Agrait v. Hillsborough County Public Schools

UMNIIDTEDDL ES TDAISTTERS IDCITS TORFI FCLTO CROIDUART

TAMPA DIVISION

Nilsa Ivette Agrait,

Plaintiff,

v. CASE NO. 8:23-cv-01555-SDM-SPF

Hillsborough County Public Schools,

Defendant.

___________________________________/

ORDER

Nilsa Ivette Agrait sues (Doc. 1) her former employer, Hillsborough County

Public Schools (the school board) and asserts claims for disability discrimination,

failure to accommodate, and retaliation. The school board moves (Doc. 61) for sum-

mary judgment on each claim. Agrait responds (Docs. 62, 64).

BACKGROUND

From 1993 to 2022, Agrait worked for the school board as a speech language

pathologist or SLP. (Doc. 61-3 at 104:22) Five years into her employment with the

school board, Agrait was diagnosed with multiple sclerosis, a chronic autoimmune

disease affecting the central nervous system. (Doc. 61-3 at 104:23) To overcome vi-

sion and mobility problems caused by her multiple sclerosis, Agrait relied on eye-

glasses and either a walker or an electric scooter. (Doc. 61-3 at 132:4-6) Also, she

had a handicapped parking space throughout her employment with the school board

and was granted medical leave on numerous occasions during her employment to

manage “flare ups” of her multiple sclerosis. (Doc. 61-1 at ¶11; Doc. 61-3 at 32:2

Doc. 61-3 at 97:19)

As an SLP, Agrait provided speech and language instruction for kindergarten

through twelfth grade exceptional student education (ESE) and for non-ESE stu-

dents. (Doc. 61-2 at ¶4; Doc 61-1 at Ex. I; Doc. 61-3 at 65:3-19) ESE students range

in age from three to twenty-one and have a diagnosis of developmental delay. (Doc.

61-2 at ¶4; Doc. 61-3 at 74:16-76:8) Also, the ESE program includes “Access stu-

dents” who exhibit a cognitive disability and require assistance with routine tasks.

(Doc. 61-3 at 74:16-76:8) Some are completely non-verbal. (Doc. 61-3 at 143:6-8)

Agrait was to follow the expectations for “[a]ll district employees,” which in-

clude “regular and predictable attendance.” Agrait’s official job description, issued in

2012, specifies that “[p]hysical presence is a part of a reliable and predictable pattern

of attendance.”1 (Doc. 61-1 at Exhibit I) Additionally, the “Hillsborough County

Public Schools Policy Manual,” dated June 23, 2015, provides “Regular attendance

is an essential function of all employees. All employees who are absent from duty

must be on approved leave. Any employee who is absent from duty without ap-

proved leave may be subject to disciplinary action up to and including dismissal.”

(Doc. 61-1 at Exhibit C) Finally, the same policy manual requires that both instruc-

tional staff members and support staff members “shall maintain a standard of care for

1 During her deposition, Agrait acknowledged that her physical presence was expected at the work-

place. (Doc. 61-3 at 66:20)

the supervision, control, and protection of students commensurate with their as-

signed duties and responsibilities.” (Doc. 61-1 at Exhibits D-E)

In response to the COVID-19 pandemic, the school board adopted online

learning and temporarily loosened the longstanding expectation of a school board

employee’s physical presence at work. During the 2020–21 school year, Agrait pro-

vided her services “virtually” and the students she taught participated “virtually.”

(Doc. 61-3 at 84:12-86:4) However, by the 2021–2022 school year, Agrait’s students

attended school in-person, and Agrait was again required to service them in-person

as she had for more than two decades before the pandemic. (Doc. 61-3 at 84:12-

86:4)

In 2021, Agrait went to the hospital on two occasions: she was admitted in

August due to COVID-19 complications and again in December due to a stomach

virus. (Doc. 61-3 at 87:24; Doc. 61-3 at 101:21). Both ailments exacerbated Agrait’s

multiple sclerosis: her vision and balance worsened, she was unable to drive a long

distance,2 and her energy level dropped unpredictably. (Doc. 61-1 at ¶14; Doc. 61-3

at 129:24-130:4) After the second hospitalization, Agrait was fearful that returning to

in-person work risked further illness and might further exacerbate her multiple sclero-

sis. (Doc. 61-3 at 144:5-6) The School board does not dispute any of Agrait’s de-

scribed symptoms or their effect on Agrait’s ability to drive to work. (Doc. 61 at 4-5)

2 In her deposition, Agrait states that “it would be impossible” to drive to work on her own.

(Doc. 61-3 at 118:10-11)

On December 31, 2021, and again on January 20, 2022, even though her stu-

dents had returned to in-person classes, Agrait submitted requests to work from

home indefinitely. (Doc. 61-1 at ¶13; Doc. 61-1 at Exhibits E-F; Doc 61-2 at ¶8; Doc.

61-2 at Exhibit J; Doc. 61-3 at 112:3-113:4; 120:5-121:11) In support of these re-

quests, Agrait submitted two doctor’s notes dated January 14, 2022 and March 7,

2022. The first note states, “Please accommodate patient to work from home given

her increased symptoms from her Multiple Sclerosis.” (Doc. 61-1 at Exhibit E) The

second note states, “Patient continues to report significant dizziness and is unable to

drive at this point. Please accommodate her to work from home. Please also mini-

mize sources of stress given her neurological diagnosis of Multiple Sclerosis.” (Doc.

61-1 at Exhibit F)

In addition to the doctor’s notes, Agrait provided a proposal for the school

board to implement a “Pilot Program” (which, as Agrait admits, “has never been

done anywhere in the nation”) that would enable her to provide her services virtu-

ally. (Doc. 61-1 at Exhibit E; Doc. 61-3 at 123:19-20) This program would require

the School board to assign an employee to chaperone students attending virtual diag-

nostic sessions conducted remotely by an SLP working from home. (Doc. 61-2 at ¶9;

Doc 61-3 at 128:18-21) This meant the necessity of two or more employees to do

what formerly required only one. (Doc. 61-2 at ¶9; Doc 61-3 at 134:17-21)

Agrait’s requests to work from home were denied on January 13, 2022, and

again on January 25, 2022. (Doc. 61-1 at ¶15; Doc. 61-1 at Exhibit E; Doc. 61-2 at

¶10; Doc. 61-2 at Exhibit J) School board staff encouraged Agrait to discuss with her

doctor possible accommodations to enable her to work at school. (Doc. 61-1 at ¶15;

Doc. 61-1 at Exhibit E) Staff instructed that if she could not return to the workplace,

Agrait should contact a school board leave specialist to explore leave options. (Doc.

61-1 at ¶15; Doc. 61-1 at Exhibit E)

As an accommodation, the school board offered her a walker or other device

to help with her balance, offered her options to magnify documents to help her see,

offered her a dedicated handicapped-parking space, offered to move her office closer

to her dedicated parking space to minimize travel, offered her transfer to a Hills-

borough Virtual School (“HVS”) SLP position if one were to become available (be-

tween January 2022 and April 2022 one was not available), and offered her medical

leave. (Doc. 61-1 at ¶16; Doc. 61-3 at 130:15-22, 131:3-19, 132:10-24) Agrait re-

sponded that she did not need to use a walker or a device to magnify documents be-

cause she already used a scooter and eyeglasses. (Doc. 61-1 at ¶17; Doc. 61-3 at

130:15-22, 132:10-17) Agrait rejected the other proposed accommodations. (Doc. 61-

1 at ¶17)

Between February 4 and February 11, 2022, Agrait attempted to work re-

motely with the assistance of school personnel who were unaware Agrait’s work-

from-home requests had been denied. (Doc. 61-1 1 at ¶18; Doc. 61-2 at ¶¶11-12; Doc.

61-3 at 137:16-138:22) Specifically, Agrait directed personnel to put ESE students in

front of a computer at their designated start time and have the regular students go to

a separate area of the school for their SLP sessions. (Doc. 61-2 at ¶12; Doc. 61-3 at

140:3-23.)

One teacher complained to Agrait about this arrangement, including that she

was unsure the arrangement met the students’ needs, that only one paraprofessional

was available to facilitate the virtual sessions, and that the arrangement left affected

employees susceptible to liability. (Doc. 61-3 at 141:3-8, 21-23, 142:1-143:8) Agrait

conceded that these objections were “valid.” (Doc. 61-3 at 143:15-16) On February

17, 2022, learning Agrait was working from home without approval, school board

staff emailed Agrait and again informed her that remote work was unacceptable, that

Agrait was not approved to work from home, and that Agrait was marked “absent”

when she did not report to work on campus. (Doc. 61-1 at ¶19; Doc. 61-1 at Exhibit

G; Doc. 61-3 at 144:2-17)

Agrait later complained that she was not paid her full salary for the week of

February 7 through 11, 2022 while she worked remotely without approval. (Doc. 61-

1 at ¶21) The school board reviewed the matter and paid Agrait her full salary for

each day she performed work, specifically, February 8, 9, and 11, 2022. 3 (Doc. 610-1

at ¶21) Because Agrait never returned to work or initiated a leave of absence, she re-

ceived no paycheck, in accord with the school board’s February 17, 2022 email.

(Doc. 61-1 at ¶22; Doc. 61-3 at 144:15-17)

Consequently, on March 8, 2022, Craig Horstman, the General Manager of

Personnel Services, mailed Agrait a letter stating that she was absent without leave

since January 3, 2022, that she was told several times that remote work was not an

3 These were the days of the remote classes that Agrait was not even authorized to conduct.

option, that she must return to work or take a leave of absence, and that she was in

violation of the school board’s attendance policy. (Doc. 61-1 at ¶23; Doc. 61-1 at Ex-

hibits C and H; Doc. 61-3 at 150:18- 152:13) This letter instructed Agrait to discuss

with Mr. Horstman her options to remain employed. (Doc. 61-1 at Exhibit H)

On March 21, 2022, Agrait spoke to Mr. Horstman on the telephone, confirm-

ing that her options were return to work in-person (with accommodations as

needed), take a leave of absence, retire, or resign. (Doc. 61-1 at ¶24; Doc. 61-1 at Ex.

H; Doc. 61-3 at 152:14-25) Mr. Horstman further informed Agrait that, if she refused

all acceptable options, termination would result. (Doc. 61-1 at ¶24; Doc. 61-1 at Ex-

hibit H) Agrait refused all the options but continued to insist on the option to work

from home. (Doc. 61-3 at 153:13-16, 154:13-155:18) On April 1, 2022, Agrait’s em-

ployment was terminated. (Doc. 61-1 at ¶25; Doc. 61-1 at Ex. H; Doc. 61-3 at

156:12-18)

After Agrait’s termination, she brought this action, alleging that the school

board discriminated and retaliated against her based on her multiple sclerosis be-

cause (i) the school board failed to accommodate her request to work from home, (ii)

failed pay her for two days of work, and (iii) terminated her. (Doc. 1; Doc. 61-3 at

159:10-160:7, 161:20-25, 162:25-163:2, 164:14-23)

DISCUSSION

1. Count I and II – Disability Discrimination

The ADA prohibits a covered employer’s discriminating against “a qualified

individual with a disability because of the disability of such individual” in any of the

“terms, conditions, [or] privileges of employment.” 42 U.S.C. § 12112(a). To estab-

lish a prima facie case, Agrait must allege (1) that she has a disability, (2) that she is a

qualified individual, and (3) that the defendant unlawfully discriminated against her

because of the disability. Raytheon Co. v. Hernandez, 540 U.S. 44, 49 n. 3, 124 S.Ct.

513, 157 L.Ed.2d 357 (2003); D'Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1225–26

(11th Cir.2005).

“The term ‘qualified individual’ means an individual who, with or without

reasonable accommodation, can perform the essential functions of the employment

position that such individual holds or desires.” 42 U.S.C. § 12111(8). Agrait must

show either that she can perform the essential functions of her job without accommo-

dation or show that she can perform the essential functions of her job with a reasona-

ble accommodation. See Davis v. Fla. Power & Light Co., 205 F.3d 1301, 1305 (11th

Cir. 2000). If Agrait is unable to perform an essential function of her SLP job with a

reasonable accommodation she is by definition not a “qualified individual” and not

covered under the ADA. In other words, the ADA permits the schoolboard to main-

tain an “essential function of Agrait’s job.” See Davis, 205 F.3d at 1305; see also

Cramer v. Florida, 117 F.3d 1258, 1264 (11th Cir.1997). Therefore, the first issue is

whether in-person attendance is an essential function of the SLP position.

“Whether a function is essential is evaluated on a case-by-case basis by exam-

ining a number of factors.” Davis, 205 F.3d at 1305. The ADA prescribes considera-

tion of both the employer's judgment as to what functions of a job are essential and

the employer's written description of the job. 42 U.S.C. § 12111(8); see also Marquez v.

Costco Wholesale Corp., 550 F. Supp. 3d 1256, 1282 (S.D. Fla. 2021) (citing Holly v.

Clairson Indus., LLC, 492 F.3d 1247, 1258 (11th Cir. 2007)) (finding that in determin-

ing whether a particular job duty is an essential function of a position, a court is re-

quired by statute to consider a written job description and will give it substantial

weight). Regulations issued under the ADA provide for consideration of other fac-

tors, including (1) the employer’s judgment as to which functions are essential, (2) a

written job description prepared before advertising or interviewing applicants for the

job, (3) the amount of time spent on the job performing the function, and (4) the con-

sequences of not requiring the incumbent to perform the function. 29 C.F.R. §

1630.2(n)(3).

Considering the relevant factors, in-person attendance was an essential func-

tion of Agrait’s SLP position. First, the applicable statutory, regulatory, and case law

accord substantial weight to Agrait’s written job description and other evidence of

the school board’s judgment about essential functions. 42 U.S.C. § 12111(8); 29

C.F.R. § 1630.2(n)(3); Marquez, 550 F. Supp. 3d at 1282. The pertinent descriptions

include (1) section 3430 of the Hillsborough County Public Schools Policy Manual,

which provides that “[r]egular attendance is an essential function of all employees”;

(2) sections 3213 and 4213 of the same manual which provide that each instructional

and support staff member “shall maintain a standard of care for the supervision, con-

trol, and protection of students commensurate with their assigned duties and respon-

sibilities; and (3) the job description for Agrait’s position, which provides that “All

district employees must . . . [d]emonstrate regular and predictable attendance.

Physical presence is a part of a reliable and predictable pattern of attendance.” (Doc.

61-1 at Exhibit C, D-E, I)

Also, “substantial weight” is accorded to the “employer’s view” as to which

functions are essential. Holly, 492 F.3d at 1258. The affidavit of Danielle Shotwell,

General Manager of Employee Relations for the school board, affirms the school

board’s expectation of an employee’s presence on the job to adequately ensure the

safety of students. Shotwell’s January 1, 2022 email to Agrait, in which she instructs

Agrait “to discuss with [her] Doctor if there are accommodations that can be put in

place at the job site to assist [her] to work on site” further demonstrates that the

school board considered in-person attendance an essential function of Agrait’s posi-

tion. (Exhibit 61-1 at Exhibit E)

The third regulatory factor, “the amount of time spent on the job performing

the function,” disfavors Agrait because her “physical presence” was expected each

day of her job. (Doc. 61-1 at Exhibit I)

Finally, we turn to the “consequences of not requiring [Agrait] to perform the

function” of in-person attendance. As an SLP, Agrait worked with in-person stu-

dents. (Doc. 61-2 at ¶5; Doc. 61-2 at Exhibit I) Each day, she met approximately

twenty students in her office and without assistance, unless a specific student re-

quired a one-on-one aide. (Doc. 61-3 at 79:2-6, 79:22-80:11) Agrait acknowledges the

importance of adult supervision for the students, especially if an emergency occurs or

if the student is un-cooperative. (Doc. 61-3 at 127:25-128:6) Therefore, if Agrait is

not present in-person to meet with an in-person student, the school board must

provide another physically present adult during the SLP session to supervise her stu-

dents. (Doc. 61-2 at ¶9; Doc. 61-3 at 128:18-21)

Moreover, because Agrait was the only SLP working for Durant and Marshall

during the 2021–2022 school year, a “critical shortage” of SLPs resulted. (Doc. 61-2

at ¶7; Doc. 61-3 at 34:24-25, 62:8-10, 72:10-15) These factors strongly suggest that in-

person attendance is an essential function of Agrait’s position. See Holbrook v. City of

Alpharetta, 112 F.3d 1522, 1526 (11th Cir. 1997) (noting the likelihood that a specific

duty is an essential function of the job if only a limited number of employees are

available to perform the job and the function is so highly specialized and an em-

ployee is hired for their ability to perform the particular job).

Because the parties agree that Agrait was unable to work in-person without ac-

commodations (which she refused), she is not a “qualified individual” and her dis-

crimination claims fail as a matter of law unless she can demonstrate that she can

perform the essential functions of her job with reasonable accommodation.

See Holbrook, 112 F.3d at 1526.

Here, the only accommodation Agrait requested was to work from home in-

definitely. (Doc. 61-1 at ¶20; Doc. 61-3 at 119:11-120:1) But, as discussed, Agrait’s

in-person attendance was an essential function of her position and eliminating the es-

sential functions of a position is per se unreasonable. See Leme v. Southern Baptist

Hosp. of Fla., Inc., 248 F. Supp. 3d 1319, 1345-46 (M.D. Fla. 2017); see also Morris-

Huse v. GEICO, 748 F. App’x 264, 266–67 (11th Cir. 2018) (finding the plaintiff’s

work from home request unreasonable because the plaintiff could not perform the es-

sential functions of her position).

Moreover, allowing Agrait to work from home would require the school board

to hire a physically present employee during Agrait’s SLP sessions to chaperone the

students. (Doc. 61-2 at ¶9; Doc. 61-3 at 128:18-21) This would require two people for

the job of one.4 (Doc. 61-2 at ¶9; Doc. 61-3 at 134:17-21) In addition, not all students

are suited for virtual therapy services due to developmental or behavioral problems.

For these reasons, allowing Agrait to work remotely was not a reasonable accommo-

dation, which means that her prima facie claim for discrimination under the ADA

fails as a matter of law.

II. Count III – Retaliation

To establish a retaliation claim under the ADA, a plaintiff must show (1) that

she engaged in statutorily protected conduct, (2) that she suffered an adverse employ-

ment action, and (3) that a causal relation exists between the adverse action and her

protected expression. Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th

Cir. 1999).

Here, the school board concedes that Agrait engaged in the protected conduct

of requesting accommodations and ultimately suffered the adverse employment ac-

tion of termination. (Doc. 61 at 20) But Agrait has presented no direct evidence that

4 See Everett v. Grady Mem’l Hosp. Corp., 703 F. App’x 938, 943 (11th Cir. 2017) (finding that

plaintiff’s requested accommodation of working exclusively from home was not reasonable as other

employees would have had to take on the in-person aspects of plaintiff’s job).

her termination was motivated by retaliatory animus,” and the only circumstantial

evidence of retaliation she has presented is the timing of her termination. But “mere

temporal proximity, without more, must be very close.” Rives v. Lahood, 605 F. App'x

815, 19 (11th Cir. 2015) (finding that “a three to four month disparity between the

statutorily protected expression and the adverse employment action is not enough.”).

Accordingly, timing between Agrait’s requests to work from home in December 2021

and January 2022 and her termination in April, absent other evidence, was not sus-

pect enough to satisfy the causation prong of her retaliation claim. As such, Agrait’s

retaliation claim likewise fails for failure to establish a prima facie case.

CONCLUSION

The school board’s motion for summary judgment (Doc. 61) on each of

Agrait’s claims is GRANTED. The clerk must enter judgment for the defendant

against the plaintiff and CLOSE the case.

ORDERED in Tampa, Florida, on September 30, 2025.

Min WMirnnnyeleny

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

° Tn fact, the direct evidence presented by Agrait supports the school board’s position that

Agrait was terminated for legitimate, non-discriminatory reasons (i.e., her sustained failure to show

up to her job or take a leave of absence). (Doc. 61-1 at 9919, 21, 23-25; Doc. 61-1 at Exhibit H; Doc.

61-3 at 134:22-135:5, 153:4-16)

-13-