Opinion
Case No. 03-20943-Civ-Hoeveler/Bandstra.
July 13, 2004
ORDER GRANTING DEFENDANT MIAMI-DADE COUNTY'S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE comes before the court upon Defendant's Motion for Summary Judgment, filed on March 26, 2004. Plaintiff filed a Response to the Motion on April 23, 2004. Subsequently, on May 7, 2004 Defendant filed a Reply Memorandum in Support of its Motion for Summary Judgment. Upon review of the motions and relevant case law, Defendant's Motion for Summary Judgment will be granted.
BACKGROUND
Reynaldo Lopez (Plaintiff), a Hispanic/American, has worked as a Public Service Aide (P.S.A.) for Miami-Dade County (Defendant), since he was hired in 1989. In early 2000, while stationed at Doral District Police Station, his voice and accent was mimicked by other officers over the station P.A. system. No complaint was filed by the Plaintiff, although he allegedly experienced chest pains due to the incident.
In July of 2000, Plaintiff's supervisor referred him to undergo a fitness for duty evaluation. He was pronounced fit for duty by Dr. J. Thomas Kenney at Mt. Sinai Medical Center. However, Dr. Kenney did recommend a transfer in order to alleviate the harassment that the Plaintiff claimed he was being subjected to in Doral. Pursuant to Kenney's recommendation Plaintiff requested and received a transfer from Doral to the Hammocks District Police Station. A few months after his transfer officers in the Hammocks District Police Station mimicked his voice over the P.A. system with a heavy Spanish accent.
On February 1, 2001 Captain Bill Press a higher ranking officer and indirect supervisor at the Hammocks Station inquired about Plaintiff's medical problems. Plaintiff responded that he was doing better and that the Doctors had determined that his chest pains were attributable to job-related stress and not any apparent heart problem. Captain Press then allegedly told Plaintiff that what he was doing would not "hold water", and that Plaintiff might consider seeking work with the Parks Department if police work was too stressful.
On or about June 1 and July 11, 2001, Captain Press mimicked Plaintiff's speech in a heavy Latin accent. After the incident on July 11, 2001 Plaintiff reportedly felt ill and went to the Hammocks Fire station where his blood pressure was taken and reported as high. Following these events Plaintiff told Captain Press that he was offended when Press mimicked his voice in a heavy Latin accent.
On July 19-20, 2001, Plaintiff filed an interdepartmental complaint after Lt. Jorge Carnero, another higher ranking officer and indirect supervisor at the Hammocks Station, directed him to do so. Officer Bradley Boyd conducted an investigation pursuant to the complaint and on September 13, 2001 made a report to the Miami-Dade Police Department Disposition Panel as per Miami-Dade Police Department (MDPD) rules. The Disposition Panel did not sustain the Plaintiff's allegations.
Plaintiff contends that his complaint resulted in retaliation by Captain Press including: a) suspension for 18 months with pay, b) forcing him to undergo unnecessary psychological fitness for duty examinations (FFDE), c) delaying in the scheduling of those examinations, d) giving misleading information to Major Oscar Vigoa, Hammocks District Commander, and the County's examining psychologist to make Plaintiff appear unfit for duty, and e) instructing Lopez' co-workers to arrest Lopez if he were to return to the station.
Plaintiff was relieved of duty with pay on December 21, 2001 pending an FFDE, which Major Vigoa requested Plaintiff undergo. Vigoa justified his actions by citing Plaintiff's alleged abnormal behavior over the preceding months as well as Plaintiff's alleged obsession with weapons. The latter evidenced by Plaintiff's continued post-shift internet searching for weapons on MDPD computers, his attempt to dissuade a citizen from destroying a weapon so that that he could keep it, and his referring to his guns as his family.
On March 6, 2002 Plaintiff was found unfit for duty by Dr. Kenney and Dr. Karl E. Blackmun. Dr. Blackmun reported that Plaintiff was suffering from mild paranoia, and that he needed to see a psychiatrist for medication management and to stabilize his psychiatric condition. The report also stated that the Plaintiff had stopped seeing his psycho therapist since his last exam. Dr. Kenney, the same doctor that performed the 2000 evaluation, made a very similar report. Dr. Kenney's two reports both stated that Plaintiff had complained of a supervisor making racial slurs and mocking impersonations.
On July 2, 2002 Plaintiff filed charges with the Miami District office of the EEOC and with the Florida Commission on Human Relations. On January 23, 2003 the EEOC issued Plaintiff a Dismissal and Notice of Rights letter.
On April 18, 2003, Plaintiff filed the complaint at issue.
In August 2003, Plaintiff took his most recent FFDE, administered by Dr. Juan Carlos Paredes, and was declared emotionally stable and capable of returning to duty. Consequently, Plaintiff was reinstated as a P.S.A.
The Plaintiff's five Count Complaint seeks compensatory damages including back pay, lost future earnings, lost benefits, medical expenses, prejudgment interest, punitive damages, court costs, and attorneys fees. Plaintiff also seeks injunctive relief against Defendant, Miami-Dade County, as well as such other relief as the court deems just and appropriate.
In Count I Plaintiff alleges violation of Title VII of the Civil Rights Act of 1964. Specifically, Plaintiff contends that the Defendant has discriminated against him based on National Origin. Plaintiff also contends that Defendant has retaliated against him, in violation of Title VII. In seeking summary judgment, Defendant contends that the conditions Plaintiff was subjected to were not severe or pervasive enough to amount to a hostile work environment in violation of Title VII. Defendant also contends that Plaintiff is unable to satisfy the causation and adverse employment action prongs required to establish a prima facie case of retaliation.
In Count II Plaintiff alleges violation of the Americans with Disabilities Act (ADA). Plaintiff Contends that he is regarded as having an impairment as defined by the ADA, but can work with reasonable accommodation. Plaintiff also contend that Defendant has discriminated against him based on his disability by harassing and suspending him and placing him on leave. Plaintiff also alleges that Defendant has retaliated against him for pursuing his rights under the ADA. Defendant contends that Plaintiff is not disabled and consequently outside the purview of the ADA, making summary judgment appropriate.
In Count III Plaintiff alleges violation of 42 U.S.C. § 1983. Plaintiff contends that Defendant acting through its agents and employees has deprived Plaintiff of his right to
DISCUSSION
Summary judgment is warranted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of meeting this exacting standard. See Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). In determining whether summary judgment is appropriate, the facts and inferences from the facts are viewed in the light most favorable to the non-moving party, and the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).The non-moving party, however, bears the burden of coming forward with evidence of each essential element of her claims, such that a reasonable jury could find in his favor. See Earley v. Champion Int'l Corp., 907 F.2d 1077, 1080 (11th Cir. 1990). In response to a properly-supported motion for summary judgment, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
"The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial and requires the court to grant the motion for summary judgment. See Celotex, 477 U.S. at 322. If the non-moving party fails to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof then the court must enter summary judgment for the moving party. Gonzalez v. Lee County Hous. Auth., 161 F.3d 1290, 1294 (11th Cir. 1998).
A. Counts I and V — Discrimination Based on National Origin
Title VII prohibits discrimination in employment based on National Origin. Plaintiff alleges that he was discriminated against in violation of Title VII because the Defendant's agent's mimicry effectively established a hostile work environment.
To establish a prima facie case of harassment/hostile work environment under Title VII an employee must prove: (1) the employee belongs to a protected group; (2) the employee was subject to "unwelcome" harassment; (3) the harassment complained of was based on national origin; (4) the harassment affected a "term, condition, or privilege" of employment in that it was "sufficiently severe and pervasive to alter the condition of [the victim's] employment and create an abusive working environment"; and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action. Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554 (11th Cir. 1987). Defendant asserts that it is entitled to summary judgment on Plaintiff's Title VII claims because in order for national origin harassment to be actionable it must be so severe and pervasive as to alter the conditions of the victim's employment and create an abusive working environment. Harris v. Forklift Sts., Inc., 510 U.S. 17, 20-24, 114 S. Ct. 367, 370-1 (1993).
Plaintiff relies upon E.E.O.C. v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244 (11th Cir. 1997) (Woman sues employer for age discrimination based on derogatory comments) to support its claim that derogatory comments could be the basis for a hostile work environment claim. Massey is distinguishable on two independent grounds.
First, the comments in Massey were made on a daily basis. "In order to establish a hostile work environment claim the conduct complained of must be persistent and routine rather than isolated and sporadic in nature in order to be considered severe and pervasive as to alter the conditions of a plaintiff's employment." Prado v. L. Luria Son Inc., 975 F.Supp 1349, 1355 (S.D. Fla. 1997). Defendant argues, and this Court agrees, that the conduct in question here was not persistent and routine. Here the Plaintiff complains of three separate instances, one of which occurred in 2000 and the other two which occurred over a two month period in 2001.
Second, in Massey the comments were more severe than those in this instance. "Old bag" was arguably one of the least offensive comments of a myriad of lewd and vulgar remarks directed at the Plaintiff in Massey. Nothing the Plaintiff in this case complains of rises to the level of offensiveness of the least offensive comment in Massey. Therefore, the comments made by an agent of the Defendant were not severe or pervasive enough to establish a hostile work environment claim.
B. Counts I and IV — Retaliation
Plaintiff alleges that after he complained about the discriminatory treatment he felt he was receiving at the hands of the Defendant's agent, he was retaliated against in violation of Title VII. In order to establish a prima facie case of retaliation under Title VII the Plaintiff must show that: (1) he engaged in protected activity; (2) the employer was aware of that activity; (3) he suffered adverse employment action; and (4) a causal link between the protected action and the adverse employment decision. See Maniccia v. Brown, 171 F.3d 1364, 1369 (11th Cir. 1999). In moving for summary judgment, the Defendant contends that the Plaintiff has failed to establish prongs three and four of the test set forth in Maniccia. This court finds the Plaintiff's inability to satisfy the fourth prong dispositive.
The Defendant asserts that the Plaintiff has not suffered an adverse employment action which is necessary to establish a prima facie case of retaliation under Title VII. This Court recognizes the possibility that Plaintiff has suffered an adverse employment action based on the length of his paid administrative leave. This proposition is supported by Dickerson v. SecTek, Inc., 238 F. Supp.2d 66, 79 (D.D.C. 2002) ("when an employee is placed on paid administrative leave or suspended pending an internal investigation, that decision does not constitute adverse employment action, at least when the suspension is relatively brief"). However, there is no need to weigh the merits of such an argument as the Plaintiff fails the causation prong set forth inManiccia.
Defendant contends that this is a case where the only causal link provided by the Plaintiff was temporal proximity. "The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case hold that temporal proximity must be very close." Clark County School Dist. v. Breeden, 532 U.S. 268, 273-274, 121 S.Ct. 15087 (2001). Based on Breeden the Defendant contends that the five month interval between the complaint and the alleged retaliatory conduct is too large.Farley v. American Cast Iron Pipe Co., 115 F.3d 1548, 1555 (11th Cir. 1997) (affirming district court's grant of summary judgment in favor of defendant employer on retaliatory discharge claim where termination occurred six months after filing of grievance); Wascura v. City of South Miami, 257 F.3d 1238 (11th Cir. 2001) (holding that a 3 ½-month gap is insufficient).
The Plaintiff's argument that the temporal gap was only 2 ½ months is not compelling. In Breeden the Supreme Court did not refer to the time the official report was submitted in relation to the adverse action, but the time that the employer knew about the protected activity. It is apparent that Miami-Dade County, as the employer, knew about the complaint when it was filed as it was an internal investigation conducted by an employee of the Defendant. Alternatively, it is uncontested that Captain Press was made aware of the complaint on August 28, 2001. In the latter scenario there was a gap of four months between the date that the employer was made aware and the date of the alleged retaliatory activity. In either case the gap is insufficient to demonstrate a temporally based causal connection under Breeden and its progeny.
Plaintiff also asserts that there is more than "mere temporal proximity" Breeden at 273-274. Although the Eleventh Circuit has generally interpreted the causation requirement broadly to require that a plaintiff need only prove that the protected activity and the adverse employment action are "not completely unrelated", in this case the Plaintiff provides an unsupported assertion that there is more than a mere temporally based causal nexus. Meeks v. Computer Association Intern., 15 F.3d 1013, 1021 (11th Cir. 1994). "In order to defeat a motion for summary judgment addressed to a claim of retaliation based on her disability, the plaintiff must first present sufficient evidence to make out a prima facie case, that is, evidence sufficient to permit a rational trier of fact to find . . . (4) that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action." Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208 (2d Cir. 2001). Accordingly, such an unsupported assertion is not sufficient to support a prima facie case.
For the reasons stated above summary judgment must be granted as to Counts I, IV, and V.
C. Count II — Violation of the ADA
Plaintiff contends that the Defendant discriminated against him based on his alleged disability, and it retaliated against him for asserting his rights pursuant to the ADA, thereby violating the act. Defendant contends that the Plaintiff does not qualify and has never qualified as a disabled individual under the ADA.
The ADA defines a "disability" as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102 (2). Plaintiff relies on a Disciplinary Action Report (DAR) as evidence that the Defendant regarded the Plaintiff as disabled. Defendant contends and this Court agrees that the DAR is insufficient as evidence to illustrate that the Plaintiff was regarded as disabled under the ADA. The DAR stated only that the Plaintiff's "ailments or defects incapacitated him from proper performance of his duties." There is no indication that the Defendant regarded Plaintiff as incapable of performing a wide range of duties, just incapable as a P.S.A.
To be substantially limited in the major life activity of working, then, one must be precluded from more than one type of job, a specialized job, or a particular job of choice. If jobs utilizing an individual's skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs.Sutton v. United Air Lines, 527 U.S. 471, 492 (1999). FollowingSutton, although the Plaintiff was regarded as incapable of performing the function of a P.S.A. there were other types of administrative positions that were available. Plaintiff was not precluded from a broad range of jobs. Furthermore, the Eleventh Circuit has recently held that an individual's inability to work as a police officer does not comport with the ADA as a "class of jobs or a wide range of jobs." Rossbach v. City of Miami, 2004 U.S. App. Lexis 11111 (11th Cir. 2004). It follows that the Plaintiff was not "disabled" under the ADA. Therefore, summary judgment must be granted as to Count II.
D. Count III — Violation of 42 U.S.C. § 1983
Plaintiff alleges under Count III that the Defendant violated 42 U.S.C. § 1983. In order to state a claim under 1983 two allegations must be made. 1) That some person has deprived plaintiff of a federal right. 2) That the person who has deprived him of that right acted under color of state or territorial law.See Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163 (1993). The Defendant contends and this Court agrees that the individuals the Plaintiff's allegations are directed towards are mid-level managers and not policy makers. Therefore, § 1983 does not apply.
In Lawrence v. Metro Dade County, 872 F.Supp 957, 964 (S.D. Fla. 1994), this court held that the County could not be held liable under § 1983 for the allegedly discriminatory acts of its police department director and other supervisors even though the director had "the authority to establish specific employment policies for MDPD, [because] his decisions are clearly constrained by ordinances and resolutions passed by the Board of County Commissioners and administrative orders and policies promulgated by the County Manager." Accord Green v. Miami-Dade County, 2003 WL 22331877, *12 (S.D. Fla. 2003); Moreland v. Miami-Dade County, 255 F.Supp.2d 1304, 1307 (S.D. Fla. 2002);Buzzi v. Gomez, 62 F.Supp. 1344 (S.D. Fla. 1999) (County could not be held liable under § 1983 for police department supervisors' employment decisions).
Following Lawrence this court is compelled to find that the alleged deprivation was not made by county policy makers and § 1983 is not applicable. Therefore, summary judgment must be issued as to Count III.
CONCLUSION
Plaintiff has failed to provide material evidence in support of his claim that the Defendant is not entitled to summary judgment as to any of the five counts. For the reasons above, the court will enter summary judgment in favor of the Defendant.
Accordingly, it is hereby ORDERED and ADJUDGED that:
1. Defendant's motion for summary judgment is GRANTED. A final judgment will be issued in a separate order.
2. All pending motions are DENIED as MOOT.
DONE AND ORDERED.