Marrero v. Amazon.com Services LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 23-20601-CIV-ALTONAGA/Damian

MILAINE MARRERO,

Plaintiff,

v.

AMAZON.COM SERVICES LLC,

Defendant.

________________________________/

ORDER

THIS CAUSE came before the Court upon Defendant, Amazon.com Services LLC’s

Motion for Summary Judgment [ECF No. 18], filed on November 16, 2023. Plaintiff, Milaine

Marrero filed a Response [ECF No. 24]; to which Defendant filed a Reply [ECF No. 29]. The

Court has carefully considered the record, the parties’ written submissions,1 and applicable law.

For the following reasons, the Motion is granted in part and denied in part.

I. BACKGROUND

This case arises from Defendant’s alleged violations of the Americans with Disabilities

Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., and the Family and Medical Leave Act of 1993

(“FMLA”), 29 U.S.C. § 2601 et seq., in its treatment of Plaintiff — its former fulfillment associate

employee. (See generally Compl. [ECF No. 1]; see also SOF ¶ 7; Resp. SOF ¶ 7).

1 The parties’ factual submissions include Defendant’s Concise Statement of Undisputed Material Facts in

Support of Defendant’s Motion for Final Summary Judgment (“SOF”) [ECF No. 19]; Defendant’s Notice

of Filing Transcripts Referenced in Defendant’s Concise Statement of Undisputed Material Facts (“Def.’s

App.”) [ECF No. 20]; Plaintiff’s Response to Defendant’s Statement of Facts and Incorporated Statement

of Undisputed Facts (“Resp. SOF”) [ECF No. 25]; Plaintiff’s Appendix of Exhibits Referenced in Plaintiff’s

Statement of Material Facts (“Pl.’s App.”) [ECF No. 26]; Defendant’s Reply to Plaintiff’s Response to

Defendant’s Concise Statement of Undisputed Material Facts in Support of its Motion for Summary

Judgment (“Reply SOF”) [ECF No. 30]; and supporting exhibits.

On April 12, 2021, Plaintiff visited Dr. Aldo Lujan Jr. for severe pain, swelling, and

bleeding in her upper gums. (See Resp. SOF ¶ 100; Pl.’s App., Ex. 1, Lujan Dep. [ECF No. 26-1]

15:8–16).2 Dr. Lujan diagnosed Plaintiff with a large periapical pathology, i.e., an abscess, and

gum infection, requiring extraction of five teeth. (See SOF ¶ 11; Resp. SOF ¶ 11; Lujan Dep.

18:17–23, 28:7–10). Plaintiff had radiographic bone loss and “needed to do something” about her

condition, because she was very uncomfortable, in pain, and unable to eat. (SOF ¶ 12 (citation

and quotation marks omitted); see Resp. SOF ¶ 12; see also Lujan Dep. 19:15–20:14).

On April 30, 2021, Plaintiff contacted Defendant’s Disability and Leave Services

department (“DLS”) to request a leave of absence from May 16, 2021 through June 6, 20213 (see

SOF ¶ 14; Resp. SOF ¶¶ 14, 109; Reply SOF ¶ 109); DLS found her eligible for FMLA leave from

May 16, 2021 through June 5, 2021 (see SOF ¶ 15; Resp. SOF ¶ 15). Plaintiff underwent surgery

to extract five teeth on May 14, 2021. (See SOF ¶ 19; Resp. SOF ¶ 19). On that same day, Dr.

Lujan submitted a note to Defendant stating that Plaintiff needed to rest and could return to work

in two weeks. (See SOF ¶ 20; Resp. SOF ¶ 20; Pl.’s App., Ex. 29, May 14, 2021 Note [ECF No.

26-29]). Thereafter, DLS approved Plaintiff for leave only through May 28, 2021 — pursuant to

Dr. Lujan’s May 14, 2021 Note — and advised that she was expected to return to work on May

29, 2021. (See SOF ¶¶ 20–22; Resp. SOF ¶¶ 20–22, 122; Reply SOF ¶ 122).

2 The Court uses the pagination generated by the electronic CM/ECF database, which appears in the headers

of all court filings. Citations to deposition testimony rely on the pagination and line numbering in the

original document.

3 The parties disagree on the expected end date of Plaintiff’s leave of absence — Defendant says it was

June 5, 2021. (See Reply SOF ¶ 109).

CASE NO. 23-20601-CIV-ALTONAGA/Damian

At Plaintiffs follow-up appointment on May 26, 2021, Dr. Lujan determined Plaintiff was

still healing, had discomfort, and could not eat. (See Lujan Dep. 31:10-32:16). On May 28, 2021,

Dr. Lujan submitted the following note to Defendant:

RETURN TO WORK On SCHOOL

=. i: Flagler os) lial

APT ae Pe

(Pl.’s App., Ex. 40, May 28, 2021 Note [ECF No. 26-40]; SOF § 29). The parties dispute the

meaning of this Note. Defendant argues Dr. Lujan conveyed Plaintiff was ready to return to work

as of the Note’s date because he filled in the blank after “able to return to work on ” with

“office.” (SOF § 29 (quotation marks and citation omitted); see Reply SOF § 128). Plaintiff insists

the Note was a request for extension of leave because the remarks section states Plaintiff was to

rest for three additional weeks. (See Resp. SOF ¶ 128; see also Resp. 9).4

Plaintiff called DLS on two separate occasions to check the status of what she considered

the request for extension of leave as communicated through the May 28, 2021 Note. (See Resp.

SOF ¶¶ 129, 131; Reply SOF ¶¶ 129, 131; see also Pl.’s App., Exs. 42, 44, Employee

Conversations [ECF No. 29-42, 29-44]). Per Dr. Lujan’s instruction, Plaintiff continued to stay

home and rest after May 28, 2021, despite not being approved for leave beyond that date. (See

SOF ¶ 42; Resp. SOF ¶ 42).

Plaintiff’s absence from work triggered Defendant’s job abandonment process, which

occurs “when an associate does not show up for work for three consecutive shifts without

contacting” Defendant. (SOF ¶ 43 (citation omitted); see Resp. SOF ¶ 43 (disputing Defendant’s

characterization of the attendance policy)). Defendant sent Plaintiff emails advising her of the risk

of job abandonment (see SOF ¶¶ 44–45, 47–49), but Plaintiff did not communicate with Defendant

beyond the May 28, 2021 Note and her telephone calls with DLS checking on the status of her

leave request (see Resp. SOF ¶¶ 44–45, 47–49, 128–29, 131; Reply SOF ¶¶ 128–29, 131).

On June 6, 2021, DLS case assistant Vershanda Williams was assigned Plaintiff’s case.

(See Resp. SOF ¶ 133; Reply SOF ¶ 133). Williams determined that Plaintiff was released to

return to work as of May 28, 2021 and had “active punches” in the system — meaning Plaintiff

was in active status in the system. (Resp. SOF ¶ 134; see SOF ¶¶ 35, 39; Resp. SOF ¶¶ 35, 39,

134; Reply SOF ¶ 134; see also Pl.’s App., Ex. 4, Final Hr’g Tr. [ECF No. 26-4] 202:16–204:2).

4 The parties also dispute the severity of Plaintiff’s limitations. For example, according to Defendant,

Plaintiff resumed work as a Lyft driver on May 20, 2021 (see SOF ¶ 30), but Plaintiff states she attempted

to work and “was in too much pain and was unable to do so” (Resp. SOF ¶ 30 (indicating Plaintiff worked

at Lyft for four hours on May 20, 2021, and ten minutes on May 21, 2021, and did not work at Lyft again

until June 24, 2021)).

Human Resources coordinator, Kiara Schulz, took over the case on June 10, 2021; she was

responsible for reviewing cases to make sure the associate was not requesting an extension, and

she confirmed Williams’s findings. (See SOF ¶¶ 52–55; Resp. SOF ¶¶ 52–55 (disputing the

coordinator’s job duties but not her findings); see also Schulz Dep. 36:9–13). Defendant

terminated Plaintiff on June 10, 2021. (See SOF ¶ 58; Resp. SOF ¶ 58).

On August 10, 2021, Plaintiff filed a charge of discrimination against Defendant with the

Florida Commission on Human Relations (“FCHR”) and United States Equal Opportunity

Commission (“EEOC”). (See SOF ¶ 66; Resp. SOF ¶ 66). On January 24, 2022, the FCHR issued

its decision stating there was no reasonable cause to believe any unlawful employment practice

occurred. (See SOF ¶ 69; Resp. SOF ¶ 69). The parties participated in an administrative hearing

before an Administrative Law Judge (“ALJ”), who issued an order with the same finding. (See

SOF ¶ 77; Resp. SOF ¶ 77). The FCHR later adopted the ALJ’s order, as did the EEOC. (See

SOF ¶ 80; Resp. SOF ¶ 80).

Plaintiff filed this lawsuit on February 14, 2023, alleging claims of FMLA interference

(Count I), FMLA retaliation (Count II), failure to accommodate under the ADA (Count III),

disability discrimination under the ADA (Count IV), and ADA retaliation (Count V). (See

generally Compl.). Defendant raised several defenses, including that Plaintiff’s claims are

collaterally estopped as a result of the state agency proceedings. (See Answer and Statement of

Affirmative Defenses [ECF No. 6] 11; Mot. 8–9). Defendant moves for summary judgment on its

estoppel defense and on all claims. (See generally Mot.).

II. LEGAL STANDARD

“A party may move for summary judgment, identifying each claim or defense — or the

part of each claim or defense — on which summary judgment is sought.” Fed. R. Civ. P. 56(a).

Summary judgment may be rendered if the pleadings, discovery and disclosure materials on file,

and any affidavits show there is no genuine dispute of any material fact and the movant is entitled

to judgment as a matter of law. See id. 56(a), (c). An issue of fact is “material” if it might affect

the outcome of the case under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). A dispute of fact is “genuine” if the evidence could lead a reasonable jury to find

for the non-moving party. See id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986). The Court draws all reasonable inferences in favor of the party opposing

summary judgment. See Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000).

If the moving party bears the burden of proof on the relevant issue at trial, it can meet its

summary judgment burden only “by presenting affirmative evidence showing the absence of a

genuine issue of material fact — that is, facts that would entitle it to a directed verdict if not

controverted at trial.” Emery v. Talladega Coll., 169 F. Supp. 3d 1271, 1280–81 (N.D. Ala. 2016)

(citing Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993)). With that showing

made, the moving party “is entitled to summary judgment unless the non-moving party, in

response, comes forward with significant, probative evidence demonstrating the existence of a

triable issue of fact.” Fitzpatrick, 2 F.3d at 1115 (alterations adopted; quoting United States v.

Four Parcels of Real Prop., 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc)).

If the non-moving party bears the burden of proof at trial, the moving party may obtain

summary judgment simply by: (1) establishing the nonexistence of a genuine issue of material fact

as to any essential element of a non-moving party’s claim and (2) showing the court there is

insufficient evidence to support the non-moving party’s case. See Blackhawk Yachting, LLC v.

Tognum Am., Inc., No. 12-Civ-14209, 2015 WL 11176299, at *2 (S.D. Fla. June 30, 2015). “Once

the moving party discharges its initial burden, a non-moving party who bears the burden of proof

must cite to . . . materials in the record or show that the materials cited do not establish the absence

or presence of a genuine dispute.” Id. (alteration added; quotation marks omitted; quoting Fed. R.

Civ. P. 56(c)(1)).

III. DISCUSSION

Defendant first seeks summary judgment on its collateral estoppel affirmative defense,

arguing Plaintiff’s ADA claims are collaterally estopped as a result of the determinations made by

the ALJ (see Mot. 9–10); Defendant also argues it is entitled summary judgment on all of

Plaintiff’s claims (see generally Mot.). The Court first addresses Defendant’s collateral estoppel

arguments before turning to the merits of each of Plaintiff’s five claims.

A. Collateral Estoppel

Defendant insists Plaintiff is collaterally estopped from raising her ADA claims because

the factual issues underlying the claims were fully litigated before the FCHR. (See Mot. 8–9).

According to Plaintiff, collateral estoppel does not apply to unreviewed state administrative

proceedings on ADA claims. (See Resp. 3–4). Because collateral estoppel is an affirmative

defense, see Fed. R. Civ. P. 8(c)(1); Richards v. Sen, 825 F. Supp. 2d 1259, 1262 (S.D. Fla. 2010),

Defendant has the burden of proof, see In re Rawson Food Serv., Inc., 846 F.2d 1343, 1349 (11th

Cir. 1988) (“[I]t is well established that the party asserting an affirmative defense usually has the

burden of proving it.” (alteration adopted; other alteration added; quotation marks and citation

omitted)).

The collateral estoppel doctrine precludes “relitigation of particular issues which were

actually litigated and decided in a prior suit.” Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d

1498, 1501 (11th Cir. 1990) (citations and footnote call number omitted). The doctrine extends to

decisions made by state agencies acting in a judicial capacity. See Quinn v. Monroe Cnty., 330

F.3d 1320, 1329 (11th Cir. 2003).

In University of Tennessee v. Elliott, the Supreme Court identified an exception to this rule

— unreviewed state agency findings are not entitled to preclusive effect in Title VII actions in

federal court. See 478 U.S. 788, 795–96 (1986) (relying in large part on 42 U.S.C. section 2000e-

5(b)’s requirement that the EEOC give state decisions “substantial weight” — not preclusive

effect — in Title VII actions). The Supreme Court has not yet dealt with the preclusive effect of

collateral estoppel in ADA cases but has extended the Elliott exception to Age Discrimination in

Employment Act cases. See Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 110–11

(1991). Several circuits have extended the Elliott exception to ADA claims, see Thomas v.

Contoocook Valley Sch. Dist., 150 F.3d 31, 39 n.5 (1st Cir. 1998); Medeiros v. City of San Jose,

No. 98-cv-16530, 1999 WL 613405, at *1 (9th Cir. Aug. 12, 1999) (“Unreviewed state agency

findings are not afforded preclusive effect in ADA actions.” (citations omitted)); Smith v. Perkins

Bd. of Educ., 708 F.3d 821, 827–28 (6th Cir. 2013) (“[C]ommon law collateral estoppel principles

do not apply to claims brought under the ADA[.]” (alterations added)); but the Eleventh Circuit

has not yet opined on the issue.

The Court agrees with Plaintiff — the ALJ’s determination is not entitled preclusive effect

because it was not reviewed by a state court.5 “[T]he weight of authority” holds that “unreviewed

state administrative decisions cannot have preclusive effect on ADA claims.”6 Howard v. Steris

5 There is no dispute that the ALJ’s determination was not reviewed by a state court. (See Resp. 4 (quoting

McInnes v. California, 943 F.2d 1088, 1093–94 (9th Cir. 1991); other citations omitted); Reply 4). Further,

Defendant’s contention that Plaintiff’s ADA claims are barred because she failed to “ask a Florida appellate

court to review the ALJ findings” is incorrect. (Reply 4). The ADA does not require a plaintiff to exhaust

her claims fully through state appellate processes before filing a claim in federal court — the only

requirement is that the plaintiff file a charge with the EEOC. See Snoddy v. Prince George’s Cnty. Gov’t,

No. 21-2528-Civ, 2023 WL 5509323, at *4 (D. Md. Aug. 24, 2023) (citing 42 U.S.C. § 2000e-5(e)(1)).

Plaintiff did so. (See SOF ¶ 66; Resp. SOF ¶ 66).

6 Defendant’s examples of cases applying collateral estoppel to agency decisions of Title VII claims are

irrelevant as they all involve decisions reviewed by state courts. (See Reply 3 (citing Andela v. Univ. of

Miami, 692 F. Supp. 2d 1356, 1372 (S.D. Fla. 2010); Cataldo v. St. James Episcopal Sch., 213 F. App’x

Corp., 886 F. Supp. 2d 1279, 1290 (M.D. Ala. 2012) (alteration added); see also Gatewood v.

Unlimited Path, Inc., No. 18-cv-66, 2019 WL 920912, at *2 (N.D. Fla. Jan. 17, 2019), report and

recommendation adopted, 2019 WL 919597 (N.D. Fla. Feb. 25, 2019). “The analysis is

straightforward because the ADA explicitly incorporates all of the enforcement powers, remedies,

and procedures of Title VII[,]” including those Elliott relied on. Smith, 708 F.3d at 828 (alteration

added; citing 42 U.S.C. § 12117). The Court thus denies summary judgment on Defendant’s

affirmative defense of collateral estoppel.

B. FMLA Interference

Plaintiff’s first claim is that Defendant violated her FMLA rights (Count I). (See Compl.

¶¶ 31–44). Under the FMLA, employees are entitled to to “12 workweeks of leave during any 12-

month period . . . [b]ecause of a serious health condition that makes the employee unable to

perform the functions” of her job position. 29 U.S.C. § 2612(a)(1)(D) (alterations added). To

prove FMLA interference, an employee must show that her employer “denied or otherwise

interfered with” her substantive rights under the act. Strickland v. Water Works & Sewer Bd., 239

F.3d 1199, 1206 (11th Cir. 2001) (citation omitted). Defendant insists Plaintiff does not provide

sufficient evidence to establish an FMLA interference claim because she (1) did not have a serious

health condition and (2) cannot show Defendant denied her any benefit she was entitled to under

the FMLA. (See Mot. 14).

Serious Health Condition. The FMLA defines serious health condition as “an illness,

injury, impairment, or physical or mental condition” involving “(A) inpatient care . . . ; or

(B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11) (alteration added).

966, 967 (11th Cir. 2007); Makere v. Allstate Ins. Co., No. 20-cv-905, 2023 WL 4107107, at *1 (M.D. Fla.

June 21, 2023))).

Defendant insists Plaintiff’s condition cannot be a serious health condition because according to

the FMLA regulations, “periodontal disease ordinarily do[es] not meet the definition of a serious

health condition[.]” (Mot. 14–15 (alterations added; emphasis omitted; citing 29 C.F.R. §

825.113(d))). Defendant states Plaintiff’s condition was not serious, because the expected

recovery time was only three to four weeks. (See id. 15). Further, Dr. Lujan testified Plaintiff

required no further treatment;7 and Plaintiff resumed working for Lyft shortly after her surgery —

a “fact” Plaintiff disputes. (See id.; Resp. SOF ¶ 30 (indicating Plaintiff worked at Lyft for four

hours on May 20, 2021, and ten minutes on May 21, 2021, and did not work at Lyft again until

June 24, 2021)).

Plaintiff insists she meets her evidentiary burden for establishing a serious health condition.

According to Plaintiff, she received continuing treatment for her periodontal disease from April

12, 2021 until June 9, 2021; and although her condition may not be permanent, it could create a

life-threatening condition if left untreated. (See Resp. 15–16). The Court agrees with Plaintiff.

Under the FMLA, a condition may qualify as a serious health condition involving

continuing treatment if it involves a “period of incapacity of more than three consecutive, full

calendar days” and at least two or more subsequent treatments within 30 days of the initial

incapacity. 29 C.F.R. § 825.115(a)(1) (alterations added). Plaintiff provides evidence she was

incapacitated for two weeks following her surgery on May 14, 2021 (see Resp. 16 (citing Resp.

SOF ¶ 118; other citation omitted); see also May 14, 2021 note (instructing Plaintiff to rest for two

weeks)), and that she visited Dr. Lujan twice after becoming incapacitated (see Resp. SOF ¶¶ 117,

128).

7 Defendant omits any citation to the record for this assertion. (See Mot. 15).

Admittedly, “periodontal disease” or “routine dental . . . problems” “[o]rdinarily” do not

qualify absent “complications[.]” 29 C.F.R. § 825.113(d) (alterations added). Yet, Plaintiff

provides evidence of complications, including radiographic bone loss and a large periapical

pathology abscess in at least two of her teeth, leading to extraction of her upper maxillary teeth.

(See Resp. SOF ¶ 104; Lujan Dep. 18:19–19:19).8 Further, courts have considered periodontal

disease a “serious medical condition” in other contexts. Rucano v. Koenigsmann, 12-cv-00035,

2014 WL 1292281, at *9–10 (N.D.N.Y. Mar. 31, 2014) (accepting periodontal disease as a

“serious medical condition” in the context of a prisoner case arising under 42 U.S.C. section 1983

(citations omitted)); see Board v. Farnham, 394 F.3d 469, 483 n.7 (7th Cir. 2005) (same).

Nonetheless, Defendant attempts to analogize Plaintiff’s condition to the employee’s in

Flanagan v. Keller Products Inc. (see Mot. 15 (citing No. 00-542-Civ, 2002 WL 313138, *6–8

(D.N.H. Feb. 25, 2002))), which is inapt. The employee there sought to prove her dental condition

was a serious health condition because it was a “chronic” illness, Flanagan, 2002 WL 313138, at

*6 (quotation marks omitted), which involves a different subsection of the applicable regulation.

Compare 29 C.F.R. § 825.115(c) with id. § 825.115(a). Unlike here, the employee in Flanagan

lacked evidence that she was incapacitated for more than three consecutive calendar days, so she

could not proceed under section 825.115(a). See Flanagan, 2022 WL 313138, at *6.

In short, while dental disease sometimes may not rise to the severity required for FMLA

protection, that does not imply dental disease can never create eligibility under the FMLA.

Plaintiff presents evidence she was incapacitated for at least the minimum duration required by the

8 Dr. Lujan testified that Plaintiff’s condition could become life-threatening if left untreated. (See Resp.

SOF ¶ 105; Lujan Dep. 19:20–23). Whether this testimony is admissible at trial is the subject of one of

Defendant’s Motions in Limine [ECF No. 33], but Defendant has not objected to the admissibility of the

evidence in its summary judgment briefing (see generally Mot.; Reply; Reply SOF).

statute and that her condition was “serious.” As such, she creates a triable issue of fact on this

issue.

Denial of Benefits. Defendant next argues Plaintiff did not request leave, certified by her

dentist, after May 28, 2021, meaning there was no benefit for Defendant to deny. (See Mot. 15–

16). According to Plaintiff, she originally requested extended FMLA leave by submitting the May

28, 2021 note and followed up in her June 1 and 2, 2021 telephone conversations with Defendant’s

DLS agents. (See Resp. SOF ¶¶ 128–129, 131). The parties present two conflicting inferences

from the Note and telephone calls (see generally Mot.; Resp.) — demonstrating a genuine dispute

of material fact.

Accordingly, summary judgment on Count I is denied.

C. Failure to Accommodate and Disability Discrimination Under the ADA

Before turning to the parties’ arguments on the ADA claims, the Court first notes that

Plaintiff’s claims of failure to accommodate (Count III) and disability discrimination (Count IV)

under the ADA (see Compl. ¶¶ 57–70) are essentially the same. The Court explains.

To prevail on an ADA failure to accommodate claim, a plaintiff must demonstrate (1) she

was a qualified individual with a disability; (2) she made a request for reasonable accommodation;

and (3) her employer failed to provide the reasonable accommodation. See D’Onofrio v. Costco

Wholesale Corp., 964 F.3d 1014, 1021 (11th Cir. 2020) (citation omitted) (applying the ADA

framework to a Florida Civil Rights Act claim). Similarly, to prevail on a disability discrimination

claim, a plaintiff must prove she “(1) is disabled, (2) is a qualified individual, and (3) was

discriminated against because of her disability.” Lewis v. City of Union City, 934 F.3d 1169, 1179

(11th Cir. 2019) (citation omitted).

These claims are closely related, because in an ADA case, an employee can prove

discrimination by “an employer’s failure to reasonably accommodate an ‘otherwise qualified’

disabled employee[,]” unless the employer can show “undue hardship.” Holly v. Clairson Indus.,

L.L.C., 492 F.3d 1247, 1249 (11th Cir. 2007) (alteration added; quotation marks omitted); see also

Boyle v. City of Pell City, 866 F.3d 1280, 1289 (11th Cir. 2017) (citation omitted) (same); 42

U.S.C. § 12112(b)(5)(A) (same). Given the significant overlap between failure to accommodate

and disability discrimination claims, the Court considers Counts III and IV together.

Defendant argues summary judgment is warranted on both claims because Plaintiff cannot

show she is disabled or a qualified individual, or that Defendant failed to grant her an

accommodation. (See Mot. 9–13). Plaintiff maintains she presents sufficient evidence to establish

a genuine issue of fact as to whether she was disabled, qualified, and given an accommodation.

(See Resp. 5–13). The Court considers the parties’ competing positions.

Disability. To qualify as disabled under the ADA, a plaintiff must (1) have a physical or

mental impairment that substantially limits one or more major life activities (including but 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); (2) have a record of such impairment; or (3) be regarded as having

such impairment. See 42 U.S.C. §§ 12102(1), (2)(a).

Defendant asserts the “evidence does not show” Plaintiff’s gum infection “substantially

limited any major life activities[,]” and Plaintiff thus cannot show she is disabled under the ADA.

(Mot. 10 (alteration added)). According to Defendant, Plaintiff only had “garden-variety

restrictions” after her surgery; and Plaintiff resumed working as a driver for Lyft only one week

after her surgery. (Id. 11 (citing SOF ¶ 30)). Additionally, Defendant construes Dr. Lujan’s May

28, 2021 Note as indicating Plaintiff could return to work. (See id.; SOF ¶ 29).

Plaintiff maintains that she experienced severe pain and was (and still is) substantially

limited in her ability to eat, communicate with others, and work. (See Resp. 7–8; see also Lujan

Dep. 38:13–14, 51:6–13, 75:25–76:20; Pl.’s App., Ex. 6, Marrero Dep. [ECF No. 26-6] 165:16–

20, 169:5–7; 188:21–24). Plaintiff also disputes whether she returned to work for Lyft after her

surgery — she says she tried to but “was in too much pain and was unable to do so.” (Resp. SOF

¶ 30). Further, Plaintiff contests Defendant’s interpretation of the May 28, 2021 Note, claiming it

instructs Plaintiff to wait three weeks before returning to work. (See id. ¶ 29).

These competing interpretations of the evidence demonstrate the existence of a genuine

dispute of material fact as to the seriousness of Plaintiff’s injuries and how much they affected her

life. Plaintiff has presented evidence that she was substantially limited in her ability to work and

perform certain tasks (see Resp. 7–8; Resp. SOF ¶ 118; Lujan Dep. 38:13–14, 51:6–13, 75:25–

76:20; Marrero Dep. 165:16–20, 169:21–170:2), and also has a medical record of such impairment

(see May 28, 2021 Note). While the parties present conflicting inferences to be drawn from this

evidence, as Defendant surely knows, the Court must draw all reasonable inferences in Plaintiff’s

favor, not Defendant’s. See Chapman, 229 F.3d at 1023; see also Whelan v. Royal Caribbean

Cruises Ltd., No. 12-cv-22481, 2013 WL 5583970, at *2 (S.D. Fla. Aug. 14, 2013) (“Summary

judgment may be inappropriate even where the parties agree on the basic facts[] but disagree about

the inferences that should be drawn from these facts.” (alteration added; citation omitted)).

Qualified Individual. To be a qualified individual under the ADA, a plaintiff must be able

to perform the essential functions of employment, with or without reasonable accommodation. See

42 U.S.C. § 12111(8). A plaintiff bears both the burden of identifying an accommodation that

would allow her to perform the essential functions of her job and of persuading such

accommodation is reasonable. See Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d

1278, 1286 (11th Cir. 1997) (citation omitted).

Plaintiff states she would have been able to perform her job if given the leave necessary to

complete her treatment. (See Resp. 8–9). According to Plaintiff, she requested an extension of

her leave by submitting the May 28, 2021 Note and followed up in telephone calls with

Defendant’s DLS agents. (See Resp. SOF ¶¶ 128–129, 131).

Defendant argues Plaintiff never requested extended leave. According to Defendant, even

if the May 28, 2021 Note were a request for extended leave, it would be a request for “open-ended,

indefinite leave[,]” which is “unreasonable as a matter of law[.]” (Mot. 12 (alterations added)).

Notably, Defendant does not dispute that Plaintiff spoke on the telephone with Defendant’s DLS

agents about her leave request. (See Reply SOF ¶¶ 129, 131).

Certainly, an indefinite leave of absence would not be a reasonable accommodation. See

Wood v. Green, 323 F.3d 1309, 1312–14 (11th Cir. 2003). But in general, “leaves of absence can

be reasonable accommodations under the ADA.” Hargrove v. Ladson, No. 23-020-Civ, 2023 WL

2254691, at *2 (S.D. Ga. Jan. 26, 2023) (citation omitted), report and recommendation adopted,

2023 WL 2245109 (S.D. Ga. Feb. 27, 2023); see also Richio v. Miami-Dade Cnty., 163 F. Supp.

2d 1352, 1365 (S.D. Fla. 2001) (“Under the ADA, the term ‘reasonable accommodation’ may

include . . . an extended leave of absence” (alteration added; citing Stewart, 117 F.3d at 1285; other

citations and footnote call number omitted)).

Essentially, the parties dispute whether Plaintiff sought leave by submitting the May 28,

2021 Note, and if so, whether she sought only three weeks or an indefinite leave of absence. (See

Mot. 11–12; Resp. 8–9). These are factual questions for the jury to decide. And whether three

weeks of leave is reasonable is also a question for the factfinder. See Alumni Cruises, LLC v.

Carnival Corp., 987 F. Supp. 2d 1290, 1306 (S.D. Fla. 2013) (“Generally, whether a proposed

modification is ‘reasonable’ presents a question of fact.” (citations omitted)); Sawinski v. Bill

Currie Ford, Inc., 881 F. Supp. 1571, 1574–75 (M.D. Fla. 1995) (citation omitted).

Causation. Finally, Defendant argues Plaintiff fails to establish any discrimination caused

by her disability. (See Mot. 12). According to Defendant, Plaintiff’s employment was terminated

because she failed to return to work, not because of disability-based animus. (See id.). As

explained, “an employer’s failure to reasonably accommodate an ‘otherwise qualified’ disabled

employee” constitutes unlawful discrimination unless the employer can show “undue hardship.”

Holly, 492 F.3d at 1249 (quotation marks omitted); see also 42 U.S.C. § 12112(b)(5)(A). The

Court has already concluded there is a material dispute of fact as to whether (1) Plaintiff requested

an accommodation and (2) whether such requested accommodation was reasonable. Since

Defendant does not argue it would experience undue hardship (see generally Mot.), its causation

argument is unavailing, see Holly, 492 F.3d at 1249.

Having rejected each of Defendant’s arguments regarding Counts III and IV, summary

judgment is denied as to these claims.

D. Retaliation

Last, Defendant seeks summary judgment on Plaintiff’s FMLA and ADA retaliation claims

(Counts II and V, respectively) because: (1) Plaintiff did not engage in any statutorily protected

activity; and (2) Plaintiff’s termination was a result of her job abandonment, not retaliatory animus.

(See Mot. 13–14, 16–18). According to Plaintiff, Defendant ignored her request for extension of

FMLA leave and then terminated her; Plaintiff argues this is sufficient evidence to survive

summary judgment. (See Resp. 20–22).9

Defendant further contends Plaintiff is required to — and fails to — satisfy the McDonnell

Douglas burden-shifting framework to survive summary judgment on her FMLA retaliation claim.

(See Mot. 16 (referencing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); other citations

omitted)). Under the framework, an employee must establish a prima facie case for retaliation by

demonstrating (1) she “engaged in statutorily protected activity;” (2) “suffered an adverse

employment action;” and (3) “the decision was causally related to the protected activity.”

Strickland, 239 F.3d at 1207 (citation omitted). Once an employee establishes the prima facie

case, the burden shifts to the employer to put forth evidence of a legitimate non-discriminatory

reason for the adverse employment action. See Fonte v. Lee Mem’l Health Sys., No. 20-13240,

2021 WL 5368096, at *4 (11th Cir. Nov. 18, 2021). If the employer does so, the burden shifts

back to the employee to provide sufficient evidence the proffered reason was pretextual. See id.

Plaintiff attempts to sidestep the McDonnell Douglas standard — entirely declining to

make a case under it — and instead requests the Court consider her case under a “mixed-motive”

framework. (Resp. 19–20 (citations and footnote call number omitted)). Under the mixed-motive

theory, an employee can prevail by showing protected activity was a motivating factor for an

adverse employment action, even if other factors also motivated the action. See Quigg v. Thomas

Cnty. Sch. Dist., 814 F.3d 1227, 1237–39 (11th Cir. 2016) (citations omitted). This contrasts with

9 Plaintiff only responds regarding her FMLA retaliation claim. (See generally Resp.; see also id. 22 (only

addressing ADA discrimination, ADA failure to accommodate, FMLA interference, and FMLA

retaliation)). “Where . . . [a] non-movant fails to address a particular claim asserted in the summary

judgment motion[] but has responded to other claims made by the movant, the district court may properly

consider the non-movant’s default as intentional, and therefore consider the claim abandoned.” Reid v.

Hasty, No. 07-cv-2475, 2009 WL 10711917, at *9 n.12 (N.D. Ga. Nov. 5, 2009) (alterations added).

Summary judgment is thus granted on Count V.

McDonnell Douglas, which requires an employee to demonstrate the employer’s proffered reason

is false to prove pretext. See id. at 1237–38 (citations omitted); St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502, 515 (1993) (stating that to prove pretext, a plaintiff must show “both that the reason

was false, and that discrimination was the real reason” (emphases in original)).

The Court agrees with Defendant that McDonnell Douglas applies, and the mixed-motive

theory does not. To start, the Eleventh Circuit frequently applies McDonnell Douglas to FMLA

retaliation claims. See, e.g., Fonte, 2021 WL 5368096, at *4; Martin v. Brevard Cnty. Pub. Schs.,

543 F.3d 1261, 1268 (11th Cir. 2008). Plaintiff’s argument that a mixed-motive framework should

apply relies on a Title VII discrimination case (see Resp. 20 (citing Quigg, 814 F.3d at 1236; other

citation omitted)), but “it is well-established that the mixed-motive framework does not apply to

Title VII retaliation claims[,]” Yelling v. St. Vincent’s Health Sys., 82 F. 4th 1329, 1338 (11th Cir.

2023) (alteration and emphasis added; citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338,

360 (2013); footnote call number omitted). It is thus unlikely the Eleventh Circuit would extend

the mixed-motive framework to FMLA retaliation claims; indeed, the Eleventh Circuit has

declined to do so. See Fonte, 2021 WL 5368096, at *4. District courts have followed suit. See,

e.g., Pennell v. Judd, No. 19-cv-2433, 2022 WL 3345630, at *20 n.20 (M.D. Fla. Aug. 12, 2022).

Given the Eleventh Circuit’s refusal to apply a mixed-motive standard to Title VII and FMLA

retaliation claims, the Court considers Plaintiff’s claim under McDonnell Douglas.

Under McDonnell Douglas, Plaintiff must first demonstrate a prima facie case of

retaliation. See McDonnell Douglas Corp., 411 U.S. at 802. Plaintiff clearly does — (1) her

request for an extension of leave is statutorily protected action, (2) her termination was an adverse

employment action, and (3) the close temporal proximity of the two shows a causal link. See

Salem v. City of Port St. Lucie, 788 F. App’x 692, 696 (11th Cir. 2019) (“Close temporal proximity

between an employee’s protected conduct and the adverse action is generally sufficient to create a

genuine issue” as to causation in a prima facie case. (citation omitted)).

Next, Defendant must present evidence of a legitimate non-discriminatory reason, and it

does — “Plaintiff was terminated due to job abandonment consistent with [Defendant]’s policies.”

(Mot. 17 (alteration added); see also SOF ¶¶ 42–58).

Finally, to satisfy the third and last prong of McDonnell Douglas, Plaintiff must show the

reason was a “pretext to mask retaliation.” Mastaw v. W. Fla. Med. Ctr. Clinic, PA, No. 95-9135-

Civ, 2023 WL 5426757, at *3 (11th Cir. Aug. 23, 2023) (citation omitted). As discussed, to

sufficiently show Defendant’s reason is pretextual, Plaintiff must demonstrate it is false and the

true reason is discrimination. See Quigg, 814 F.3d at 1237–38 (citations omitted).

Problematically for Plaintiff, her reliance on a mixed-motive theory forecloses her success

under McDonnell Douglas. In support of her mixed-motive theory, Plaintiff states that Defendant

had “legitimate and non-legitimate reasons” for her termination. (Resp. 20). While some courts

allow plaintiffs to argue under both frameworks in the alternative, see Fye v. Okla. Corp. Comm’n,

516 F.3d 1217, 1225 (10th Cir. 2008), Plaintiff makes no effort to show Defendant’s “legitimate

reasons” are false (Resp. 20; see generally id.) and instead admits they are true.10 In short,

Plaintiff’s mixed-motive theory is “fatally inconsistent” with McDonnell Douglas. Quigg, 814

F.3d at 1237 (citation omitted). Since Plaintiff does not and cannot show Defendant’s proffered

10 The closest Plaintiff comes to refuting the legitimacy of Defendant’s proffered reason is arguing

Vershanda Williams, a DLS agent, falsely stated she had “active punches” on her file (Resp. 22), but

Plaintiff neither explains what that means nor connects it to any wrongdoing by Defendant (see generally

id.). Upon a closer look at the record, having “active punches” only means an employee is “active” and

“able to punch in and out,” not that she already returned to work. (Final Hr’g Tr. 202:16–24, 203:20–

204:2). This is consistent with Defendant’s argument and not refuted by the record. (See generally Mot.;

Resp.).

CASE NO. 23-20601-CIV-ALTONAGA/Damian

reason was pretextual, her FMLA retaliation claim fails.!! Summary judgment is therefore granted

as to Count II.

IV. CONCLUSION

Accordingly, it is

ORDERED AND ADJUDGED that Defendant, Amazon.com Services LLC’s Motion for

Summary Judgment [ECF No. 18] is GRANTED as to Counts II and V and DENIED as to Counts

I, Il, and IV.

DONE AND ORDERED in Miami, Florida, this 19th day of January, 2024.

(; uly. Wl. AL

CECILIA M. ALTONAGA

CHIEF UNITED STATES DISTRICT JUDGE

ce: counsel of record

'l While there is some evidence in the record that could conceivably show Defendant’s proffered reason for

termination was unworthy of belief, Plaintiff does not make this argument, and the Court will not make it

her. See Resolution Tr. Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“There is no burden

upon the district court to distill every potential argument that could be made based upon the materials before

it on summary judgment.” (citation omitted)).

20