BROWN

v.

ADVANCED CONCEPT INNOVATIONS, LLC

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

This matter is before the Court on “Defendant’s Motion for Summary Judgment and Incorporated Memorandum of Law,” filed on November 12, 2020. (Doc. 38). Plaintiff Timethia Brown filed a response in opposition on December 10, 2020. (Doc. 45). Upon review of the motion, response, court file, and the record, the Court finds as follows: Background¹ Plaintiff is a former employee of Defendant Advanced Concept Innovations, LLC, a contract packaging and manufacturing company. According to Plaintiff, she suffered from ptyalism during a difficult pregnancy.2 Plaintiff alleges that she was

Title VII (Count III), and pregnancy discrimination under Title VII, as amended by the Pregnancy Discrimination Act (Count IV). Although these claims are brought under different statutory schemes, the analysis of each claim involves similar legal frameworks and tests. Disability Discrimination (Count I) In its motion for summary judgment, Defendant first argues that Plaintiff cannot establish a prima facie case of disability discrimination. “[D]isabilitydiscrimination claims under the FCRA are analyzed using the same framework as ADA claims.” Holly v. Clairson Indus., L.L.C., 492 F. 3d 1247, 1255 (11th Cir. 2007). To establish a prima facie case for disability discrimination, a plaintiff must show: (1) she has a disability, (2) she is a qualified individual with or without a reasonable accommodation, and (3) she was discriminated against because of her disability. Id. at 1255-56. Defendant appears to only contest the first and third elements.³

Defendant argues that Plaintiff cannot show that she has a disability because she cannot demonstrate that her temporary condition – ptyalism – substantially limited one or more of her major life activities or was so severe or atypical to rise to the level of being a disability since the only limitation she had was the urge to constantly spit. The Court disagrees. Plaintiff has asserted and put forth evidence to show that ptyalism limited her ability to work, which is a major life activity. See 29 C.F.R. § 1630.2(i)(1)(i) (explicitly including “working” as a major life activity). “Determining whether the impairment substantially limits a major life activity is ordinarily a question of fact for the jury. . . .” Irizarry v. Mid Fla. Cmty. Servs., Inc.,

No. 8:08-cv-454-T-17TBM, 2009 WL 2135113, *3 (M.D. Fla. July 14, 2009). Furthermore, although Plaintiff’s pregnancy-related ptyalism may have only been a “temporary” condition that occurred during her pregnancy, temporary pregnancyrelated conditions and complications can constitute disabilities under the ADA. See, e.g., Mayorga v. Alorica, Inc., No. 12-21578-CIV, 2012 WL 3043021, at *5 (S.D. Fla. July 25, 2012) (“[W]here a medical condition arises out of a pregnancy and causes an impairment separate from the symptoms associated with a healthy pregnancy, or significantly intensifies the symptoms associated with a healthy pregnancy, such medical condition may fall within the ADA’s definition of disability.”). “[T]he determination of whether the nature, duration, and severity of [pregnancy] complications and symptoms qualify as a disability under the ADA is usually a question of fact that requires an individualized determination. . . .” Id. Viewing the facts in light most favorable to Plaintiff, as the Court is required to do at this stage of the proceedings, the Court finds that Plaintiff has provided sufficient evidence for a reasonable jury to find that she was significantly restricted as to the conditions and manner of her ability to work as compared to the average person. Consequently, a reasonable jury could find that Plaintiff suffered from an impairment at the time her employer refused to accommodate her and instead discharged her. See Gabriel v. City of Chicago, 9 F. Supp. 2d 974, 981 (N.D. Ill. 1998). Discrimination

Defendant further argues that Plaintiff cannot establish that she was discriminated against on the basis of her disability because there is no direct or circumstantial evidence to show that the disability had anything to do with the decision to deny her accommodation request, which was unreasonable. Plaintiff asserts that she was terminated because of her condition. The record in this case shows that Plaintiff suffered from a condition that does not appear to be a function of a normal pregnancy. She requested an accommodation to use a spit cup, and when that accommodation was denied, she felt she had no choice but to resign.⁴ Based on these facts, a reasonable jury could conclude that she was discriminated against on the basis of her disability. Although Defendant contends that Plaintiff’s accommodation request was unreasonable, the reasonableness of an accommodation request is traditionally a question of fact for the jury to determine. See Snead v. Fla. Agric. & Mech. Univ. Bd. Of Trs., 724 F. App’x 842, 847 (11th Cir. 2018) (concluding that district court did not err in denying judgment as a matter of law because, among other things, a reasonable jury could have determined that requested ADA accommodation was

Defendant is a contract packaging and manufacturing company that is ISO certified and FDA-regulated for medical devices, drugs, food, and cosmetics. Defendant contends that the requested accommodation – use of a spit cup – would violate its own sanitary and cleanliness policies, federal guidelines, and contractual obligations. By producing a nondiscriminatory reason for its actions, Defendant has met its burden of production, and the burden shifts back to Plaintiff to show that Defendant’s proffered reason is pretextual. Pretext

The Eleventh Circuit has observed that “[a] reason is pretextual only if it is false and the true reason for the decision is discrimination.” Hicks-Washington v. Hous. Auth. of City of Fort Lauderdale, 803 F. App’x 295, 303 (11th Cir. 2020); Langford v. Magnolia Adv. Mat., Inc., 709 F. App’x 639, 641 (11th Cir. 2017) (“An employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.”). Evidence of pretext must be enough to “allow a reasonable finder of fact to conclude that the [employer’s] articulated reasons were not believable.” Callahan v. City of Jacksonville, Fla., 805 F. App’x 749, 753 (11th Cir. 2020) (quoting Brooks v. Cty. Comm’n of Jefferson Cty., 446 F. 3d 1160, 1163 (11th Cir. 2006). The evidence must, therefore, be sufficient to render the employer’s nondiscriminatory explanations for its actions “unworthy of credence.” Texas Dep’t of Community

Affairs v. Burdine, 405 U.S. 248, 256 (1981) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973)). “The focused inquiry . . . requires the plaintiff to demonstrate ‘such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the [defendant’s] proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.’” Rioux v. City of Atlanta, Ga., 520 F. 3d 1269, 1275 (11th Cir. 2008) (quoting Combs v. Plantation Patterns, 106 F. 3d 1519, 1538 (11th Cir. 1997)). In this case, Plaintiff contends that the requested accommodation – the use of a spit cup – could have been made since the vast majority of her job (80-90%) did not involve her going into the lab or other “clean” parts of the business.⁵ She did not work primarily on the production floor; she was a clerical worker who worked in a trailer. See (Doc. 39-3 Muller Deposition at 16-17). She also had no access to the clean space where medical devices and implants were handled. See (id. at 10-11). Based on this evidence, it appears that a reasonable jury could find Defendant’s proffered non-discriminatory reason pretextual. Because there is a genuine issue of material fact as to whether Defendant’s proffered reason to not accommodate Plaintiff’s disability was pretextual, summary judgment is not appropriate on this claim. Pregnancy Discrimination (Count IV) Title VII prohibits employers from discriminating “against any individual with respect to [her] compensation, terms, conditions, or privileges of employment,

because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). “The phrase ‘because of sex’ or ‘on the basis of sex’ in Title VII includes ‘because of or on the basis of pregnancy, childbirth, or related medical conditions.’” Hubbard v. Meritage

Defendant additionally argues that Plaintiff’s pregnancy discrimination claim is untimely because it was not included in her initial complaint that was filed before the expiration of the 90-day filing period. The pregnancy discrimination claim was instead included in the amended complaint, filed outside of the 90-day window. The Court has already addressed this same argument and concluded that the pregnancy discrimination claim is timely because it arises out of the same conduct, transaction, or occurrence set forth in the original complaint. (Doc. 29). As such, the Court finds the motion for summary judgment is due to be denied as to Count IV.

Race Discrimination (Count II) In the motion, Defendant next argues that Plaintiff cannot establish a prima facie case of racial discrimination. Under the McDonnell Douglas framework, the plaintiff must first make out a prima facie case for racial discrimination by showing: (1) she belongs to a protected class; (2) she was subjected to an adverse employment action; (3) she was qualified to perform the job; and (4) her employer treated

“similarly situated” employees outside her class more favorably. Lewis v. City of Union City, Ga., 918 F. 3d 1213, 1220-21 (11th Cir. 2019); see also McDonnell Douglas Corp., 411 U.S. at 802. Establishing a prima facie case creates an initial presumption of discrimination. Flowers, 803 F. 3d at 1336. The burden then shifts to the defendant to “articulate a legitimate, nondiscriminatory reason for its actions.” See Lewis, 918 F. 3d at 1221 (quoting Burdine, 405 U.S. at 253). “Once the employer advances its legitimate, nondiscriminatory reason, the plaintiff’s prima facie case is rebutted and all presumptions drop from the case.” Flowers, 803 F. 3d at 1336 (citing Burdine, 450 U.S. at 255). The burden then shifts back to the plaintiff to demonstrate that the defendant’s reasons were a pretext for discrimination. Lewis, 918 F. 3d at 1221. Here, the Court finds that Plaintiff has established a prima facie case for racial discrimination. Plaintiff belongs to a protected class as an African-American. She was subject to an adverse employment action – constructive termination.⁶ Plaintiff was qualified to do the job. The only element at issue, therefore, appears to be the fourth element – whether Plaintiff has identified any similarly situated employees outside of her class that have been treated more favorably. In her response in opposition, Plaintiff points to a biracial employee – Preeshee Gilmore – who was permitted to use a spit cup when she was suffering from the same pregnancy-related condition that Plaintiff suffered from. The Court finds that Gilmore qualifies as a similarly situated employee in all material respects, and Plaintiff has shown that Gilmore was treated more favorably. As such, Plaintiff has established a prima facie case of racial discrimination. For the reasons discussed above, the Court finds that Defendant has produced a valid, nondiscriminatory reason for its actions, and that Plaintiff has provided sufficient evidence to establish that Defendant’s proffered reason to deny her requested accommodation was pretextual. Defendant also argues that Plaintiff’s race discrimination claim is procedurally deficient because she did not exhaust her administrative remedies prior to filing suit. The Court has already addressed this argument – it concluded

U.S.C. § 2000e-2(a)(1). To establish a prima facie case of gender discrimination, a plaintiff must show “that (1) she is a member of a group protected by Title VII, (2) she is entitled to, or qualified for her position, (3) she suffered an adverse employment action, and (4) she was treated less favorably than similarly situated employees who are not members of her protected class.” Brockman v. Avaya, Inc., 545 F. Supp. 2d 1248, 1252 (M.D. Fla. 2008). To the extent that Plaintiff’s gender discrimination claim is based on her pregnancy and pregnancy-related condition, the Court’s analysis of Count IV applies. The motion is denied as to this ground. To the extent that Plaintiff’s gender discrimination claim is based on anything else, she has not put forth sufficient evidence to survive summary judgment. Plaintiff has not identified any comparators treated differently on the basis of gender outside of the pregnancy issues discussed as part of the Court’s analysis of Count IV. She also has not presented any circumstantial evidence to create a triable issue of fact as to whether Defendant intended to discriminate against Plaintiff based on her gender outside of the pregnancy issues discussed. See Hubbard, 520 App’x at 863 (“A triable issue of fact exists if the record, viewed in light most favorable to the plaintiff, presents a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker.” (quoting Smith, 644 F. 3d at 1328)). The motion is granted as to this ground. Mitigation Defendant finally argues that even if Plaintiff’s claims survive summary judgment, her demands for front pay and back pay must be limited because she failed to mitigate her damages by applying for new positions and voluntarily removing herself from the labor market. Specifically, Defendant asserts that although she initially sought employment following her departure, Plaintiff failed to apply for any employment positions from January 30, 2019, through August 19, 2020. Plaintiff applied for a number of jobs from May 18, 2018, until January 30, 2019. In her answers to Defendant’s interrogatories, Plaintiff indicated that beginning in December 2018, she began her own business marketing crochet items that she made. While Defendant’s argument appears persuasive, the determination of whether Plaintiff’s efforts constitute a failure to mitigate cannot be determined on the record before the Court. After all, substantial case law reflects that a plaintiff’s “decision to become self-employed may constitute reasonable diligence for purposes of the back pay determination.” See E.E.O.C. v. Joe’s Stone Crab, Inc., 15 F. Supp. 2d 1364, 1378 (S.D. Fla. 1998) (collecting cases). The question of whether

Plaintiff’s decision to engage in a crochet business constitutes reasonable diligence is a question of fact for a jury. The motion is due to be denied as to this ground. Accordingly, it is ORDERED, ADJUDGED, and DECREED: (1) “Defendant’s Motion for Summary Judgment and Incorporated Memorandum of Law” (Doc. 38) is hereby GRANTED IN PART and

DENIED IN PART.

(2) The motion is GRANTED to the extent that Defendant is entitled to summary judgment on Plaintiff’s gender discrimination claim in Count III to the extent that Count III asserts any claim not related to Plaintiff’s pregnancy or pregnancy-related condition. (3) The motion is otherwise DENIED. (4) The Court will enter a final judgment once all claims have been resolved. DONE and ORDERED in Chambers in Tampa, Florida, this 10th day of February, 2021.

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TOM BARBER

UNITED STATES DISTRICT JUDGE