc. 52-2 at 5;

Doc. 47-10 at 1).

On January 8, 2020, Ventura emailed Lemay requesting she submit a

time off request for her surgery because “I need to know your last day of work

in the office and when you expect to return to the office.” (Doc. 52-5). Lemay

submitted a written leave request that day. (Doc. 1 at 10).

The next day, Ventura fired Lemay. (Doc. 1 at 4). Ventura told Lemay

that her position was being eliminated. (Doc. 1 at 11; Lemay Depo p 131, ln

18-24). Lemay had a hysterectomy on January 13, 2020, and she began a new

job with a new company the month after. (Lemay Depo p 139, ln 7-19; Doc. 52-

1 at 5).

LEGAL STANDARD

“The court shall grant summary judgment if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it

“might affect the outcome of the suit under the governing law.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a material fact is in genuine

dispute “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Id.

The moving party bears the initial burden to show a lack of genuinely

disputed material fact. Clark v. Coats & Clark, 929 F.2d 604, 608 (11th Cir.

1991). If carried, the burden shifts to the nonmoving party to point out a

genuine dispute. Id. At this stage, courts view all facts and draw all

reasonable inferences in the light most favorable to the nonmoving party.

Rojas v. Florida, 285 F.3d 1339, 1341-42 (11th Cir. 2002).

DISCUSSION

Lemay filed an eight-count complaint. (Doc. 1). Lemay alleges two

FMLA claims (interference with FMLA rights and FMLA retaliation), three

ADA claims (discrimination, failure to accommodate, and

retaliation/interference), two FCRA claims (discrimination/retaliation and

failure to accommodate), and an ERISA claim. (Doc. 1).

A. Count I: Interference with FMLA Rights

Lemay alleges that UCMS interfered with her FMLA rights by failing to

provide her with notice of her FMLA rights and by terminating her

employment after she requested FMLA leave. (Doc. 1 at 18).

FMLA interference requires three elements: (1) the plaintiff must show

that she was entitled to a benefit under the FMLA, (2) the plaintiff must show

that her employer denied her that benefit, and (3) the plaintiff must

“demonstrate harm, or prejudice, resulting from the employer’s interference

with her exercise (or attempted exercise) of an FMLA benefit.” Graves v.

Brandstar, Inc., 67 F.4th 1117, 1121 (11th Cir. 2023). The parties square off

over the first element.

To state a claim for interference with an FMLA right, a plaintiff needs

to demonstrate by a preponderance of the evidence that she was entitled to

(but denied) the right. O’Connor v. PCA Fam. Health Plan, Inc., 200 F.3d 1349,

1353-54 (11th Cir. 2000). So the plaintiff needs to show that she provided her

employer with proper notice of the need for FMLA leave. White v. Beltram

Edge Tool Supply, Inc., 789 F.3d 1188, 1195 (11th Cir. 2015). “An employee’s

notice of her need for FMLA leave must satisfy two criteria—timing and

content—both of which differ depending on whether the need for leave is

foreseeable or unforeseeable.” White v. Beltram Edge Tool Supply, 789 F.2d

1188 (11th Cir. 2015).

UCMS argues that Lemay’s request for FMLA leave was inadequate and

untimely under 29 C.F.R. § 825.302 and so failed to trigger UCMS’s FMLA

obligations. The problem with UCMS’s argument is that the adequacy and

timeliness of Lemay’s notice are steeped with questions of disputed material

facts.

Whether Lemay’s hysterectomy was foreseeable is a muddy issue.

Lemay never received a cancer diagnosis, and medical records suggest that the

spot on her uterus was “nonemergent.” (Doc. 47-1 at 7).1 Doctors had

suggested Lemay get a hysterectomy years before the spot appeared—and

years before her employment with UCMS. (Doc. 47-6 at 3). Yet as of December

6, 2019, Lemay continued to decline a hysterectomy—only to have one 38 days

later. (Doc. 47-3 at 3).

Without clarity on whether Lemay’s hysterectomy (and leave) was

foreseeable, it is hard to determine whether her notice was adequate. If her

hysterectomy was foreseeable, she would generally have to give her employer

at least 30 days’ notice before FMLA leave was to begin and her notice would

need to include “the anticipated timing and duration of the leave.” 29 C.F.R.

§ 825.302(a)-(c). But if her need for leave was unforeseeable, Lemay would

1 But see Munoz v. Selig Enters., 981 F.3d 1265, 1276 (11th Cir. 2020) (“Employees with

health conditions who experience a sudden, acute flareup can demonstrate an unforeseeable

need for FMLA leave”).

need to inform her employer “as soon as practicable” and only “provide

sufficient information for [her] employer to reasonably determine whether the

FMLA may apply to the leave request.” White v. Beltram Edge Tool Supply,

789 F.2d 1188, 1195 (11th Cir. 2015); 29 C.F.R. § 825.303(b). This distinction

matters here.

There are at least three distinct events that may constitute some (or all)

of Lemay’s “notice” to UCMS. Some discussions were oral, and their precise

content is uncertain. Some discussions occurred outside the 30-day notice

window and others occurred within it. Some discussions occurred with

Kinsworthy and others with Ventura. And it’s unclear whether—before her

written notice on January 8th—she specifically requested time off from work

for surgery. Graves v. Brandstar, Inc., 67 F.4th 1117, 1122 (11th Cir. 2023)

(noting that 29 C.F.R. § 825.300(b)(1) “sets a low bar, but in either triggering

instance, the employee must ask for time off—i.e., leave—in order to prompt

the employer’s notice obligations”).

“Whether a plaintiff’s notice is adequate is generally a jury question.”

See Lee v. Clark, No. 1:21-CV-03854-ELR-JEM, 2023 WL 2113616, at *8-9

(N.D. Ga. Jan. 13, 2023) (citing cases from the Second, Third, and Eighth

Circuits). And it is easy to see why. An employer only incurs FMLA obligations

when certain circumstances arise. Whether these circumstances have arisen

requires analysis of the sufficiency of a (possibly verbal) notice,2 as well as an

analysis of timeliness. See Sparks v. Sunshine Mills, 580 F. App’x 759, 765

(11th Cir. 2014) (finding the employee’s “notice” insufficient when he informed

his employer “it was looking like it was very possible [he was] going to have to

have surgery” but “did not request leave or provide any information related to

the timing or duration of any leave”); 29 C.F.R. § 825.302(a). And the

timeliness analysis requires inquiry into practicability, which turns on “all of

the facts and circumstances in the individual case.” 29 C.F.R. § 825.302(b).

Because of the disputed material facts over Lemay’s notice, summary judgment

as to the FMLA interference claim (Count I) is denied.

B. Count II: FMLA Retaliation

Count II alleges FMLA retaliation. (Doc. 1 at 20). The FMLA prohibits

employers from retaliating against employees for engaging in protected

activities. Munoz v. Selig Enters., 981 F.3d 1265, 1275 (11th Cir. 2020). FMLA

retaliation claims are assessed under the familiar McDonnell Douglas burden-

shifting framework. Id.

2 UCMS says it was company policy for leave requests to be in writing, so “any verbal request

would not comply with company policy/procedure.” (Doc. 47 at 12). But this is yet another

disputed fact. UCMS did not provide a company handbook or other written document in

support of this “policy.” Instead, it provided a text message from approximately nine months

prior to Lemay’s surgery which said, “There may be a new process for paperwork re: time off,

but I approve the time off.” (Doc. 47-8). Lemay stated in her deposition that every time she

requested time off, she “spoke to [Kinsworthy] and got it okayed through her” and that

Kinsworthy told her she did not need to request time off for her hysterectomy in writing.

(Lemay Depo p 102-103, ln 2-23).

The burden starts with the plaintiff to show a prima facie case of FMLA

retaliation: (1) that she engaged in statutorily protected conduct, (2) that she

suffered an adverse employment action, and (3) there is a causal connection

between the two. Hubert v. St. Mary’s Health Care Sys. Inc., 439 F.3d 1286,

1297 (11th Cir. 2006); see also Brungart v. BellSouth Telecomms., Inc., 231

F.3d 791, 799 (11th Cir. 2000) (the causal connection element is satisfied if a

plaintiff shows that the protected activity and adverse action were “not wholly

unrelated”). If the plaintiff establishes her prima facie case, the burden shifts

to the defendant to articulate a legitimate reason for the adverse action. Id. If

the defendant provides such a reason, the plaintiff must show that the

defendant’s proffered reason for the adverse action is pretextual. Id. To

establish a retaliation claim, the plaintiff also must show that the employer’s

actions were motivated by an impermissible retaliatory or discriminatory

animus. Id.

Lemay has met her prima facie burden. It is undisputed that she

submitted a formal written request for FMLA leave on January 8. And it is

undisputed that Ventura, who knew about Lemay’s leave request, fired her the

next day. See Brungart, 231 F.3d at 799 (a plaintiff can show the protected

activity and the adverse action are “not wholly unrelated” if the decision maker

was aware of the protected conduct at the time of the adverse employment

action).

So the burden shifts to UCMS to provide a legitimate reason for Lemay’s

firing—but UCMS has not given one. The Court’s only information about why

UCMS fired Lemay is Lemay’s deposition. According to Lemay, she was fired

by Ventura, who said, “I have to release you from your position. We no longer

need [your position].” (Lemay Depo p 131, ln 20-24). But UCMS does not offer

this specific reason (or any other reason) for why it terminated Lemay. UCMS

simply quotes Lemay’s deposition testimony on what Ventura told her when

she was fired. (Doc. 47 at 8). Without supplying any reason for firing Lemay,

UCMS has not carried its burden to win on summary judgment. So the Court

denies summary judgment as to the FMLA retaliation claim (Count II).

C. Counts III-V: ADA Claims

The ADA protects employees who: (1) have a disability, (2) can perform

the essential functions of their job with or without reasonable accommodations,

and (3) are subjected to unlawful discrimination because of their disability.

Munoz v. Selig Enters., 981 F.3d 1265, 1272 (11th Cir. 2020) (internal citation

omitted). Only the first prong is at issue here.

Under the ADA, a “disability” is: (1) a physical or mental impairment

that substantially limits one or more major life activities or such individual,

(2) a record of such impairment, or (3) being regarded as having such an

impairment. 42 U.S.C. § 12102(1). Lemay pursues her ADA claims in Counts

III-V under all three theories of disability (actual disability, record of disability,

and regarded as disability). However, UCMS only provides meaningful

argument as to the actual disability and regarded as disability theories.3

Because no argument is made on Lemay’s record of disability theory, it

survives summary judgment as to all ADA claims. See Fils v. City of Aventura,

647 F.3d 1272, 1284 (11th Cir. 2011) (“[D]istrict courts cannot concoct or

resurrect arguments neither made nor advanced by the parties”). With that

said, the Court will next analyze the ADA claims collectively as to Lemay’s

actual and regarded as disability claims, and will follow with the other matters

specific to individual counts.

1. Actual Disability

As stated, an actual disability is a physical or mental impairment that

substantially limits one or more major life activities or such individual. “Major

life activities” include, but are not limited to, “caring for oneself, performing

manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,

bending, speaking, breathing, learning, reading, concentrating, thinking,

communicating, and working.” 42 U.S.C. § 12102(2)(A). A “major life activity

also includes the operation of a major bodily function, including but not limited

to, functions of the immune system, normal cell growth, digestive, bowel,

3 UCMS’ sole reference to “record of disability” is a quote from Lambert v. Target Corp.: “Since

Plaintiff ‘does not have a record of impairment, nor is there any evidence that Defendant

regarded Plaintiff as having an impairment . . . there is ‘no genuine issue of material fact

that she was [not] disabled’ and ‘Defendant is entitled to summary judgment.’” (Doc. 47 at

19). It otherwise makes no argument on this theory of disability.

bladder, neurological, brain, respiratory, circulatory, endocrine, and

reproductive functions.” 42 U.S.C. § 12102(2)(B).

Lemay never clearly pinpoints her disability. In her Complaint (Doc. 1),

Lemay does not state her disability or what major life activity it impacts;

instead, she relies on boilerplate language to allege she has a disability. In

opposing summary judgment (Doc. 52), Lemay offers more on her disability.

Specifically, she says, “HPV that caused precancerous cells and heavy and

irregular menstrual cycles that led to her hysterotomy was an actual disability

because it substantially limited her major life activity of reproduction and

normal cell growth.” (Doc. 52 at 13). This sentence is ambiguous as to her

actual disability—HPV? Precancerous cells? Heavy and irregular menstrual

cycles? Her hysterectomy?

Munoz v. Selig Enters., 981 F.3d 1265, 1275 (11th Cir. 2020) is

instructive in evaluating Lemay’s actual disability. In Munoz, the Eleventh

Circuit considered whether a plaintiff was disabled under the ADA by ovarian

cysts, uterine fibroids, and endometriosis. Id. at 1272. The plaintiff suffered

“extreme pain, exhaustion, sleep interruption, and lack of bodily function

control” which substantially limited her ability to sleep, work, and reproduce.

Id. at 1273. She said, “there were days she could not leave bed because of pain

and fatigue” and she was “house bound from time to time.” Id. But the

Eleventh Circuit concluded that because the record did not contain evidence of

the timing, frequency, and duration of the plaintiff’s impairments, she did not

prove that she was disabled under the ADA. Id. The Court recognized that

although there was record evidence that the plaintiff suffered from

endometriosis, uterine fibroids, and ovarian cysts—all “disorder[s] of the

reproductive system”—she did not introduce evidence that she was

substantially limited in her ability to procreate because of these impairments.

Id.

The plaintiff in Munoz presented more evidence supporting her alleged

disability than Lemay has here. Lemay testified that her disability is

“unknown [precursor] cancer,” which she was diagnosed with in 1999. (Lemay

Depo p 18, ln 13-16; Doc. 52-1 at 1). Her “diagnosis” of “unknown cancer”

caused her to be disabled because it caused her “stress.” (Lemay Depo p 22, ln

6-9).4

But just before Lemay’s employment with UCMS, she worked for “Dr.

Jones” for “a long time.” (Lemay Depo p 35, ln 16-23). During her employment

with Dr. Jones, Lemay never took medical leave, never requested

accommodations, and did not consider herself disabled. (Lemay Depo p 35-37,

ln 16-1). Lemay explained the onset of her disability as both 1999 and 2018 by

4 She expands on this later in her deposition: “When I have to go every day in pain, constant

menstrual cycle, I am flowing constantly, bleeding constantly, cramping constantly, having

to go in for testing, having to wait for the biopsies to come back, that can stress anyone.”

(Lemay Depo p 38, ln 2-10). But apparently not much has changed since 1999, because she

has had “on and off testings” since 1999. (Lemay Depo p 38, ln 12-15).

saying, “It’s testing . . . you can’t put a table on when somebody has a precursor

cell.” (Lemay Depo p 37, ln 3-16).

Lemay is also silent on how her HPV or her “unknown [precursor]

cancer” substantially limits her ability to reproduce as compared to most

people in the general population. See Holton v. First Coast Serv. Options, Inc.,

703 F. App’x 917, 921 (11th Cir. 2017) (finding a letter from the plaintiff’s

chiropractor limiting her work hours “did not explain how [her] back pain

substantially limited any of her major life activities”). Lemay said that “it is

now impossible for me to have children because of the hysterectomy,” but her

hysterectomy cannot be her disability because it occurred after she was fired

from UCMS. (Doc. 52-1 at 5); Munoz, 981 F.3d at 1273.

Lemay also stated that she believes HPV affects her normal cell growth.

(Doc. 52-1 at 1). “Normal cell growth” is a major life activity under the ADA.

42 U.S.C. § 12102(2)(B). But the Court has very limited information

concerning Lemay’s “normal cell growth.”5 First, there is Lemay’s

“understanding” that her normal cell growth is affected. (Doc. 52-1 at 1). Next,

there is Lemay’s testimony about her yearly pap smears since 1999: “Some

tests come back good. Some tests come back bad. I do not have a number.”

5 The ADA generally assumes that cancer substantially limits normal cell growth. 29 C.F.R.

§ 1630.2(j)(3)(iii). But there is no evidence in the record that Lemay had cancer, and Lemay

does not affirmatively represent that she had cancer.

(Lemay Depo p 19-21, ln 19-4). And finally, there is Lemay’s testimony that

she “doesn’t know” if her pap smear results in 2019 were different than her

pap smear results between 1999 to 2018. (Lemay Depo p 22-23, ln 20-8). With

no explanation of timing, frequency, or duration, and no real evidence that her

HPV substantially limited her normal cell growth, Lemay has not met her

burden.

Even if the Court were to consider Lemay’s disability to be pain and

irregular menstrual cycles,6 the Court is missing evidence that these conditions

substantially limited a major life activity. And Lemay lacks sufficient evidence

of the timing, frequency, and duration of her pain and irregular menstrual

cycles. Lewis v. City of Union City, 934 F.3d 1169, 1180 (11th Cir. 2019)

(finding no actual disability because “the record here is devoid of evidence of

the severity, frequency and duration of these episodes”).

“‘Substantially limits’ is not meant to be a demanding standard.” 29

C.F.R. § 1630.2(j)(i). But that does not mean there is no standard. And where,

as here, the Court is left trying to piece together what Lemay’s alleged

condition is, when it arose, how often it manifests, whether it substantially

6 Before her hysterectomy, for reasons unclear from the record, Lemay was in “constant

[abdominal] pain . . . [and] bleeding every two weeks.” (Lemay Depo p 26-27, ln 20-21). Her

pain and irregular menstrual cycles predate her employment with UCMS. (Lemay Depo p

39, ln 9-16).

limits her, and what major life activity it impacts, the standard has not been

met.

The Court thus grants summary judgment as to Plaintiff’s theory of

actual disability on the ADA Claims in Counts III-V.

2. Regarded As Disability

An individual is considered “disabled” if she is “regarded as having such

an impairment . . . This means that the individual has been subjected to an

action prohibited by the ADA as amended because of an actual or perceived

impairment that is not both ‘transitory and minor.’” 29 C.F.R. § 1630.2(g)(iii).

Under the “regarded as” prong of the definition of “disability,” it is the

perception of an action or perceived physical impairment that matters, not

whether the plaintiff actually has an impairment that “substantially limits, or

is perceived to substantially limit, a major life activity.” 29 C.F.R. § 1630.2(l).

UCMS raises two brief points in opposition to Lemay’s “regarded as”

claims. First, UCMS says it could not have perceived Lemay to be disabled

because she did her work in a timely manner. Unsurprisingly, UCMS cites no

case law to support its position. UCMS’s argument suggests that an employer

cannot regard an employee as disabled so long as the employee can still

perform work tasks. That’s nonsensical.

Second, UCMS argues that Lemay could not have a “regarded as”

disability because her impairment was “transitory and minor.” (Doc. 47 at 17-

19). This argument also fails. A “transitory impairment” is “an impairment

with an actual or expected duration of 6 months or less.” 42 U.S.C.

§ 12102(3)(B). The ADA does not define “minor.”

UCMS discusses the “transitory and minor” issue as though Lemay’s

hysterectomy was her (perceived) impairment. But her surgery was her

treatment, not her impairment. See, e.g., Silk v. Bd. of Trs., 795 F.3d 698, 706

(7th Cir. 2015). And to defeat Lemay’s “regarded as” claims, the burden is on

UCMS to prove that Lemay’s impairment was objectively transitory and minor.

29 C.F.R. § 1630.15(f). UCMS has presented, however, no evidence of this,

except that Lemay returned to the workforce after a month-long recovery

period. But again, this establishes only that she timely recovered from her

surgery; it does not speak to whether her impairment was (or is) transitory and

minor.

It also bears repeating that UCMS has the burden to prove that Lemay’s

impairment was objectively transitory and minor. Lemay notified UCMS that

she thought she had cancer. Yet UCMS has not argued—or even mentioned—

that an objective employer would view cancer as transitory and minor.

Thus, the Court denies summary judgment on Counts III-V regarding

Lemay’s “regarded as” theory of disability.

But the Court cannot stop there because UCMS makes one more

argument specific to her failure to accommodate claim.

D. Count IV: Failure to Accommodate

Lemay alleges that she requested a reasonable accommodation for her

disability—leave—and that UCMS failed to determine whether her requested

accommodation was reasonable, failed to grant her leave, and terminated her

after she submitted her leave request. (Doc. 1 at 27).

Under the ADA, “discrimination” includes “not making reasonable

accommodations to the known physical or mental limitations of an otherwise

qualified individual with a disability” unless doing so “would impose an undue

hardship” on the employer. 42 U.S.C. § 12112(b)(5)(A). “Even if an employee

is legally disabled, she must specifically request an accommodation to trigger

the employer’s accommodation obligations.” D’Onofrio v. Costco Wholesale

Corp., 964 F.3d 1014, 1022 (11th Cir. 2020). But “if an employee does not

require an accommodation to perform [his] essential job functions, then the

employer is under no obligation to make an accommodation, even if the

employee requests an accommodation that is reasonable and could be easily

provided.” Id.

In moving for summary judgment, UCMS argues that FMLA leave

cannot constitute a reasonable accommodation under the ADA. (Doc. 47 at 20).

To support this argument, UCMS relies exclusively on Lowmack v. Am. Air

Conditioning & Heating Sols., LLC, No. 2:21-cv-1310-KKM-JSS, 2022 WL

1321385, at *5 (M.D. Fla. May 3, 2022). Lomack, in turn, relies on a single line

from Gilliard v. Ga. Dept. of Corr., 500 F. App’x 860, 864 (11th Cir. 2021) that

quotes an ADA regulation: “The leave provisions of the FMLA are ‘wholly

distinct from the reasonable accommodation obligations of employers covered

under the ADA,’” 29 C.F.R. § 825.702(a).

But a closer reading of 29 C.F.R. § 825.702(a) suggests that “wholly

distinct” does not mean what UCMS thinks it means. In fact, the regulation

also states that “[w]hen an employer violates both FMLA and a discrimination

law, an employee may be able to recover under either or both statutes.” Id.

And it provides an example to show the interplay between FMLA and the ADA:

A qualified individual with a disability who is also an

eligible employee entitled to FMLA leave requests 10

weeks of medical leave as a reasonable accommodation,

which the employer grants because it is not an undue

hardship. The employer advises the employee that the 10

weeks of leave is also being designated as FMLA leave and

will count towards the employee’s FMLA leave

entitlement. This designation does not prevent the parties

from also treating the leave as a reasonable accommodation

and reinstating the employee into the same job, as required

by the ADA, rather than an equivalent position under

FMLA, if that is the greater right available to the

employee.

29 C.F.R. § 825.702(c)(2) (emphasis added). Considering the full language of

the regulation, the Court is unpersuaded by UCMS’s argument. Thus, the

Court denies summary judgment as to the failure to accommodate claim

(subject to the Court’s ruling regarding Lemay’s “actual disability” theory).

E. Count V: Retaliation

Because the Court has granted summary judgment as to Lemay’s actual

disability theory, it must clarify how the ADA retaliation/interference claim

(Count V) will go forward, even though UCMS never specifically moved for

summary judgment on this claim. The Court’s finding that Lemay is not

actually disabled does not undermine Count V because she engaged in a

statutorily protected activity by requesting an accommodation and “need not

prove the underlying claim of discrimination which led to her protest, so long

as she had a reasonable good faith belief that the discrimination existed.”

Branscomb v. Sec’y of the Navy, 461 F. App’x 901, 905 (11th Cir. 2012) (citing

Meeks v. Comput. Assocs. Int’l, 15 F.3d 1013, 1021 (11th Cir. 1994)).

F. Counts VI-VII: FRCA Claims

Counts VI (Unlawful Discrimination/Retaliation in Violation of the

FCRA) and VII (Failure to Accommodate under the FCRA) mirror the ADA

claims. UCMS does not separately argue these FCRA claims,7 and disability

actions under the FCRA are analyzed under the same framework as the ADA.

Matamoros v. Broward Sheriff’s Off., 2 F.4th 1329, 1336 (11th Cir. 2021).

7 UCMS’s only comment on Lemay’s FCRA claims is that if the Court grants summary

judgment for UCMS on Lemay’s ADA claims, the Court must also grant summary judgment

for UCMS on Lemay’s FCRA claims. (Doc. 47 at 21).

Accordingly, the Court’s discussion of Lemay’s ADA claims applies to her

FCRA claims.

G. Count VIII: Violation of Section 510 ERISA

A plaintiff needs to exhaust her administrative remedies before bringing

her ERISA claim in federal court. Lanfear v. Home Depot, Inc., 536 F.3d 1217,

1223 (11th Cir. 2008). Lemay concedes that she has not done so,8 but argues

that exhaustion should not be required in the Eleventh Circuit. (Doc. 52 at 18-

V19). That is not for this Court to decide, so summary judgment is granted in

favor of UCMS on Lemay’s ERISA claim (Count VIII).

Conclusion

The Court denies summary judgment as to Counts I and II. The Court

grants summary judgment as to Lemay’s actual disability theory for her ADA

claims in Counts III-V and her FCRA claims in Counts VI and VII but

otherwise denies summary judgment and allows Lemay to proceed to trial

under her regarded as and record of disability theories. Further, the Court

grants summary judgment in favor of UCMS on Lemay’s ERISA claim in Count

VIII.

8 While not expressly conceded, Lemay agrees with summary judgment on this Count: “With

the exception of the ERISA § 510 claim, Plaintiff respectfully requests that the Court deny

Defendant’s Motion on all other causes of action.” (Doc. 52 at 19).

Accordingly, it is now

ORDERED:

1. Defendant UCMS, LLC’s Motion for Summary Judgment (Doc. 47) is

GRANTED in part and DENIED in part. Summary judgment is

GRANTED only as to Plaintiffs theory of actual disability for Counts

II-VI and GRANTED as to Count VIII. The Motion is otherwise

DENIED.

2. This case is REFERRED to United States Magistrate Judge Nicholas

P. Mizell for a settlement conference. On or before May 31, 2024, the

parties must contact Judge Mizell’s courtroom deputy, Wendy

Winkle, to coordinate availability for the conference.

DONE and ORDERED in Fort Myers, Florida on May 21, 2024.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record

22