Hardin v. Oakley Transport Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

EUGENE HARDIN,

Plaintiff,

v. Case No: 8:21-cv-2980-MSS-AEP

OAKLEY TRANSPORT, INC. and

OAKLEY TRANSPORTATION

GROUP INC.,

Defendants.

ORDER

THIS CAUSE comes before the Court for consideration of Plaintiff’s Motion

for Partial Judgment on the Pleadings, (Dkt. 137), and Defendants’ response thereto.

(Dkt. 139) Also before the Court is Defendants’ Amended Motion for Summary

Judgment, (Dkt. 146), Plaintiff’s response thereto, (Dkt. 162), and Defendants’ reply,

(Dkt. 166), as well as Plaintiff’s Motion for Partial Summary Judgment, (Dkt. 165),

Defendants’ response thereto (Dkt. 170), and Plaintiff’s reply. (Dkt. 174) Upon

consideration of all relevant filings, case law, and being otherwise fully advised,

Plaintiff’s Motion for Partial Judgment on the Pleadings, (Dkt. 137), is DENIED,

Defendants’ Amended Motion for Summary Judgment is GRANTED IN PART and

DENIED IN PART, and Plaintiff’s Motion for Partial Summary Judgment is

DENIED.

I. BACKGROUND

A. Procedural Background

On December 27, 2021, Plaintiff Eugene Hardin, proceeding pro se, filed this

action against his former employer, Defendant Oakley Transport, Inc. (“Oakley

Transport”). (Dkt. 1) In a second amended complaint, Plaintiff joined Defendant

Oakley Transportation Group, Inc. (“Oakley Group”) as a defendant. (Dkt. 16)

Plaintiff alleged Oakley Transport is a subsidiary of Oakley Group. (Id. at ¶ 8) In his

sixth amended complaint (the “Complaint”), Plaintiff alleges Defendants committed

fraudulent misrepresentation (Count I), fraudulent inducement (Count II), fraudulent

concealment (Count III), and fraudulent filing of information returns in violation of

26 U.S.C. § 7434(a) (Count IV). (Dkt. 113) Plaintiff also seeks to recover for

Defendants’ alleged unjust enrichment (Count V). (Id.) Additionally, Plaintiff alleges

Oakley Transport willfully violated the Americans with Disabilities Act, 42 U.S.C. §

12101 et seq. (the “ADA”) (Counts VI, VII, VIII, and XIII), the Florida Civil Rights

Act, §§ 760.01–760.11 and 509.092, Fla. Stat. (the “FCRA”) (Counts IX, XI. And

XIV), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the

“ADEA”) (Count X), the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (the

“FMLA”) (Counts XII and XV), and the Florida Workers’ Compensation statute, §

440.01 et seq., Fla. Stat. (the “FWCA”) (Count XVI). (Id.) Plaintiff alleges Oakley

Transport willfully terminated Plaintiff’s employment because of his disability and

age, and in retaliation for his engaging in protected activities. (Id.)

Plaintiff moves for a judgment on the pleadings as to Counts I and II. (Dkt. 137)

Plaintiff also moves for summary judgment against Defendants as to all Counts except

Counts X and XI, his age discrimination claims. (Dkt. 165) Defendants move for

summary judgment on all of Plaintiff’s claims. (Dkt. 146)

B. Undisputed Material Facts

1. Plaintiff’s Employment & Pay

Defendant Oakley Transport is a trucking company that hired Plaintiff as a

truck driver in January 2018. (Dkt. 113 at 178; Dkt. 118 at 179) In connection with

Plaintiff’s hire, on January 22, 2018, Plaintiff executed the Driver Pay and Credential

Agreement (the “Pay Agreement”). (Dkt. 146-1 at 15; Dkt. 165-1 at 9) The Pay

Agreement provides: “As you agreed to during your hiring process here at Oakley

Transport, your Pay Rate effective at the completion of orientation and training will

be . . . : Flat Rate: [$]250.00 a day which includes $54 per day for per diem for all rates

from $200-$350 per day.” (Id.) Plaintiff signed the Pay Agreement. (Id.) Later, Plaintiff

signed a second Pay Agreement dated June 12, 2019, which increased the per diem

pay to $66 per day for all rates from $200 to $350 per shift. (Dkt. 146-1 at 16)

During Plaintiff’s employment, Plaintiff received Drivers Payroll Recap

Statements (the “Payroll Statements”). (Dkt. 165-1 at ¶ 13) The Payroll Statements

specified Plaintiff’s gross pay during the pay period, his pay rate, deductions, and the

amount of per diem compensation. (Id. at 27–89) Plaintiff’s W-2 form for 2018 lists

the amount he was paid for per diem allowances. (Dkt. 146-1 at 13)

2. Plaintiff’s Work-Related Injury, Workers’ Compensation

Claim & Termination

On September 1, 2018, Plaintiff suffered a work-related injury to his left knee at

Oakley Transport’s terminal in Conley, Georgia. (Dkt. 165-1 at ¶ 17; Dkt. 146-1 at ¶

20) After the injury, Plaintiff continued to work for Oakley Transport. (Dkt. 165-1 at

¶ 17; Dkt. 146-1 at ¶ 21)

On September 11, 2018, Plaintiff underwent an MRI of his knee. (Dkt. 165-1 at

¶ 17; Dkt. 146-1 at ¶ 22) One week later, on September 18, 2018, Plaintiff’s physician

instructed him not to return to work. (Id.; Dkt. 142-1 at 3–6) Plaintiff’s physician

indicated she believed Plaintiff’s injury—a torn meniscus—would require arthroscopic

surgical correction and subsequent physical therapy. (Id. at 5–6) The physician noted

that the surgical recovery would require Plaintiff to use crutches for three to four days,

and that it would take three to four weeks after the surgery for Plaintiff to regain full

strength to drive a tanker. (Id. at 6) The physician stated in her report, “We will go

forward with seeking approval from workers’ compensation . . . .” (Id.) Although

Defendant Oakley Transport, via its adjuster, paid the bill for Plaintiff’s September 18,

2018 examination and treatment, Defendant Oakley Transport and/or its adjuster

refused to authorize Plaintiff’s knee surgery. (Dkt. 113 at ¶¶ 204–05; Dkt. 118 at ¶¶

204–05)

Plaintiff’s physician signed a form stating Plaintiff could “return to regular duty

(truck driving)” beginning October 1, 2018, (Dkt. 142-1 at 7), and Plaintiff returned to

work at Oakley Transport. (Dkt. 165-1 at ¶¶ 18–19) Oakley Transport provided

Plaintiff a truck with automatic transmission, rather than one with manual

transmission. (Dkt. 113 at ¶ 213; Dkt. 118 at ¶ 213) Plaintiff earned safety bonuses for

each of the following months: February 2019, March 2019, April 2019, June 2019, and

July 2019. (Dkt. 165-1 at ¶ 19; Dkt. 118 at ¶ 218)

Nearly a year after Plaintiff injured his knee, on July 22, 2019, Plaintiff’s

physician placed Plaintiff on light duty work with a specific restriction of “no

loading/unloading.” (Dkt. 142-1 at 8) In the time between his injury and this new light

duty work restriction, the record indicates Plaintiff did not undergo any surgery.1

Kami Everitt, Oakley Transport’s HR Director, attested that Oakley Transport

employees who are unable to perform the essential functions of their jobs due to a

work-related injury are provided offers of temporary alternative modified work. (Dkt.

146-1 at ¶ 32) On August 7, 2019, Oakley Transport sent Plaintiff an offer of alternative

modified work to assist him in “transition[ing] back to [regular duty] work.” (Id. at

127) The letter advised Plaintiff of an opportunity to work as a facility assistant for

Arms Wide Open Community Development Corporation, a local nonprofit agency.

(Id.) Plaintiff’s assigned duties for Arms Wide Open would not violate his physician’s

restrictions of “no loading/unloading.” (Id.) The letter indicated Plaintiff’s temporary

work opportunity with Arms Wide Open was to begin on August 13, 2019. (Id.)

On August 13, 2019, Plaintiff advised his physician he could not drive due to

great pain in his knee. (Dkt. 142-1 at 9) The physician instructed Plaintiff not to return

1 Plaintiff underwent ten months of physical therapy to treat his knee. (Dkt. 165-1 at ¶ 21) The record

does not establish when this ten-month period of treatment took place.

to work and signed a workers’ compensation form stating Plaintiff “may not return to

work at this time.” (Id. at 9–10) Oakley Transport and/or its claims adjuster paid

workers’ compensation disability benefits to Plaintiff in August 2019. (Dkt. 113 at ¶

227; Dkt. 118 at ¶ 229)

On August 19, 2019, Plaintiff, through an attorney named Lloyd Basso, filed a

petition for workers’ compensation benefits with the state of Florida’s Office of the

Judges of Compensation Claims. (Dkt. 165-1 at 128–131) In the petition, Plaintiff

requested medical benefits as well as attorneys’ fees and costs under §§ 440.13 and

440.34, Florida Statutes. (Id.)

On September 23, 2019, Oakley Transport sent Plaintiff a second offer of

alternative modified work. (Dkt. 165-1 at 132) The letter advised Plaintiff of an

opportunity to work as a facility assistant for First Come Must Serve Thrift, a local

nonprofit agency (“Must Serve”). (Id. at 132–33) Plaintiff’s assigned duties for Must

Serve would not violate his physician’s restrictions of “no loading/unloading.” (Id. at

133) The letter indicated Plaintiff’s temporary work opportunity with Must Serve was

to begin on September 30, 2019. (Id. at 132)

On October 8, 2019, Plaintiff’s physician authorized Plaintiff to return to work

on a light duty restriction. (Dkt. 142-1 at 13) For reasons that are unclear from the

record, but perhaps related to Plaintiff’s only having been cleared for light duty work,

Oakley Transport sent Plaintiff a third offer to perform alternative modified work for

Must Serve on October 10, 2019. (Dkt. 165-1 at 137) This letter indicated the

opportunity began on October 21, 2019. (Id. at 132) Counsel for Oakley Transport

forwarded this letter to Mr. Basso, Plaintiff’s counsel representing him in his workers’

compensation action. (Id. at 141)

On October 23, 2019, counsel for Oakley Transport sent a letter regarding

Plaintiff’s compensation claim action to Mr. Basso which stated, “This letter will

confirm we settled this case for a total of $40,000.00 inclusive with any and all benefits

ending as of October 23, 2019. This settles any and all claims with Oakley Transport

and includes a general release and voluntary resignation.” (Dkt. 146-1 at 139) Mr.

Basso responded, “We do have a deal, I just confirmed it with my client.” (Id. at 140)

Mr. Basso also filed a Notice of Settlement with the Office of the Judges of

Compensation Claims as to Plaintiff’s case on October 23, 2019. (Id. at 141)

Oakley Transport terminated Plaintiff on October 23, 2019. (Id. at ¶ 40; Dkt.

165-1 at ¶ 25) Plaintiff did not perform work for or receive a regular paycheck from

Oakley Transport after October 23, 2019. (Dkt. 146-1 at ¶ 41) Plaintiff’s Employee Job

Profile reflects this termination and the reason for it as: “WC Settlement”. (Dkt. 165-

8) However, Oakley Transport never paid Plaintiff the $40,000.00. (Dkt. 162-2 at

26:17-19)

On March 4, 2020, Defendants’ counsel filed a motion to withdraw a pending

motion to enforce the settlement in Plaintiff’s workers’ compensation action. (Dkt.

165-1 at 142) Therein, Defendants’ counsel represented, “The parties agree that there

was no meeting of the minds, and therefore there was no enforceable settlement

agreement.” (Id. at 143) In a declaration, Plaintiff asserts that on October 24, 2019,

Oakley Transport “attempted to expand the [settlement] agreement by sending [him]

disagreeable documents that [he] rejected.” (Dkt. 165-1 at ¶ 26) Specifically, Plaintiff

refused to execute the “Voluntary Resignation from Employment” document. (Dkt.

113 at ¶ 248; Dkt. 118 at ¶ 248)

Plaintiff asserts, and Defendants do not dispute with record evidence, that

Plaintiff was never informed of his termination. Plaintiff maintains he did not receive

notice of his termination until May 5, 2020, when he received Oakley Transport’s

responses to Plaintiff’s requests for admissions in a separate action. (Dkt. 165-1 at ¶

31; Dkt. 165-5 at 48)

Meanwhile, Plaintiff received a letter from Oakley Group’s workers’

compensation claims administrator dated March 11, 2020. (Dkt. 165-7 at 1) Therein,

the claims administrator expressed that Plaintiff was eligible to receive “Temporary

Partial Disability” benefits. (Id.) In the letter, the claims administrator explained that

to receive the benefits, Plaintiff would have to complete attached forms, titled

“Employee Earnings Reports.” (Id.) Attached to the letter were seven “Employee

Earnings Report” forms, one for each month between October 2019 through April

2020, signed by the claims administrator as the “requesting party.” (Id. at 295–301)

3. Plaintiff’s Job Duties

Oakley Transport employed Plaintiff as a Bulk Tank Professional.2 (Dkt. 162-2

at 12:4-12) Ms. Everitt testified that Plaintiff’s position as a Bulk Tank Professional

2 In their reply, Defendants represent they “mistakenly asserted that Plaintiff was employed as a

Pneumatic Tank Professional” in their Motion for Summary Judgment. (Dkt. 166 at 6) Defendants

admit Plaintiff was employed as a Bulk Tank Professional. (Id.) Thus, the Court treats Plaintiff’s

position as a Bulk Tank Professional as undisputed.

required him to drive tankers that carried liquid material. (Id.) His position did not

require him to use a forklift to unload a trailer or to lift boxes to unload a trailer. (Id.

at 12:12-18) Instead, to unload the product from Plaintiff’s tanker, Plaintiff would

attach a hose to the tanker that would deliver the product from the tanker to the

customer using a hydraulic pump. (Id. at 13:4-20) When asked whether Plaintiff

performed the essential functions of his position when he returned to work in October

2018 through July 2019, Ms. Everitt stated, “As far as I know, yes, he did.” (Id. at

18:8-12) During this period, Plaintiff was not under a light duty restriction from his

physician. (Dkt. 142-1 at 7)

4. The Location of Plaintiff’s Employment

During the entirety of Plaintiff’s employment with Oakley Transport, Plaintiff

was based out of Oakley Transport’s facility in Conley, Georgia. (Dkt. 146-1 at 44)

Plaintiff’s direct supervisor was Doug Marciante, the Terminal Manager of Oakley

Transport’s facility in Conley, Georgia, and who worked out of that facility. (Id. at ¶

17) Drivers for Oakley Transport are assigned Driver Managers, who are responsible

for dispatching drivers and logistics. (Id. at ¶ 18) Plaintiff’s Driver Manager worked

out of Oakley Transport’s facility in Conley, Georgia. (Id.) At the time of Plaintiff’s

hire and throughout his employment, he resided in Snellville, Georgia and he had a

Georgia driver’s license. (Id. at ¶¶ 8–10) Plaintiff’s W-2 forms for 2018 and 2019 reflect

withholdings of state income tax for the State of Georgia. (Id. at 13–14)

Oakley Transport, however, is headquartered in Polk County, Florida. (Dkt.

162-2 at 33:17-19) Decisions regarding Oakley Transport’s company policies and

practices occur and are implemented from its Florida headquarters. (Dkt. 113 at ¶ 35;

Dkt. 118 at ¶ 35) Oakley Transport’s decision to terminate Mr. Hardin’s employment

was made in the State of Florida. (Dkt. 113 at ¶ 46; Dkt. 118 at ¶ 46)

At all times during Plaintiff’s employment and during the 2018 and 2019

calendar years, Oakley Transport employed less than 50 employees within a 75-mile

radius of its facility in Conley, Georgia. (Dkt. 146-1 at ¶ 19) At all times during

Plaintiff’s employment, Oakley Transport regularly employed at least 50 employees at

or within 75 miles of its Florida headquarters. (Dkt. 113 at ¶ 168; Dkt. 118 at ¶ 168)

5. Plaintiff’s Charges of Discrimination

On July 20, 2020, Plaintiff filed a Charge with the EEOC under the ADEA and

ADA. (Dkt. 146-1 at 142) In Plaintiff’s Charge, which he signed under penalty of

perjury, Plaintiff acknowledged he “was terminated on or about 10/23/2019 from

[his] employment.” (Id.) Plaintiff filed the charge about two-and-a-half months after

he learned Defendants had terminated his employment in May 2020. (Dkt. 165-1 at ¶

31) On September 29, 2021, the EEOC’s Tampa Field Office issued a Dismissal and

Notice of Rights letter to Plaintiff, finding that Plaintiff’s Charge was untimely. (Id. at

144)

II. STANDARD OF REVIEW

A. Judgment on the Pleadings

Pursuant to Federal Rule of Civil Procedure 12(c), a party may move for

judgment on the pleadings after the pleadings are closed. Fed R. Civ. P. 12(c). Rule

12(h)(2) permits the defense of failure to state a claim upon which relief can be granted

to be raised in a motion for judgment on the pleadings under Rule 12(c). Fed. R. Civ.

P. 12(h)(2). A motion under Rule 12(c) is “governed by the same standards as a motion

to dismiss under Rule 12(b)(6).” United States v. Bahr, 275 F.R.D. 339, 340 (M.D.

Ala. 2011). Thus, when evaluating a motion under Rule 12(c), the Court “accept[s]

the facts in the Complaint as true and view[s] them in the light most favorable to the

nonmoving party.” Ortega v. Christian, 85 F.3d 1521, 1524 (11th Cir. 1996).

“Judgment on the pleadings under Rule 12(c) is appropriate when there are no

material facts in dispute, and judgment may be rendered by considering the substance

of the pleadings and any judicially noticed facts.” Horsley v. Rivera, 292 F.3d 695, 700

(11th Cir. 2002) (citing Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370

(11th Cir. 1998)). “If upon reviewing the pleadings it is clear that the plaintiff would

not be entitled to relief under any set of facts that could be proved consistent with the

allegations, the court should dismiss the complaint.” Id. (citing White v. Lemacks, 183

F.3d 1253, 1255 (11th Cir. 1999)).

B. Summary Judgment

Summary judgment is appropriate when the movant can show that there is no

genuine issue of material fact and that the movant is entitled to judgment as a matter

of law. Fennell v. Gilstrap, 559 F.3d 1212, 1216 (11th Cir. 2009) (citing Welding

Servs., Inc. v. Forman, 509 F.3d 1351, 1356 (11th Cir. 2007)). Which facts are material

depends on the substantive law applicable to the case. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). The moving party bears the burden of showing that no

genuine issue of material fact exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608

(11th Cir. 1991).

Evidence is reviewed in the light most favorable to the non-moving party.

Fennell, 559 F.3d at 1216 (citing Welding Servs., Inc., 509 F.3d at 1356). A moving

party discharges its burden on a motion for summary judgment by showing or pointing

out to the Court that there is an absence of evidence to support the non-moving party's

case. Denney v. City of Albany, 247 F.3d 1172, 1181 (11th Cir. 2001) (citation

omitted).

When a moving party has discharged its burden, the non-moving party must

then designate specific facts (by its own affidavits, depositions, answers to

interrogatories, or admissions on file) that demonstrate there is a genuine issue for trial.

Porter v. Ray, 461 F.3d 1315, 1320-1321 (11th Cir. 2006) (citation omitted). The party

opposing a motion for summary judgment must rely on more than conclusory

statements or allegations unsupported by facts. Evers v. Gen. Motors Corp., 770 F.2d

984, 986 (11th Cir. 1985) (“conclusory allegations without specific supporting facts

have no probative value.”). “If a party fails to properly support an assertion of fact or

fails to properly address another party's assertion of fact . . . the court may grant

summary judgment if the motion and supporting materials . . . show that the movant

is entitled to it.” Fed. R. Civ. P. 56(e).

III. DISCUSSION

A. Plaintiff’s Motion for Judgment on the Pleadings.

The Court will not consider Plaintiff’s Motion for Judgment on the Pleadings.

“Under Federal Rule of Civil Procedure 12(c), a court has the discretion to convert a

motion for judgment on the pleadings into a motion for summary judgment and

proceed under Rule 56, so long as the nonmoving party is given notice and an

opportunity to respond.” Hagerman v. Cobb Cnty., No. 06-CV-02246, 2008 U.S. Dist.

LEXIS 24972 at *7 (N.D. Ga. Mar. 28, 2008) (quoting Fed. R. Civ. P. 12(c)).

However, here there is no need to convert the motion to one for summary judgment

because Plaintiff also filed a motion for summary judgment on the same counts for

which he seeks judgment on the pleadings. Id.

The Court will only consider the motions for summary judgment, which were

filed “following the conclusion of the discovery period.” Id. Although “judgment may

[have been] rendered” on Counts I and II “by considering the substance of the

pleadings and any judicially noticed facts,” the Court does not address Plaintiff’s

motion for judgment on the pleadings. Horsley, 292 F.3d at 700 (citations omitted).

Instead, the Court “looks to the undisputed facts in the record to determine whether

summary judgment is warranted” for either Plaintiff or for Defendants. See

Hagerman, 2008 U.S. Dist. LEXIS 24972 at *7.

B. The Motions for Summary Judgment.

Defendants move for summary judgment on each count of the Complaint, and

Plaintiff moves for summary judgment on all claims except for those under the ADEA.

First, Defendants argue the undisputed facts show Defendants did not engage in fraud.

Second, Defendants argue Plaintiff’s claims under the ADA and the ADEA are barred

because Plaintiff failed to exhaust administrative remedies. Moreover, Defendants

argue no question of material fact exists as to whether Defendants unlawfully

discriminated or retaliated against Plaintiff. Defendants also argue Plaintiff’s claims of

discrimination under the FCRA fail because Plaintiff is not a Florida resident and the

alleged discrimination occurred in Georgia. Third, Defendants argue they were not

bound by the FMLA because the FMLA excludes from its coverage employees whose

employer employs fewer than 50 employees within 75 miles of the employee’s “work

site.” Defendants assert the record establishes Oakley Transport employed fewer than

50 employees within the 75-mile radius of Plaintiff’s worksite, the Oakley Transport

facility in Conley, Georgia. Finally, Defendants argue they are entitled to summary

judgment on Plaintiff’s retaliation claim under the FWCA because Defendants

terminated Plaintiff due to his attorney’s representation that he agreed to resign as a

part of Defendants’ settlement with Plaintiff in 2019. For this reason, Defendants

argue the record establishes Defendants did not terminate Plaintiff in retaliation for his

filing a workers’ compensation claim.

Plaintiff moves for summary judgment on all claims except his age

discrimination claims. First, he asserts the record evidence establishes he is entitled to

summary judgment on his claims of fraud and unjust enrichment. As for Plaintiff’s

claims under the ADA and the FCRA, Plaintiff argues he is entitled to summary

judgment because undisputed facts establish Defendants failed to accommodate

Plaintiff’s “walking physical impairment.” (Dkt. 165 at 25) Next, Plaintiff asserts he is

entitled to summary judgment on his claim under the FMLA because the record shows

Defendants failed to provide Plaintiff with medical leave to undergo knee surgery. In

response to Defendants’ assertion that the FMLA did not cover employees at

Plaintiff’s worksite, Plaintiff notes that Defendants admitted: “At all relevant times

hereto, Defendant Oakley Transport regularly employed at least 50 employees at or

within 75 miles of its Florida headquarters.” (Dkt. 113 at ¶ 168; Dkt. 118 at ¶ 168)

Finally, Plaintiff argues he is entitled to summary judgment on his claims of retaliation

under the ADA, FCRA, FMLA, and WCA because Oakley Transport denied

Plaintiff’s requests for accommodation, required he work at Must Serve, and when

Must Serve turned him away, Oakley Transport covertly terminated Plaintiff’s

employment. Plaintiff argues these facts establish a causal connection between

Plaintiff’s protected conduct and his termination. (Id.)

1. Plaintiff’s Fraud & Unjust Enrichment Claims (Counts I, II,

III, IV, and V)

Defendants are entitled to summary judgment on Plaintiff’s fraud and unjust

enrichment claims. These claims are based on Plaintiff’s unsupported assertions that

Defendants made misrepresentations in online advertisements and during pre-

employment orientation that tanker drivers would be paid a $54 per diem allowance

in addition to $250.00 per day in regular compensation. (Dkt. 165-1 at ¶¶ 4–7)

Defendants note that the Pay Agreement Plaintiff signed states he would be paid

$250.00 per day, “which includes $54 per day for per diem.” (Id. at 9) (emphasis added)

The undisputed facts do not establish essential elements of Plaintiff’s fraudulent

misrepresentation and fraudulent inducement claims. Under Florida law, the elements

of fraudulent misrepresentation are: “‘(1) a false statement concerning a material fact;

(2) the representor’s knowledge that the representation is false; (3) an intention that

the representation induce another to act on it; and (4) consequent injury by the party

acting in reliance on the representation.’” Butler v. Yusem, 44 So. 3d 102, 105 (Fla.

2010) (quoting Johnson v. Davis, 480 So. 2d 625, 627 (Fla. 1985)). The elements of

fraudulent inducement are the same as the elements for fraudulent misrepresentation,

except that the plaintiff must also show that his or her reliance was justifiable. Johnson

Enters. of Jacksonville, Inc. v. FPL Grp., Inc., 162 F.3d 1290, 1315 (11th Cir. 1998)

(citing Saunders Leasing Sys., Inc. v. Gulf Cent. Distrib. Ctr., Inc., 513 So. 2d 1303,

1306 (Fla. 2d DCA 1987)).

Plaintiff attests that an unidentified person told him he would receive a $54 per

diem allowance in addition to a daily flat rate of $250. Assuming this fact to be true

and that the unidentified person had the authority to bind Defendants, Plaintiff

provides no direct or circumstantial evidence to establish the person knew the

representation was false or that the person intended to induce Plaintiff’s reliance on

the representation. Thus, Plaintiff’s claims of fraudulent misrepresentation and

inducement fail. Plaintiff’s fraudulent inducement claim fails for the additional reason

that Plaintiff fails to establish that his reliance on the asserted misrepresentation was

justified. Plaintiff signed the Pay Agreement, the plain terms of which disclose that

Plaintiff would be paid $250 per day, and that this amount included a $54 per diem.

As for fraudulent concealment, the elements are:

(i) the defendant concealed or failed to disclose a material

fact; (ii) the defendant knew or should have known the

material fact should be disclosed; (iii) the defendant knew

its concealment of or failure to disclose the material fact

would induce the plaintiff to act; (iv) the defendant had a

duty to disclose; and (v) the plaintiff detrimentally relied on

the concealed information.

Philip Morris USA Inc. v. Principe, 337 So. 3d 821, 827 n.7 (Fla. 3d DCA 2021).

Defendants did not conceal or fail to disclose a material fact. The plain terms of the

Pay Agreement disclose that Plaintiff would be paid $250 per day, and that this

amount included a $54 per diem. Plaintiff’s claim for fraudulent concealment fails.

Next, Defendants are entitled to summary judgment on Plaintiff’s claim that

Defendants filed fraudulent information returns in violation of 26 U.S.C. § 7434(a).

“If any person willfully files a fraudulent information return with respect to payments

purported to be made to any other person, such other person may bring a civil action

for damages against the person so filing such return.” 26 U.S.C. § 7434(a). To establish

a claim of tax fraud under § 7434, a plaintiff must prove the defendant issued an

information return; the information return was fraudulent; and the defendant willfully

issued a fraudulent information return. Leon v. Tapas & Tintos, Inc., 51 F. Supp. 3d

1290, 1297 (S.D. Fla. 2014) (citations omitted). “[T]he purpose of the statute is to

redress individual wrongs.” Chen v. Wow Restaurant Th, LLC, No. 23-cv-1602, 2024

WL 4679029, at *2 (M.D. Fla. Nov. 5, 2024). “The statute specifically provides that a

‘person may bring a civil action for damages’ and then discusses the extent to which

the ‘defendant shall be liable to the plaintiff.’ Accordingly, the statutory purpose is to

provide a private cause of action for individuals wronged by others . . . .” Id. (citing 26

U.S.C. § 7434(a)).

Plaintiff points to the Payroll Statements, in which the per diems are located

“above Total Gross Pay.” (Dkt. 165 at 23) Plaintiff asserts the Payroll Statements

“disguised deductions . . . that were used to embezzle/steal monies out of Plaintiff’s

accrued pay.” (Id.) Defendants present a report from an expert, William Blend, CPA,

who opines that Plaintiff was paid in accordance with the Pay Agreements. (Dkt. 146-

1 at 23) Mr. Blend submits a schedule of Plaintiff’s compensation that “demonstrates

that for each pay date listed . . . the net pay included either the full shift or half shift

rate in taxable income or when applicable identified the per diem as non-taxable, and

that non-taxable amount was included in the net payment to” Plaintiff. (Id.)

The record evidence does not establish that Defendants issued fraudulent

information returns. The Payroll Statements show Oakley Transport deducted the

applicable per diem amount from Plaintiff’s gross pay for a given pay period so that

the per diem amount would not be taxed. After calculating and deducting taxes from

Plaintiff’s taxable income, Oakley Transport would add the full, non-taxed per diem

amount back into Plaintiff’s net pay. (See Dkt. 146-1 at 56–75) Plaintiff does not

submit evidence to prove that Defendants were not permitted to characterize Plaintiff’s

per diem allowances as non-taxable.

Accordingly, Plaintiff does not establish he has a claim under § 7434. See Chen,

2024 WL 4679029, at *2 (“[T]he statutory purpose is to provide a private cause of

action for individuals wronged by others . . . .”).

Finally, Defendants are entitled to summary judgment on Plaintiff’s claim for

unjust enrichment. Defendants make several arguments in support of their motion.

First, they argue Oakley Transport and Plaintiff were parties to a contract, and where

a claim for breach of contract exists, a claim of unjust enrichment fails. (Dkt. 146 at

16) Next, Defendants argue a plaintiff cannot sustain a claim for unjust enrichment

where the defendant has paid for the benefit conferred. (Id.) Third, Defendants argue

Plaintiff cannot establish the value of the benefit conferred on Defendants. (Id. at 17)

Plaintiff responds that the Eleventh Circuit has held that a claim for unjust enrichment

does not necessarily fail merely because another adequate legal remedy exists. (Dkt.

162 at 22–23; Dkt. 165 at 24)

In Florida, the elements of a claim for unjust enrichment are: “(1) a benefit

conferred upon the defendant by the plaintiff, (2) appreciation by the defendant of such

benefit, and (3) acceptance and retention of such benefit by the defendant under such

circumstances that it would be inequitable for him to retain it without paying the value

thereof.” Hercules, Inc. v. Pages, 814 F. Supp. 79, 80 (M.D. Fla. 1993) (citing Henry

M. Butler, Inc. v. Trizec Props., Inc., 524 So. 2d 710, 712 (Fla. 2d DCA 1988)). “When

a defendant has given adequate consideration to someone for the benefit conferred, a

claim of unjust enrichment fails.” Am. Safety Ins. Serv., Inc. v. Griggs, 959 So. 2d

322, 331-32 (Fla. 5th DCA 2007) (citations omitted); Gene B. Glick Co., Inc. v.

Sunshine Ready Concrete Co., Inc., 651 So. 2d 190, 190 (Fla. 4th DCA 1995) (“Unjust

enrichment . . . cannot exist where payment has been made for the benefit

conferred.”).

Here, Plaintiff fails to prove with record evidence that Defendants did not pay

him according to the terms of the Pay Agreement. Moreover, he fails to establish that

the Pay Agreement did not provide him with “adequate consideration” for his work

as a Bulk Tank Professional for Oakley Transport. For these reasons, Plaintiff’s claim

of unjust enrichment fails.

Defendants’ motion for summary judgment is due to be GRANTED as to

Counts I, II, III, IV, and V. Plaintiff’s motion is DENIED.

2. Plaintiff’s Claims of Discrimination under the ADA and

ADEA (Counts VI, VII, VIII, and X)

Defendants move for summary judgment on Plaintiff’s claims under the ADA

and the ADEA because Defendants assert Plaintiff failed to exhaust administrative

remedies and fails to establish prima facie cases of discrimination. Plaintiff moves for

summary judgment in his favor on his ADA claims because he argues the record

establishes he suffered discrimination under the ADA.

a) Failure to Exhaust Administrative Remedies

First, Defendants argue the Court should grant Oakley Transport summary

judgment on Plaintiff’s claims under the ADA and the ADEA because Plaintiff failed

to exhaust administrative remedies. (Dkt. 146 at 17–23) Defendants argue Plaintiff

failed to file an EEOC charge for his ADA and ADEA claims within 180 days of his

termination, the deadline for filing a charge in non-deferral states like Georgia.

Instead, he filed his charge with the EEOC 271 days after his termination on October

23, 2019. Thus, Defendants argue Plaintiff’s charge was untimely and his ADA and

ADEA claims are barred by the statute of limitations. Defendants acknowledge that

“the Court need not defer to the EEOC’s findings” as to the timeliness of Plaintiff’s

charge. (Id. at 19) See Young v. FedEx Exp., 432 F. App’x 915, 917 (11th Cir. 2011)

(citing Moore v. Devine, 767 F.2d 1541, 1550-51 (11th Cir. 1985), modified on reh’g,

780 F.2d 1559, 1560 (11th Cir. 1986)). 3

In response, Plaintiff argues his claim is not barred for failure to timely file a

claim with the EEOC because Oakley Transport “covertly” terminated Plaintiff’s

employment. (Id. at 17) Plaintiff asserts that Oakley Transport did not disclose that it

had fired Plaintiff; thus, Plaintiff contends the time for him to file a claim had not

begun to run. (Id. at 17, 19) Plaintiff also appears to contend that the Court should

apply the statute of limitations applicable in Florida, a deferral state because Oakley

Transport’s HR decisions were made in Florida. (Id. at 23–24) In Florida, an EEOC

charge is timely if filed within 300 days of the alleged violation.

A plaintiff raising claims under the ADA or the ADEA must timely file a charge

of discrimination with the EEOC before pursuing the claims in district court. Abram

v. Fulton Cnty., 598 F. App’x 672, 674 (11th Cir. 2015) (citing 42 U.S.C. § 12117(a));

Grayson v. K Mart Corp., 79 F.3d 1086, 1101 (11th Cir. 1996) (citing 29 U.S.C. §

626(d)). For an EEOC charge to be timely in a non-deferral state, like Georgia, the

charge must be filed within 180 days of the occurrence of the alleged violation. Abram,

598 F. App’x at 674 (citations omitted). In a deferral state, like Florida, the charge

must be filed within 300 days of the occurrence of the alleged violation. Grayson, 79

3 The Court notes that “[a]lthough an unpublished opinion is not binding on this court, it may be

considered as persuasive authority. See 11th Cir. R. 36-2.” United States v. Futrell, 209 F.3d 1286,

1289 (11th Cir. 2000). Where cited herein, any unreported decision of a panel of the Circuit is

considered well-reasoned and is offered as persuasive, not binding.

F.3d at 1101 (citations omitted). “Failure to file a timely charge with the EEOC results

in a bar of the claims contained in the untimely charge.” Rizo v. Ala. Dep’t of Human

Res., 228 F. App’x 832, 835 (11th Cir. 2007) (citing Alexander v. Fulton Cnty., 207

F.3d 1303, 1332 (11th Cir. 2000)).

To determine the statute of limitations for filing an EEOC charge for alleged

discriminatory acts under the ADA or the ADEA, a court looks to the law of the state

in which the alleged discriminatory acts occurred. See Taye v. Vectrus Sys. Corp., No.

22-CV-200, 2023 WL 4492463, at *2 (M.D. Ga. Jul. 12, 2023) (citing Bush v. Liberty

Nat’l Life Ins., 12 F. Supp. 2d 1251, 1255 n.1 (M.D. Ala. 1998), aff’d, 196 F.3d 1261

(11th Cir. 1999)) (noting the court “has not located any binding Circuit precedent on

this issue” but reasoning the “applicable statute of limitations depends upon a

connection between the unlawful employment practice, the employee, and the state

supplying the statute of limitations”). “The location where an employment decision

takes place should not be a decisive factor to determine the law applicable to claims

affected by the decision.” Arnold v. United Parcel Serv., Inc., No. 11–CV–00118, 2012

WL 1035441, at *2 (M.D. Ga. Mar. 27, 2012) (“If the Court allows employers to

dictate the location that governs the time limitation, employers would be able to

manipulate the system by making all employment decisions in non-deferral states.”).

Here, the non-deferral statute of limitations applies because the connection

between Georgia, on the one hand, and the alleged unlawful employment decision

and Plaintiff, on the other, is stronger. Plaintiff suffered his workplace injury while

based out of the Oakley Transport facility in Conley, Georgia. (Dkt. 146-1 at 44) When

Plaintiff was terminated, his employment was still based out of Georgia. (Id.)

Likewise, at the time of his termination, Plaintiff resided in Snellville, Georgia, and

had a Georgia driver’s license. (Id. at ¶¶ 8–9) Even though Defendant Oakley

Transport’s decision to terminate Mr. Hardin’s employment was made in Florida,

(Dkt. 113 at ¶ 46; Dkt. 118 at ¶ 46), this fact is not determinative. Arnold, 2012 WL

1035441, at *2. Plaintiff suffered the alleged violation in Georgia, a non-deferral state.

For this reason, Plaintiff’s EEOC charge, which was filed more than 180 days after the

alleged violation, was facially untimely.

Plaintiff asserts, however, that he did not receive unequivocal notice of his

termination until May 2020. “[T]he time for filing an EEOC charge begins to run when

the employee receives unequivocal notice of the adverse employment decision.”

Grayson, 79 F.3d at 1100 n.19. “A ‘final decision’ that remains uncommunicated to

the terminated employee has no impact on the statutory filing deadline.” Wright v.

AmSouth Bancorp., 320 F.3d 1198, 1201 (11th Cir. 2003). “When an employee is left

simply to infer and deduce his employment status from the surrounding events,

no unequivocal communication of an adverse employment decision has occurred.” Id.

at 1203 (emphasis in original).

Plaintiff asserts, and Defendants do not dispute with record evidence, that

Oakley Transport did not notify him of his termination until May 2020. (Dkt. 165-1 at

¶ 31) Even though Plaintiff did not perform work for or receive a regular paycheck

from Oakley Transport after October 23, 2019, (Dkt. 146-1 at ¶ 41), Plaintiff received

a letter from Oakley Group’s workers’ compensation claims administrator dated

March 11, 2020. (Dkt. 165-7 at 1) The letter does not clearly indicate that Plaintiff was

no longer employed by Oakley Transport. (See id.) Plaintiff asserts he did not receive

unequivocal notice of his termination until May 5, 2020, when he received Oakley

Transport’s responses to Plaintiff’s requests for admissions in a separate action. (Dkt.

165-1 at ¶ 31; Dkt. 165-5 at 48) Plaintiff then filed his charge on July 20, 2020. (Dkt.

146-1 at 142)

Accepting Plaintiff’s assertion as true, as the Court must as this stage, a genuine

issue of material fact exists as to whether Plaintiff filed his charge of discrimination

within 180 days of receiving unequivocal notice of his termination. Accordingly, the

Court cannot grant Defendants summary judgment on the basis that Plaintiff failed to

exhaust administrative remedies.

The Court next considers whether Plaintiff has established prima facie cases of

discrimination under the ADA and the ADEA.

b) The ADA

Defendants argue Plaintiff could not perform the essential functions of his

position as bulk tank truck driver. Plaintiff asserts he could perform the essential

functions of his position while on a “light duty” restriction from his physician. (Dkt.

162 at 25) He argues that when Oakley Transport required him to work at “Must

Serve,” performing non-driving duties for less pay, Oakley Transport treated him less

favorably than similarly situated employees.

The ADA prohibits an employer from discriminating “against a qualified

individual on the basis of disability . . . .” 42 U.S.C. § 12112(a). “To establish a prima

facie case of disability discrimination, a plaintiff must show that he (1) is disabled, (2)

is a ‘qualified’ individual, and (3) was subjected to unlawful discrimination because of

his disability.” Samson v. Fed. Exp. Co., 746 F.3d 1196, 1200 (11th Cir. 2014)

(citations omitted). Here, the Parties appear to not dispute that Plaintiff was disabled

at the time of his termination. The Parties do dispute whether Plaintiff was a “qualified

individual” under the ADA.

“[A] ‘qualified individual’ is someone ‘who, with or without reasonable

accommodation, can perform the essential functions of the employment position that

such individual holds or desires.’” Id. (emphasis added in original) (quoting 42 U.S.C.

§ 12111(8)). Whether a plaintiff can perform the essential functions of a position is a

fact-intensive inquiry. Cf. id. at 1200–01. A court should consider the employer’s

description of a job and “‘“how the job is actually performed in practice.”’” Id. at 1201

(quoting McMillan v. City of New York, 711 F.3d 120, 126 (2d Cir. 2013) (citation

omitted)).

Plaintiff presents evidence that Bulk Tank Professionals drive tankers carrying

liquid material. (Dkt. 162-3 at 12:4-12) Bulk Tank Professionals use a hydraulic pump

to unload the material from the tank and deliver it to the customer. (Id. at 6:5-12)

Evidence in the record suggests a Bulk Tank Professional should stand by the truck as

the material is unloaded to monitor the risk of leaks or spills. (Id. at 8:6-14; 9:4-6)

However, a Bulk Tank Professional is not required to lift boxes to unload a trailer.

(Dkt. 162-2 at 12:12-18)

To rebut Plaintiff’s assertion that his disability did not preclude him from

performing the essential functions of his job, Defendants provide a record of the Bulk

Tank Professional job description. The description includes as the position’s essential

functions: “driving, sliding tandems, hook/unhook,” “[l]oad[ing] or unload[ing]

trailers with interstate and intrastate loads of freight,” and “perform[ing] pump off

operations.” (Dkt. 166-1 at 6) But Defendants provide no evidence that these essential

functions could not be performed by a Bulk Tank Professional while on a “light duty”

restriction. Although Plaintiff’s physician prohibited “loading/unloading,” the record

evidence does not establish the physician knew that in Plaintiff’s position, loading and

unloading is conducted via hydraulic pump.

The Court finds a question of fact exists as to whether Plaintiff could perform

the essential functions of the Bulk Tank Professional position. Thus, a jury must decide

whether Plaintiff was a “qualified individual” and therefore has establishes a prima

facie case of discrimination under the ADA. The parties’ motions are due to be

DENIED as to Counts VI, VII, and VIII.

c) The ADEA

Defendants argue Plaintiff fails to establish a prima facie case of age

discrimination because the record establishes Plaintiff was not qualified for his

position. (Dkt. 146 at 27–28) Defendants also note that Plaintiff has not identified a

similarly situated individual outside his class who was treated more favorably. (Id. at

29) In response, Plaintiff asserts he was qualified. (Dkt. 162 at 25) Additionally,

Plaintiff points to evidence in the record that suggests generally that Oakley Transport

hired truck drivers under the age of 40 in the years 2020, 2021, 2022, and 2023. (Id.;

Dkt. 162-2 at 16:1-4) It is not clear from the deposition that Oakley Transport only

hired persons under the age of 40 in that timeframe.

To establish a prima facie case of discrimination using circumstantial evidence,

a plaintiff must show: “(1) she is a member of a protected class; (2) she suffered an

adverse employment action; (3) she was qualified for the position; and (4) she was

replaced by a person outside her protected class or was treated less favorably than a

similarly-situated individual outside her protected class.” Sheppard v. Sears, Roebuck

& Co., 391 F. Supp. 2d 1168, 1177 (S.D. Fla. 2005) (citing Maynard v. Bd. of Regents

of the Division of Univs. of the Fla. Dep’t of Educ., 342 F.3d 1281, 1289 (11th Cir.

2003)). A plaintiff must identify “‘an individual who replaced him or was treated better

than he who was not a member of his protected class.’” Id. at 1178 (quoting Morris v.

Emory Clinic, Inc., 402 F.3d 1076, 1082 (11th Cir. 2005)).

Plaintiff does not identify an individual who replaced him who was not a

member of his protected class. By failing to identify any specific individuals, Plaintiff

fails to present evidence that he was replaced by a younger truck driver who was

similarly situated to him. See id. at 1179. Thus, he fails to establish a prima facie case

of discrimination under the ADEA. Defendants’ motion for summary judgment is due

to be GRANTED as to Count X.

3. Plaintiff’s Claims of Discrimination Under the FCRA (Counts

IX, XI, and XIV)

Defendants argue they are entitled to summary judgment on Plaintiff’s claims

under the FCRA because Plaintiff was not a Florida resident at any time material to

this action and the record establishes that the alleged discrimination did not occur in

Florida. This Court agrees. A plaintiff who does not reside in Florida and has never

resided in Florida and who does not allege wrongful acts occurring in Florida cannot

maintain a claim under the FCRA. MacMartin v. Marine Mgmt. Servs., Inc., No. 22-

cv-610, 2023 WL 9469635, at *4–5 (M.D. Fla. Feb. 7, 2023) report and

recommendation adopted as modified, 2023 WL 9469397 (M.D. Fla. Mar. 21, 2023)

(dismissing the plaintiff’s FCRA claims against her alleged employers that maintained

offices and operations in Florida because the plaintiff was not a Florida resident and

did not allege she suffered discrimination in Florida); Hampton v. Tem Enters., Inc.,

No. 19-cv-23575, 2019 U.S. Dist. LEXIS 213572, at *10–12 (S.D. Fla. Dec. 9, 2019).

Here, Plaintiff is not a resident of Florida, and the alleged discriminatory acts

did not occur in Florida. When Plaintiff was terminated, his employment was based

out of the Oakley Transport facility in Conley, Georgia. (Dkt. 146-1 at 44) Likewise,

at the time of his termination, Plaintiff resided in Snellville, Georgia, and had a

Georgia driver’s license. (Id. at ¶¶ 8–9) Even though Oakley Transport’s decision to

terminate Mr. Hardin’s employment was made in Florida, (Dkt. 113 at ¶ 46; Dkt. 118

at ¶ 46), Plaintiff asserts he suffered discrimination in Georgia, not Florida. For this

reason, Plaintiff cannot assert claims under the FCRA.

Accordingly, Defendants’ motion for summary judgment is GRANTED as to

Counts IX, XI, and XIV.

4. Plaintiff’s Claims Under the FMLA (Counts XII and XV)

Defendants are entitled to summary judgment on Plaintiff’s FMLA claims

because Plaintiff was not an “eligible employee” under the FMLA. Defendants argue

they are entitled to summary judgment on Plaintiff’s FMLA claims because he was

not subject to FMLA protections during his employment. (Dkt. 146 at 33) Plaintiff

asserts that Defendants indicated he would be covered under the FLMA pursuant to

Oakley Transport’s Driver Leave of Absence Policy. (Dkt. 162 at 26) Plaintiff also

noted that Oakley Transport regularly employed at least 50 employees at or within 75

miles of its Florida headquarters. (Id. at 27)

The FMLA excludes from its protections an individual whose employer

employs fewer than 50 people within a 75-mile radius of the individual’s worksite. 29

U.S.C. § 2611(2)(B)(ii); Morrison v. Magic Carpet Aviation, 383 F.3d 1253, 1254 (11th

Cir. 2004). “For employees with no fixed worksite, e.g., . . . truck drivers . . . , the

worksite is the site to which they are assigned as their home base, from which their

work is assigned, or to which they report.” 29 C.F.R. § 825.111(a)(2).

Plaintiff’s worksite was Oakley Transport’s facility in Conley, Georgia.

Plaintiff’s direct supervisor worked out of that facility. (Dkt. 146-1 at ¶ 17) Plaintiff’s

Driver Manager, who was responsible for dispatching drivers and logistics, worked

out of the Conley, Georgia facility. (Id. at ¶¶ 17–18) While employed by Oakley

Transport, Plaintiff resided in Snellville, Georgia. (Id. at ¶ 8)

At all times during Plaintiff’s employment, Oakley Transport employed less

than 50 employees within a 75-mile radius of its facility in Conley, Georgia. (Id. at ¶

19) Thus, Plaintiff was not eligible for FLMA coverage through his employment with

Oakley Transport. Even though Oakley Transport regularly employed at least 50

employees at or within 75 miles of its Florida headquarters, (Dkt. 113 at ¶ 168; Dkt.

118 at ¶ 168), Oakley Transport’s Florida headquarters were not Plaintiff’s worksite.

Accordingly, Defendants are entitled to summary judgment on Plaintiff’s

FMLA claims. Summary judgment in favor of Defendants is GRANTED as to Counts

XII and XIV.

5. Plaintiff Claims of Retaliation Under the ADA and the FWCA

(Counts XIII and XVI)

Defendants argue Plaintiff’s claims of retaliation fail because Plaintiff fails to

prove Defendants fired him in retaliation for protected activity. (Dkt. 146 at 31–32)

Instead, Defendants maintain that the record evidence shows Oakley Transport

terminated Plaintiff’s employment because it believed Plaintiff agreed to voluntarily

resign pursuant to their agreement to settle his workers’ compensation action. (Id.)

Plaintiff responds and asserts he is entitled to summary judgment on his retaliation

claims because he engaged in protected activity each time he or his physician requested

Defendant Oakley Transport to authorize his knee surgery and provide reasonable

accommodations until he recovered. (Dkt. 162 at 28) He also argues he engaged in

protected activity when he filed his workers’ compensation claim in August 2019.

(Dkt. 165 at 28) He asserts he is entitled to summary judgment because Oakley

Transport never authorized the surgery and ultimately terminated his employment.

(Id. at 28–29)

The ADA prohibits discrimination or retaliation against a person on grounds

that the person opposed any act or practice made unlawful by the ADA or because he

or she made a charge under the ADA. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249,

1260 (11th Cir. 2001) (citing 42 U.S.C. § 12203(a)). Likewise, Florida law prohibits an

employer from retaliating against an employee “by reason of such employee's valid

claim for compensation or attempt to claim compensation under the” FWCA. §

440.205, Fla. Stat. (2024). To establish a prima facie case of retaliation under the ADA

or the FWCA, a plaintiff must show that: “(1) he engaged in a statutorily protected

expression; (2) he suffered an adverse employment action; and (3) there was a causal

link between the adverse action and his protected expression.” Lucas, 257 F.3d at

1260; Chavous v. City of Saint Petersburg, 576 F. Supp. 3d 1040, 1063 (M.D. Fla.

2021) (finding the plaintiff “easily establishe[d] the first two elements” where he

suffered injuries, applied for and received workers’ compensation, and was later

terminated). For claims of FWCA retaliation, “a specific retaliatory intent is not

required by the express statutory language.” Allan v. SWF Gulf Coast, Inc., 535 So.

2d 638, 639 (Fla. 1st DCA 1988).

Defendants only argue that Plaintiff fails to establish the third element, the

causal connection between Plaintiff’s termination and his protected expression.

Defendants maintain Oakley Transport did not retaliate against Plaintiff. Instead,

“Oakley Transport discharged Plaintiff due to its good-faith belief that the parties

reached a settlement on October 23, 2019, which specifically included Plaintiff’s

voluntary resignation, based on representations from Plaintiff’s then-attorney,” Mr.

Basso. (Dkt. 146 at 30–31) It is undisputed, however, that Plaintiff did not sign an

agreement to voluntarily resign on October 23, 2019, or anytime thereafter. (Dkt. 113

at ¶ 248; Dkt. 118 at ¶ 248) It is also undisputed that on October 24, 2019, Oakley

Transport “attempted to expand the [settlement] agreement by sending” documents

that were “disagreeable” to Plaintiff and that he rejected. (Dkt. 165-1 at ¶ 26) The

record evidence establishes, then, that Oakley Transport terminated Plaintiff before

receiving evidence that Plaintiff executed the settlement agreement, and thus

terminated Plaintiff prematurely. Oakley never paid the settlement payment that it

claims was consideration for the settlement agreement. When Oakley Transport

understood that Plaintiff had not agreed to resign voluntarily under the terms of the

proposed settlement, Oakley Transport failed to reverse his termination.

Oakley Transport cannot rely on its belief that Plaintiff voluntarily resigned to

destroy the causal connection between Plaintiff’s workers’ compensation claim and

his requests for medical care and his ultimate termination where Oakley Transport

knew Plaintiff never executed a settlement agreement or an agreement to voluntarily

resign. The record contains no evidence that Plaintiff was terminated for any reason

other than his injury and/or his claim for workers’ compensation. Based on these facts,

Plaintiff establishes the causal connection element of his prima facie claims of

retaliation under the ADA and the FWCA. Defendants, therefore, are not entitled to

summary judgment on Plaintiff’s ADA or FWCA retaliation claims.

To determine whether Plaintiff is entitled to summary judgment on his

retaliation claims, the Court must consider whether Plaintiff establishes the first two

elements of retaliation under the ADA or the FWCA. First, it is undisputed Plaintiff

suffered an adverse employment action; he easily establishes the second element of

both retaliation claims. Next, Plaintiff engaged in activity protected by the FWCA

when he filed a workers’ compensation claim. § 440.205, Fla. Stat. (2024). Thus,

Plaintiff establishes a prima facie case of retaliation under the FWCA.

Finally, a person engages in activity protected by the ADA when the person

opposes any act or practice made unlawful by the ADA or makes a charge under

the ADA. See Lucas, 257 F.3d at 1260 (citing 42 U.S.C. § 12203(a)). Plaintiff did not

make a charge under the ADA until after Oakley Transport terminated him. Bothwell

v. RMC Ewell, Inc., No. 04-cv-1270, 2007 WL 2254496, at *6 (M.D. Fla. Aug. 3,

2007) (citing Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir.

2000) (emphasis in original) (noting “any adverse employment action must occur after

a statutorily protected expression, as a matter of law”). But Plaintiff opposed Oakley

Transport’s failure to authorize his knee surgery, his requested “reasonable

accommodation,” when he filed his workers’ compensation claim. Defendants do not

argue that the requested knee surgery was not a “reasonable accommodation” under

the ADA. Based on the foregoing, Plaintiff establishes the first element of his prima

facie claim of retaliation under the ADA.

Next, the Court considers whether Defendants have articulated a legitimate,

non-discriminatory reason for Plaintiff’s termination under the McDonnell Douglas

burden-shifting framework. Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th

Cir. 1997) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Texas

Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 254 (1997)). To satisfy their burden,

Defendants “‘need only produce admissible evidence which would allow the trier

of fact rationally to conclude that the employment decision had not been motivated by

discriminatory animus.’” Id. (emphasis in original) (quoting Burdine, 450 U.S. at 257).

While Defendants do not expressly argue that they have carried their burden to

articulate a non-discriminatory reason, Defendants maintain generally that Oakley

Transport terminated Plaintiff’s employment because it believed Plaintiff agreed to

voluntarily resign. Defendants support this position with evidence of Mr. Basso’s

representation that Plaintiff assented to the proposed settlement agreement, including

his voluntary resignation, on October 23, 2019. The Court finds this evidence sufficient

to allow a trier of fact to rationally conclude Plaintiff’s termination was not motivated

by discriminatory animus. Thus, Defendants satisfy their burden, and the burden shifts

back to Plaintiff under McDonnell Douglas.

Plaintiff “has the opportunity to come forward with evidence, including the

previously produced evidence establishing the prima facie case, sufficient to permit a

reasonable factfinder to conclude that the reasons given by the employer were not the

real reasons for the adverse employment decision.” Id. at 1528 (citing Burdine, 450

U.S. at 256; McDonnell Douglas, 411 U.S. at 804). Plaintiff provides evidence that his

termination was premature, and Oakley Transport learned the purported non-

discriminatory reason for his termination had no basis in fact soon after the

termination was effected. The Court finds Plaintiff has satisfied this burden sufficient

to survive summary judgment. A jury must decide whether Oakley Transport’s

decision to terminate Plaintiff was motivated by a desire to retaliate against him for

seeking reasonable accommodations under the ADA or for filing a workers’

compensation claim.

Accordingly, the parties’ motions for summary judgment are DENIED as to

Counts XIII and XVI.

IV. CONCLUSION

Upon consideration of the foregoing, it is hereby ORDERED:

1. Plaintiff’s Motion for Partial Judgment on the Pleadings, (Dkt. 137), is

DENIED.

2. Defendants’ Amended Motion for Summary Judgment, (Dkt. 146), is

GRANTED IN PART and DENIED IN PART. Defendants are entitled

to summary judgment on Counts I, II, III, IV, V, IX, X, XI, XII, XIV, and

XV. Defendants’ motion is denied as to Counts VI, VII, VIII, XIII, and

XVI.

3. Plaintiff’s Motion for Partial Summary Judgment, (Dkt. 165), is DENIED.

4. Within twenty-one (21) days of the date of this Order, the Parties are

DIRECTED to file a joint notice advising the Court as to how the Parties

believe this case should proceed. If appropriate, the Parties shall file an

amended case management report on or before this deadline.

5. The Clerk is directed to STAY THIS CASE pending the Court’s receipt of

the Parties’ notice.

DONE and ORDERED in Tampa, Florida, this 28th day of March 2025.

LLL IZ bn

MARY S_SGRIVEN

UNITED STATES DISTRICT JUDGE

Copies furnished to:

Counsel of Record

Any Unrepresented Person

36