SMITH
v.
CITY OF GAINESVILLE
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The court granted summary judgment for the City, finding the plaintiff failed to present evidence of an ADA-qualifying disability or a reasonable belief of having one for retaliation claims.
A bus driver sued the City for disability discrimination, harassment, and retaliation under the ADA after refusing to wear a mask during the COVID-19 …
The full statement of facts, procedural history, and disposition for this case are member content.
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Brandon Ricardo Smith was a Gainesville bus driver. During the COVID pandemic, the City required bus drivers to wear masks. Smith refused at one point, and he later asserted that he had a disability that kept him from wearing one. He later resigned and sued the City. Smith’s operative complaint alleges three counts: Count I claims “ADA – Disability Discrimination, Failure to Accommodate”; Count II claims “ADA – Harassment and Hostile Work Environment”1; and Count III claims “ADA – Retaliation.” ECF No. 10.
First, I will address the motion to strike. The magistrate judge denied this nondispositive motion, consistent with his authority to decide such pretrial motions. See 28 U.S.C. § 636(b)(1). Smith’s burden at this point, then, is to show the order was “clearly erroneous or [] contrary to law.” Fed. R. Civ. P. 72(a); see also 28 U.S.C. § 636(b)(1)(A). He has not done that. His argument that the City had to disclose its summary-judgment affidavits during discovery is plainly wrong, and his claim that counsel’s affidavit should be excluded under Rule 37 is wrong too. The attorney’s affidavit simply recounted procedural aspects of this case and, in any event, makes no difference to the summary-judgment issues now before the court. See ECF No. 43-6. The magistrate judge did not clearly err in denying Smith’s motion to strike.2
I now turn to the summary-judgment motions. Smith has presented no evidence from which a jury could conclude he has a disability for ADA purposes. The best Smith offers—through documents he says the court should consider—is that years ago as a middle-or high-school student, he had an Individual Educational Plan finding him “emotionally handicapped.” ECF No. 39 at 66-71. Even if I were to accept that unauthenticated exhibit, it would leave Smith well short of satisfying his burden.
Smith’s failure to show any ADA disability, though, does not defeat his retaliation claims. Even without a disability, a plaintiff can have a retaliation claim if he has a protected activity, which requires only a reasonable belief that there was a violation (including, as applied here, a reasonable belief that he had a disability). Cf. Little v. United Technologies, 103 F. 3d 956, 960 (11th Cir. 1997) (outlining the requirement of an “objectively reasonable belief” for the protected activity). But Smith has not provided evidence from which a jury could conclude he had such a belief. So his retaliation claims fail too.
This makes Smith’s complaints about the Facebook post immaterial. A bus passenger complained on Facebook that a bus driver (Smith) was not wearing a mask. Smith contends this is hearsay and that the City never mentioned the Facebook post to him. The post is not hearsay because it is not used to prove that Smith did not wear a mask at all times; all parties agree that he did not. It was simply background as to how it came to be that Smith and his supervisor had the dustup on the bus. With or without the Facebook exhibit—and whether or not the City ever told Smith about it—the result would be the same. Smith also suggests that the City had no business enforcing its mask policy under Florida law. ECF No. 50 at 12-13. But this has no bearing on the summary-judgment issues set out above. Smith further argues that his unauthenticated exhibits were self-authenticating under the Federal Rules of Evidence. He is wrong on this point, but it makes no difference. With or without his exhibits, no reasonable jury could side with Smith.
It is now ORDERED: 1. The Report and Recommendation (ECF No. 49) is adopted and incorporated into this order (except as to n.4). 2. Smith’s motion for summary judgment (ECF No. 26) is DENIED. The City’s motion for summary judgment (ECF No. 35) is GRANTED.
3. Smith’s objections (ECF No. 50) are OVERRULED. 4. The clerk will enter a judgment that says, “This case was resolved on summary judgment. Plaintiff’s claims are dismissed on the merits, and Plaintiff shall take nothing from Defendant.”
5. The clerk will then close the file.
SO ORDERED on October 18, 2022. s/ Allen Winsor United States District Judge