ISRAEL

v.

CITY OF TAMPA

This cause comes before the Court on Defendant City of Tampa’s Motion for Summary Judgment (Doc. 37), Plaintiff Azariah Israel’s response in opposition (Doc. 44), and Defendant’s reply (Doc. 49). In this employment action, Plaintiff alleges that he was discriminated and retaliated against in violation of the Americans with Disabilities Act (“ADA”). Defendant seeks summary judgment as to both claims. Upon review and consideration, and being fully advised in the premises, the Court will grant the motion for summary judgment.

I. FACTS1

A. Plaintiff’s History with the Police Department and Medical Conditions Plaintiff served as a police officer with the Tampa Police Department (“TPD”) between 2009 and 2021. An arbitrator who reviewed his service history described his

In February 2020, Plaintiff received a new squad assignment in a different district than the one in which he had spent most of his career. See Doc. 37 at 4. His immediate supervisor, Sergeant Robin Polk, stated that she noticed Plaintiff exhibit a variety of what she described as “not typical behaviors” beginning in early March. Id.; Doc. 37-7. The behaviors included going outside of the chain of command on more than one occasion. Id. In late May of 2020, the city was placed in a state of emergency because of civil unrest in the aftermath of George Floyd’s death. Doc. 37 at 8. As a result, Sergeant Polk ordered her entire squad to report for duty at 10:00 AM on May 31. Doc. 37-10 at 2. Plaintiff initially told her he would report at 2:00 PM due to a childcare issue, but he did not arrive at that time or communicate a change to her. Id. When she contacted him at about³:00 PM, he responded that he would not have childcare until the following day. Id. The next day, two minutes into his scheduled shift, he notified Sergeant Polk that he would be taking FMLA leave. Id.; see also Doc. 37-9. The TPD initiated an investigation into Plaintiff’s May 31 and June¹ actions, which it believed constituted policy violations. Doc. 37-14 at 2. The investigation had not concluded by

August 2020. Id. During the investigation, Plaintiff’s treatment provider submitted a modified FMLA request stating that the frequency of his intermittent leave would need to be increased to four days every two weeks, “[d]ue to increased severity of symptoms.” Doc. 37-6 at 5.

B. August 2020 Incident

Plaintiff did not work during most of July 2020 because of planned travel and COVID-19 quarantine requirements. Doc. 37-8. Although he was scheduled to return to work on August⁵, 2020, he notified Polk the week before that he would be taking FMLA leave that day. Doc. 37-7 at 4. On the evening of August⁴, turning into the early morning of August⁵, Plaintiff and his family returned home from a trip to the Virgin Islands. Doc. 37-4 at 138. Soon after they got home, Plaintiff’s wife called the TPD to report a domestic dispute. Id.;

Doc. 37-24 at 23. Plaintiff told responding officers that he refused to give his wife the keys to the car she normally used because he intended to “put a tracker on it for the safety of his children.” Id. at 24. He explained in his deposition that she had previously tried to abscond with the children when they were having marital problems. Doc. 37- 4 at 140-141. His wife did not report any physical violence, and both he and his wife told the officers that they intended to divorce. Doc. 37-24 at 23-24. The police determined that no criminal acts were committed. Doc. 37-14 at 1-2. Plaintiff then left his home for the night. Id. at 2. The following afternoon, August⁵, TPD responded to a second call at Plaintiff’s home. Doc. 37-24 at 26. Plaintiff’s wife reported that he had physically abused one of their sons through excessive discipline while they were on vacation. Id. at 28. Plaintiff denied the allegation. Id. at 32-33. The child abuse investigation was closed on August 13, with the investigator noting that he could not “establish a criminal offense has occurred.” Doc. 37-24 at 35.

The captain of Plaintiff’s unit, Eric DeFelice, was notified on August⁵ that there had been a second call to Plaintiff’s residence in less than 24 hours. Doc. 37-14 at 3. DeFelice explained that he decided to go to Plaintiff’s home while the investigating officers were there, to “check on [Plaintiff’s] wellbeing”; the parties agree he was not acting in an investigatory capacity. Id.; Doc. 48 at 1. DeFelice and Plaintiff spoke for about two hours. Doc. 37-14 at 3. Plaintiff informed DeFelice that he was going through marital problems and that he suffered from PTSD. Id.; Doc. 48 at 1.2 DeFelice wrote down his observations from their conversation in a detailed memorandum dated August⁶, 2020. Doc. 37-14 at 3. He wrote that Plaintiff was: very emotional, exhibiting signs of severe stress and anxiety. He was fidgety, could not sit still and was making very animated hand gestures. He had numerous angry outbursts, was talking to himself, and also was incoherently mumbling.

When Ofc Israel was questioned by officers he had difficulty focusing, would forget the question that was asked and would continue to discuss matters even after the interviewers moved on.

On several occasions I observed Ofc Israel continuously bang his open hands against his head while talking to himself. He called himself stupid and had quiet conversations with himself.

Id. DeFelice decided to relieve him from duty and place him on paid administrative leave. Id.; Doc. 48 at 2. The administrative leave notification stated that it was “not a disciplinary measure, but based on your recent involvement as a subject in an investigation.” Doc. 37-12. According to DeFelice, Plaintiff agreed to voluntarily turn over his personal firearms for safekeeping once DeFelice placed him on administrative leave. Doc. 37- 14 at 4; see also Doc. 37-24 at 26. Plaintiff then left his home for the night. Doc. 37-14 at 4.

Polk: FYI—heard you have had a day. Don’t worry about work and if u need resources feel free to reach out. I have both civilian and police resources ready to help fellow officers and veterans…take care of yourself and let me know if we can assist in any way.

Israel: I just don’t know what to say after today…thanks for letting me know

Polk: Ur well being is important to all of us. We are family as far as I am concerned and we all need an outlet :)

Israel (11:45 PM): Sarge, I feel like ima do something stupid…I really need to go back to my family in Jacksonville…I need to be with my mom and my brothers…I can’t stay here…not good to be here…I don’t want to be police no more….

Polk (5:03 AM): Azariah, just waking up to this text. Are you ok?

Israel (9:35 AM): I’ll be ok, thx

Doc. 37-13 at 2-5 (ellipses in original). Polk and DeFelice met Plaintiff at a doctor’s office the following morning, August 6. Doc. 37-7 at 4-5. According to Polk, Plaintiff told her he did not remember sending the 11:45 PM text message because he had been drinking. Id. at 5. She also said that he “started hitting his head with his hand,” “saying he was stupid for taking his wife back,” and seemed to have difficulty finding words and completing simple tasks. Id. DeFelice suggested to Plaintiff that he allow himself to be evaluated for voluntary commitment, and he agreed. Id. The three of them traveled to the VA hospital for the evaluation. Id. Plaintiff was released from the hospital later that day. Doc. 37-14 at 4. He met with Polk and DeFelice again on August⁷ and appeared to be in a much calmer state of mind. Id. at 5.

C. Administrative Actions and Procedural History

After taking custody of his personal firearms on August⁵, Defendant advocated to prevent Plaintiff from regaining access to firearms by filing a petition for a risk protection order. Doc. 37-24 at 3. After a hearing on August 31, 2020, the petition was denied on September 17. Id. at 3-5. The court found there was “insufficient evidence that [Plaintiff] poses a significant danger to himself or others by owning or possessing a firearm,” and that a temporary risk protection order had only been issued “due to isolated marital issues.” Id. at 3. Plaintiff remained on paid administrative leave for the remainder of his employment with the TPD. See Doc. 37-2 at 17. He was ordered to participate in a fitness for duty examination before he could return to active duty. See Doc. 37-4 at 168-69; Doc. 12 ¶ 30. Plaintiff was referred to Dr. Stephen O’Neal for the examination. Doc. 37-8 at ¶ 4. Soon afterward, Dr. O’Neal informed Defendant that he could not declare Plaintiff fit for duty without seeing his treatment records from the

VA, but that Plaintiff had refused to sign a release form authorizing him to access them. Id. In a meeting on September 17, 2020, DeFelice ordered Plaintiff to sign the release. Id. Plaintiff did so, but revoked it the next day by contacting the VA. Id.; Doc. 48 at 2. Defendant states that it did not learn about the revocation until much later. Id.; Doc. 49 at 7-8. Plaintiff requested a different examiner, and in early December he was referred,

with his consent, to Dr. Richard Cipriano. Doc. 37-8 ¶¶ 6-7. On December 16, 2020, Dr. Cipriano informed Defendant that Plaintiff had refused to release his VA records, and that he could not find him fit for duty until he did so. Id. ¶ 8; Doc. 37-19 at 2. Plaintiff remained on paid administrative leave.

Plaintiff filed a charge of discrimination against Defendant with the Equal Employment Opportunity Commission (“EEOC”) and the Florida Commission on Human Rights on February 23, 2021. Doc. 37-21. He alleged discrimination and retaliation based on his race, religion, and disability. Id. On April 14, 2021, a meeting occurred at the request of Plaintiff’s union attorney, who asked that Plaintiff be given a final opportunity to comply with the order to sign the release for his VA records. Doc. 37-8 ¶ 9. At the meeting, Tampa Police Chief Brian Dugan ordered Plaintiff to execute the release. Id. Plaintiff “said he would not comply.” Id.; see also Doc. 48 at 2. Plaintiff was terminated on April 28, 2021. Doc. 37-22. In a Notice of Disciplinary Action dated April 21, 2021, Defendant informed Plaintiff that he was being terminated for disobeying the orders to complete the fitness for duty evaluation, which constituted insubordination. Id. Plaintiff initiated this action on December⁸, 2021, and the case was subsequently removed to this Court. Docs. 1, 1-1. He alleges that Defendant discriminated and retaliated against him based on his disability in violation of the ADA. Doc. 12. In Count I, he alleges that Defendant discriminated against him by, immediately after learning of his disability on August⁵, placing him on administrative leave, subjecting him to a risk protection hearing, forcing him to undergo a fitness for duty evaluation, and requesting his medical records. Id. ¶¶ 50-57. In Count II, he alleges that he was terminated in retaliation for filing the EEOC charge two months earlier. Id. ¶¶ 59-65.3 Defendant now moves for summary judgment as to both counts.

II. LEGAL STANDARD

Summary judgment is appropriate only when the court is satisfied that “there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law,” after reviewing the “pleadings, the discovery and disclosure materials on file, and any affidavits[.]” Fed. R. Civ. P. 56(c)(2). In determining whether a genuine issue of material fact exists, the Court must consider all the evidence in the light most favorable to the nonmoving party. Shotz v. City of Plantation, Fla., 344 F. 3d 1161, 1164 (11th Cir. 2003). Issues of fact are “genuine only if a reasonable jury,

The moving party bears the initial burden of stating the basis for its motion and identifying those portions of the record demonstrating the absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986); Hickson Corp. v. N. Crossarm Co., 357 F. 3d 1256, 1259-60 (11th Cir. 2004). That burden can be discharged if the moving party can show the court that there is “an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325. “Only when that burden has been met does the burden shift to the non-moving party.” Clark v. Coats & Clark, Inc., 929 F. 2d 604, 608 (11th Cir. 1991). “[I]n order to survive summary judgment, the nonmoving party must set forth specific facts showing there is a genuine issue for trial.” Johnson v. New Destiny Christian Ctr. Church, Inc., 826 F. App’x 766, 770 (11th Cir. 2020) (citing Anderson, 477 U.S. at 249-50). “[U]nsupported ‘conclusory allegations’ do not suffice.” Middlebrooks v. Sacor Fin., Inc., 775 F. App'x 594, 596 (11th Cir. 2019). Likewise, “[a] ‘mere existence of a scintilla of evidence’ cannot suffice to create a genuine issue of material fact.” Johnson,

826 F. App’x at 770 (quoting Anderson, 477 U.S. at 252).

III. DISCUSSION

A. ADA Discrimination (Count I)

The ADA prohibits discrimination in employment “against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). A plaintiff alleging disability discrimination must demonstrate that: (1) he is disabled; (2) he was a “qualified individual” when he was terminated, and (3) he was discriminated against on account of his disability. Frazier-White v. Gee, 818 F. 3d 1249, 1255 (11th Cir. 2016) (citation omitted). Where a plaintiff relies on circumstantial evidence of discrimination, rather than direct evidence, courts apply the McDonnell-Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Cleveland v. Home Shopping Network, Inc., 369 F. 3d 1189, 1193 (11th Cir. 2004). First, the plaintiff must establish a prima facie case of disability discrimination through the three elements above. Id. The burden then shifts to the employer “to articulate a legitimate, non-discriminatory reason” for the adverse employment action. Id. The employer’s burden is “exceedingly light.” Perryman v. Johnson Prods. Co., 698 F. 2d 1138, 1142 (11th Cir. 1983). If the employer meets its burden, the plaintiff will not survive summary judgment unless he presents sufficient evidence to create an issue of fact that the articulated reason was a pretext for discrimination. Cleveland, 369 F. 3d at 1193; Duckworth v. Pilgrim’s Pride Corp., 764 F. App’x (11th Cir. 2019). In Count I of the Amended Complaint, Plaintiff asserts that he was discriminated against because of his disability when, after becoming aware of his disability, Defendant subjected him to a risk protection hearing, suspended him, made him undergo a fitness for duty exam, requested all his medical records, and ultimately terminated him. Doc. 12 ¶¶ 54-56. He does not offer direct evidence of discrimination, instead relying on the fact that the adverse actions immediately followed the disclosure of his disability as evidence that they were causally related. Id. Defendant argues that it is entitled to summary judgment as to the discrimination claim. Doc. 37. Although it concedes there are genuine issues of fact with respect to the first and second elements of prima facie discrimination, Defendant asserts it is entitled to summary judgment because Plaintiff cannot prove the third element: that he experienced discrimination because of his disability. Id. at 19.

Specifically, Defendant argues that Plaintiff did not experience an adverse employment action because he was placed on paid leave, the fitness-for-duty examination was lawful, and the risk protection hearing did not result in a loss of freedom. Id. at 19-22. Moreover, it contends that Plaintiff has not shown that its articulated reason for taking those actions was pretextual. Id. at 22.

In response, Plaintiff argues that he has established a prima facie case of discrimination. Doc. 44 at 6. He asserts that the events and actions Defendant identifies that led up to the August 2020 incident are irrelevant because they were so minor that they did not result in discipline, let alone a fitness for duty examination; and that events occurring after he was placed on administrative leave cannot be considered because the adverse action was already taken by then. Id. at 7-8. Plaintiff does not use the term “pretext,” but argues that Defendant’s decision to remove him from duty “was squarely based on Plaintiff’s disclosure of his disability,” because,

“[w]hen Defendant removed Plaintiff from duty, Plaintiff had not exhibited any new or different behaviors which would have justified Defendant’s actions.” Id. at 8. In addition, Plaintiff contends that the risk protection petition Defendant filed against him resulted in a significant loss because he was deprived of his property and his Second Amendment rights for nearly a month. Id. at 8-9.

Defendant replies to point out that Plaintiff has apparently abandoned his original claim that he was terminated because of his disability. Doc. 49 at 2. In addition, it continues to argue that neither a paid suspension nor a fitness for duty examination is an adverse employment action. Id. at 3-4. Defendant also argues that

Plaintiff has failed to dispute its evidence regarding the non-discriminatory reason for the allegedly adverse actions. Id. at 5-6. For the purpose of the motion for summary judgment, the Court need not resolve the parties’ disputes regarding whether Plaintiff experienced an adverse employment action under the third element of a prima facie case. See Scott v. Suncoast

Beverage Sales, Ltd., 295 F. 3d 1223, 1228 (11th Cir. 2002) (assuming for the purpose of pretext analysis that plaintiff made out a prima facie case of discrimination). As in Scott, the Court will assume, arguendo, that Plaintiff established a prima facie case of discrimination. However, Defendant is entitled to summary judgment because Plaintiff has not met its burden of proof under the final step of the McDonnell-Douglas framework, because a reasonable jury could not conclude that Defendant’s proffered reason for the adverse actions was discriminatory. First, Defendant has adequately satisfied its “extremely light burden” of identifying a legitimate, non-discriminatory reason for the actions it took against Plaintiff. See Perryman, 698 F. 2d at 1142. Defendant has produced evidence that Plaintiff was placed on administrative leave, required to take a fitness for duty exam, and recommended for a risk protection order because of behavior that Captain DeFelice observed on August⁵, 2020. DeFelice gave a detailed, written description of the behavior within a day of observing it. Doc. 37-4. He described that Plaintiff was displaying signs of severe stress and anxiety, which included erratic angry outbursts, difficulty focusing, talking to himself while in conversation with DeFelice and another officer, incoherent mumbling, hitting himself on the head, and calling himself stupid. Id. at 3. DeFelice’s account of this behavior is corroborated, at least in part, by Polk’s description of Plaintiff’s similarly erratic behavior the following day, as well as the concerning text message Plaintiff sent Polk shortly after speaking with DeFelice. See Docs. 37-7, 37-13. When the described behavior is viewed in the context of someone who was under investigation for child abuse,⁴ had been the subject of two calls for domestic disputes within 24 hours, and whose job performance was already under review, see id. at 2, it was not objectively unreasonable to conclude that Plaintiff should

The employer “need not persuade the court that it was actually motivated by the proffered reasons.” Wilson v. B/E Aerospace, Inc., 376 F. 3d 1079, 1087 (11th Cir. 2004) (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55, (1981)). The reason must be “one that might motivate a reasonable employer.” See Chapman v. AI Transp., 229 F. 3d 1012, 1030–31 (11th Cir. 2000). The employer, therefore, only needs to “produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus.” Tex. Dep't of Cmty. Affairs, 450 U.S. at 257, 101 S.Ct. 1089.

Duckworth, 764 F. App'x at 853. Plaintiff’s described behavior certainly “might motivate a reasonable employer” to remove a police officer from duty, require him to undergo a fitness for duty exam before returning, and attempt to remove his access to firearms. See id. Based on the proffered evidence, a jury could rationally conclude that the adverse actions were not motivated by discriminatory animus. Defendant has met its burden. Accordingly, the burden of proof shifts back to Plaintiff to provide or identify evidence from which a reasonable juror could conclude that the non-discriminatory reason was pretextual. See Duckworth, 764 F. App'x at 854 (“A plaintiff must meet the employer's given reason head on and rebut it[.]”), citing Chapman v. AI Transport, 229 F. 3d 1012, 1030 (11th Cir. 2000). But Plaintiff has not done so. Rather, his response in opposition to Defendant’s motion for summary judgment ignores the entire existence of the report of Plaintiff’s behavior on August⁵, except to claim, vaguely and without support, that Plaintiff “had not exhibited any new or different behaviors which would have justified Defendant’s actions.” Doc. 44 at 8. Yet, as Defendant correctly observes, “Plaintiff does not dispute DeFelice’s account or allege mendacity.” Doc. 49 at 5. He does not argue that DeFelice’s description of his behavior is incredible. Nor does he cite any evidence that contradicts or casts doubt on it. See Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact…is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record…; or (B) showing that the materials cited do not establish the…absence of a genuine dispute[.]”); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (“Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and…designate ‘specific facts showing there is a genuine issue for trial’”); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986) (“The plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment.”); see also Ring v. Boca Ciega Yacht Club Inc.,⁴ F. 4th 1149, 1163-64 (11th Cir. 2021) (plaintiff’s failure to even “attempt to rebut” one of defendant’s offered reasons for adverse actions entitled defendant to summary judgment). Indeed, Plaintiff’s own account of August⁵ does not fully contradict

DeFelice’s.⁵ In his rebuttal to Defendant’s response to the EEOC charge, he explained that DeFelice’s description of his behavior “discounts the circumstances of the

Id. at 167-68. Plaintiff denied hitting himself in the head. Id. at 168.6 A party’s own self-serving statements based on personal knowledge or observation can, in some cases, defeat summary judgment. United States v. Stein, 881 F. 3d 853, 857 (11th Cir. 2018). Here, however, Plaintiff’s equivocal statements are not enough to establish a genuine dispute of fact regarding his behavior on August 5. “A mere scintilla of evidence…will not suffice” to defeat summary judgment; rather, “there must be enough of a showing that the jury could reasonably find for that party.”

is unavailing. The observed behavior took place at the same time as the disclosure. As noted, there is no other evidence from which a jury could conclude that the disclosure was more likely—to even as likely—to cause the adverse actions than the observed behavior. Therefore, the temporal proximity alone is not enough to create a genuine issue of fact as to the credibility of the articulated reason. Frazier-White v. Gee, 818 F. 3d 1249, 1258 (11th Cir. 2016). A retaliation claim based on circumstantial evidence follows the same McDonnell-Douglas burden-shifting framework as a discrimination claim. Therefore, once the plaintiff has established a prima facie case of retaliation, the burden of proof shifts to the employer to articulate a legitimate, non-retaliatory explanation for taking the adverse action. See Ring v. Boca Ciega Yacht Club Inc.,⁴ F. 4th 1149, 1163 (11th Cir. 2021) (citation omitted).⁸ If the employer meets its burden, the plaintiff must show that the proffered reason is a pretext for retaliation. Id. A reason cannot be proved to be a pretext for retaliation unless it is shown both that the reason was false and that retaliation was the real reason. Id., citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). In Count II of the Amended Complaint, Plaintiff alleges that he was terminated on April 28, 2021, in retaliation for filing an EEOC charge of discrimination on

February 23, 2021. Doc. 12 ¶¶ 41-42, 61-63. He alleges that he would not have been terminated if he had not filed the EEOC charge. Id. ¶ 64. In its motion for summary judgment, Defendant argues that Plaintiff has failed to offer evidence from which a jury could find a causal relationship between the EEOC charge and the termination. Doc. 37 at 23. It asserts that temporal proximity of more

Chae sas Cuda as Wana A gl ell Q_ Charlene Edwards Honeywell United States District Judge Copies furnished to: Counsel of Record Unrepresented Parties