Carper v. TWC Servs., Inc.

820 F.Supp.2d 1339

James CARPER, Plaintiff,

v.TWC SERVICES, INC., Defendant.

Case No. 11–60132–CIV.

United States District Court, S.D. Florida.

Oct. 7, 2011.

Randy Alan Fleischer, Randy A. Fleischer Law Offices, Davie, FL, for Plaintiff.

Christine D. Hanley, Christin Marie Russell, Christine D. Hanley & Associates, West Palm Beach, FL, for Defendant.

ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT

LURANA S. SNOW, United States Magistrate Judge.

THIS CAUSE is before the Court on Defendant, TWC Services, Inc.'s Motion for Summary Judgment (D.E. 27). Since the parties have consented to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of final judgment in this case, this Court has jurisdiction to decide the matter pursuant to 28 U.S.C. § 636(c). Having carefully reviewed the Motion, competing Statements of Fact, Plaintiff's Response in Opposition to the Motion, and Defendant's Reply, as well as the accompanying exhibits, deposition transcripts, and affidavits of the various witnesses in this matter, the Court finds final summary judgment in this case warranted.

I. BACKGROUND

Plaintiff, James Carper (“Carper”), commenced this action against his former employer, Defendant TWC Services, Inc. (“TWC”), on December 17, 2010, in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida alleging a single count of disability discrimination and failure to accommodate under the Florida Civil Rights Act, Fla. Stat. ch. 760 (“FCRA”). The case was removed to this Court on January 19, 2011 based on diversity of citizenship. Defendant moves for summary judgment on Plaintiff's disability discrimination claim on the ground that he is not disabled within the meaning of the FCRA and, thus, unable to satisfy his burden of establishing a prima facie case of discrimination under the Act.¹ Defendant moves for summary judgment on Plaintiff's failure to accommodate claim arguing that because Plaintiff is not disabled within the meaning of the Act, Defendant was under no obligation to offer accommodation, and that even if such an obligation existed, Plaintiff has failed to adduce sufficient evidence from which the trier of fact could conclude that Plaintiff requested an accommodation from Defendant that was denied.

II. FINDINGS OF FACT

The following facts are pertinent to the resolution of Defendant's Motion for Summary Judgment and are generally undisputed. Where a major fact is in dispute, such dispute is noted. Additionally, where there is any discrepancy in the record, the Court views the evidence in the light most favorable to the Plaintiff.

Defendant is a service provider for heating, ventilating and air conditioning (HVAC) systems in the Southeast United States. At the time in question, Plaintiff was employed by Defendant as a service manager in the Defendant's Ft. Lauderdale Branch from about April 2007 until his termination on December 8, 2008. At all times in question, Plaintiff reported to Debra Held (“Held”), the branch manager at that location and Plaintiff's supervisor. As a service manager, Plaintiff's duties included supervising and dispatching technicians, preparing proposals, ordering parts, conducting performance reviews of technicians and interviewing new technicians, and offering customer support. Plaintiff contends and for purposes of the instant Motion for Summary Judgment this Court assumes that although Plaintiff was hired to perform the above job duties, because of Held's “micro-manager-type” supervising style he did not actually get the opportunity to perform all of the duties assigned him.

The record establishes that at least until April 2008, Plaintiff performed his job satisfactorily. A May 2008, job assessment of Plaintiff's performance shows that Plaintiff met or exceeded requirements in all but one of the twenty-eight individual assessment areas (below requirements rating only in the area of “communications”) and that he was making progress towards all of his goals.² Defendant contends that Plaintiff's job performance began to deteriorate during the last eight (8) months of his employment beginning in or around April/May 2008. To support this claim Defendant attaches numerous e-mails authored by Held and generated during the time period in question referring to what Defendant alleges to be complaints regarding Plaintiff's job performance. Plaintiff does not dispute the authenticity of the e-mail evidence, but disagrees with the negative connotation Defendant has attached to them. Plaintiff asserts that the subject e-mails are mostly routine, and that the vast majority of them were sent after May 2008, when Held first was informed of Carper's heart condition.

The e-mail evidence speaks for itself and while a portion of the e-mails may refer to routine matters, the vast majority of them are critical of Plaintiff's job performance.³

Held testified at deposition that sometime in 2008 Plaintiff's job performance started to decline and the incidence of e-mails critical of Plaintiff's performance increased. According to Held, rather than improving, Plaintiff's performance grew worse, resulting in an October 14, 2008 meeting between Held and Plaintiff. The record is undisputed that at that meeting, Held relayed her concerns over certain perceived deficiencies in Plaintiff's job performance and presented Plaintiff with a list of specific items that she wanted him to address in a plan of action.⁴

The record contains an October 14, 2008 e-mail communication from Held to her supervisors purporting to be a follow-up to the meeting with Plaintiff in which she refers to the meeting, and attaches a “list of action items I wanted [Plaintiff] to formally address in writing to me with his POA [plan of action] on how he was going to improve/correct.” Id.⁵

It is unclear when Held first learned of Plaintiff's heart condition and his alleged need for accommodation. Plaintiff alleges that he first told Held about his heart condition in May of 2008, and at about that same time, informed her about the need to accommodate his condition, which prevented him from climbing ladders and from being outside in the heat. Held testified that she was not certain when Plaintiff first notified her of his heart-related health issues, but does recall Plaintiff telling her of his need for surgery approximately one month before the surgery took place in November 2008. As for the requested accommodation, Held admits that Plaintiff requested, and she agreed to accommodate Plaintiff's heart condition by allowing him to refrain from climbing ladders and from being outside in the heat, but she does not indicate the date of this request.

For purposes of the instant motion, the Court assumes, consistent with Plaintiff's allegations and testimony, that during the relevant time period Plaintiff's heart condition resulted in shortness of breath, dizziness and fatigue, preventing Plaintiff from walking long distances, spending long periods of time in the heat, or climbing a ladder; that these limitations were made known to Defendant in May 2008; and that upon such disclosure, Defendant accommodated Plaintiff by allowing Plaintiff to avoid these limiting activities.⁶ The Court also assumes that despite his shortness of breath and resulting limitations, Plaintiff was able to perform the essential functions of his job, with the accommodations which Plaintiff admits Defendant provided.⁷

It is undisputed that Plaintiff's heart surgery took place on November 20, 2008 and that Plaintiff was absent from work for approximately two and one-half weeks during the surgery and recuperation. According to Held's testimony, while Plaintiff was on medical leave, she was forced to perform some of Plaintiff's duties and for the first time comprehended the full extent of Plaintiff's sub-standard performance.⁸ Held testified, and a memo from Held to Regional Manager Wayne McDaniel confirms, that Held had made the decision to terminate Plaintiff by at least November 29, 2008, while Plaintiff was still on medical leave recovering from his surgery.⁹ In a supplementary response to Plaintiff's Interrogatory No. 3, Defendant stated Plaintiff's termination was first considered on October 13, 2008.

Plaintiff returned from medical leave on December 8, 2008. At or around that time Plaintiff provided Defendant with a doctor's note which released him to full duty work with no restrictions. Held terminated Plaintiff on the morning of December 8, 2008, the day he returned to work. According to Held, upon being told of his termination, Plaintiff asserted that Defendant “could not fire him because he had just returned from medical leave, and claimed he could “sit [there] and do nothing” and she could not “touch” him.¹⁰ Plaintiff denies ever having made these statements. He contends the comments attributed to him are “outright falsifications,” and points out that these alleged statements were not documented in Held's report of Plaintiffs termination, which she prepared that same day.¹¹ For purposes of the instant motion, the Court credits Plaintiff's version of this event and will disregard Held's characterization of Plaintiff's reaction to his termination.

While Plaintiff was in the hospital and later when he was at home following his surgery, Held forwarded Plaintiff proposals and other work for him to review. She also left Plaintiff numerous telephone and e-mail messages requesting advice and information on work-related matters, some of which went unanswered. Held testified that it was Plaintiff who asked Held to forward him proposals to work on during his recovery, but Plaintiff denies this and his testimony is corroborated by the testimony of at least one colleague, H. Petit, who testified that it was Held and not Plaintiff who suggested Plaintiff work during his recovery.¹² Once again, for purposes of the instant motion, the Court assumes that it was Held who...