# Lemay v. UCMS, LLC

> District Court, M.D. Florida · May 21, 2024

URL: https://www.frixlaw.com/law-library/cases/10116055

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** May 21, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10116055

## How later opinions describe it (automated extraction)

- 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”
- 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”
- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10116055. Public record. Not legal advice.