Dulaney v. Miami–dade County

785 F.Supp.2d 1343

43 NDLR P 100

Walter DULANEY, Plaintiff,

v.MIAMI–DADE COUNTY and International Association of Firefighters, Local 1403, Defendants.

Case No. 09–23259–CIV.

United States District Court, S.D. Florida.

May 5, 2011.

Jennifer E. Daley, Karen Coolman Amlong, Rani Nair Bolen, William Robert Amlong, Amlong & Amlong, Fort Lauderdale, FL, for Plaintiff.Michael Brian Nadler, Miami, FL, Mark William Floyd, Shellie Lynne Sewell, Mierzwa & Associates, P.A., Lake Worth, FL, for Defendants.

ORDER GRANTING DEFENDANT MIAMI–DADE COUNTY'S MOTION FOR SUMMARY JUDGMENT (D.E. 72) AND GRANTING LOCAL 1403'S MOTION FOR SUMMARY JUDGMENT (D.E. 74)

JOAN A. LENARD, District Judge.

THIS CAUSE is before the Court on Defendants' motions for summary judgment. On January 18, 2011, Defendant Miami–Dade County (the “County”) filed its Motion for Summary Judgment (“County's Motion,” D.E. 72). Plaintiff Walter Dulaney (“Dulaney”) filed his response in opposition (D.E. 87), on February 5, 2011, to which the County filed its reply (D.E. 99), on February 17, 2011.¹ On January 19, 2011, Defendant the International Association of Firefighters, Local 1403 (the “Union”), filed its Motion for Summary Judgment (“Union's Motion,” D.E. 74). Dulaney filed his response in opposition (D.E. 90), on February 7, 2011, to which the Union filed its reply (D.E. 98), on February 17, 2011.² Having considered the motions for summary judgment, related pleadings, and the record, the Court finds as follows.

I. Background ³

This case involves allegations by a former Miami–Dade firefighter that the County and the Union ⁴ discriminated against him based upon his perceived drug use. Dulaney contends the County failed to set up a required psychological evaluation for him and terminated him because they perceived him as being a drug user. Dulaney further contends the Union discriminated against him by discouraging the County from setting up a psychological evaluation and informing it that Dulaney was a drug addict. Defendants contend Dulaney was terminated for “job abandonment” and deny any perceived drug use.

On June 27, 2006, Dulaney noticed a rash had developed covering his arms and chest and sought treatment from the Wellness Center, a clinic operated by the Union providing medical and rehabilitation services to Miami–Dade Fire Rescue (“MDFR”) employees. At the Wellness Center, Dulaney was seen by Dr. Michele Grundstein (“Grundstein”). The rash was classified as work-related and Dulaney's treatment was covered by worker's compensation. On July 20, 2006, Grundstein authored a progress note indicating her opinion that the rash had “basically resolved” and he would be able to work his next assigned shift. ( See D.E. 72–1 at 3.) Nevertheless, the rash left noticeable scars and pock marks.

On August 20, 2006, Dulaney complained that he injured his wrist while on duty. Grundstein again treated Dulaney at the Wellness Center. On August 25, 2006, Grundstein authored another progress note indicating her opinion that Dulaney was cleared to return to full work duty with no restrictions. ( See D.E. 72–2 at 3.) Dulaney returned to work.

On September 1, 2006, Dulaney began to suffer from a fever and sore throat while on duty. ( See D.E. 72–3.) Dulaney's symptoms worsened over the next couple of days and on September 3, 2006, he went to Jupiter Hospital. ( See D.E. 72–4.) Dulaney was subsequently transported to St. Mary's Medical Center where he was diagnosed with a peritonsillary cellulitis/abcess. Physicians at St. Mary's prescribed medication for Dulaney and he was sent home. ( See D.E. 72–5, 72–6.) The hospital discharge instructions directed Dulaney to make a follow-up appointment with Dr. Curtis Emmer (“Emmer”). ( See D.E. 72–6.) The following day, Dulaney wrote a memorandum to Battalion Chief Todd Garofalo (“Garofalo”) explaining his medical condition and his opinion that he was unsure whether he would be able to work his next shift scheduled for September 7, 2006. ( See D.E. 72–3.)

On September 5, 2006, Dulaney consulted Emmer, an ear, nose, and throat (“ENT”) physician located near his home. ( See D.E. 72–7.) Emmer diagnosed Dulaney with a “right peritonsillar abcess,” drained the abcess, and prescribed several antibiotics and pain medications. ( See Emmer Dep., D.E. 72–13 at 9.) On September 6, 2006, Dulaney was seen by Dr. Dalisla Soto (“Soto”) at the Wellness Center. ( See D.E. 72–8, 72–9.) Soto prescribed pain medication for Dulaney and referred him to an outside ENT specialist. ( See D.E. 72–9.) She did not refer him to an infectious disease specialist although Dulaney contends either Soto or Grundstein informed him they would do so.

On September 18, 2006, Dulaney again saw Emmer. At that time, Emmer noted that Dulaney appeared to be “stable” and recommended that he undergo surgery to remove his tonsils in order to prevent recurring infection. ( See D.E. 72–13 at 9–10.) That surgery was scheduled for September 25, 2006. ( See D.E. 72–14.) Due to Dulaney needing pre-operative and post-operative care, Emmer gave Dulaney a Certification to Return to Work/School form indicating Dulaney would be able to return to work on October 11, 2006. ( See D.E. 72–15.) Dulaney decided to not have his tonsils removed and did not undergo any surgery.

On September 19, 2006, a worker's compensation claims adjuster sent a letter to Dulaney informing him that an appointment had been scheduled for him with an authorized worker's compensation ENT specialist, Dr. Stephen Guilder (“Guilder”), for September 28, 2006, in connection with his “on-the-job injury.” ( See D.E. 72–11 at 2.) Dulaney did not attend this appointment. ( See D.E. 72–12.) Dulaney claims he never received notice of it.

On September 22, 2006, an employee with Risk Management contacted Emmer's office. ( See D.E. 72–13 at 10.) Emmer testified that he returned the call on September 26, 2006. ( Id.) Emmer informed Risk Management that Dulaney's medical condition was personal and unrelated to any on-the-job injuries. In an October 4, 2006, e-mail, an MDFR occupational safety and health supervisor named Hillary Julien (“Julien”) expresses frustration with regard to her attempts to contact Dulaney and indicates she and another employee left voice messages for Dulaney regarding his appointment with Guilder.⁵ ( See D.E. 72–12.)

Dulaney subsequently did not return to work although he claims he was told he could not go back to work unless either Soto or Grundstein signed off on his return. ( See Pl. SOF at ¶¶ 14–15, 18; Pl. Dep., D.E. 72–17 at 69–70.) Under the County's personnel rules, an employee absent without authorization for three consecutive days is subject to dismissal for job abandonment. ( See D.E. 72–18.) The County's job abandonment policy requires the County to undertake efforts to contact an employee, including telephone calls and home visits if necessary, who has failed to report their absences. ( Id.) The policy further provides that following three unauthorized absences, the employee shall be notified via certified letter that unless the employee reports to work or provides a satisfactory reason for their absence, they will be considered as having abandoned their position. ( Id.)

In early October 2006, Dulaney's supervisor, Chief Christine Rogers (“Rogers”) was informed that Dulaney's medical condition was personal and that any subsequent absences would be counted as sick time. ( See D.E. 72–20; Rogers Dep., D.E. 72–21 at 11.) Rogers testified that she had several conversations with Garofalo regarding his frustration and inability to contact Dulaney. (Rogers Dep., D.E. 72–21 at 12.) It was at this point that Rogers also attempted to contact Dulaney and left several voice messages for him. ( Id.) Meanwhile, at the union hall, rumors spread regarding Dulaney's possible drug use. There is also evidence that Dulaney was undergoing some personal issues related to his recent divorce and home foreclosure. ( See Pena Dep., D.E. 72–22 at 11, 41; Pl. Dep., D.E. 72–17 at 58.)

On approximately October 3, 2006, two firefighters, a lieutenant named Mitch Perlstein (“Perlstein”) and another firefighter and occupational health specialist ⁶ named Orlando Pena (“Pena”), conducted an unannounced visit to Dulaney's home.⁷ ( See D.E. 72–12; Pena Dep., D.E. 72–22 at 9–10.) Pena testified that Perlstein was a mutual friend and had previously acted somewhat as a mentor for Dulaney. ( See Pena Dep., D.E. 72–22 at 8, 26.) The visit was in response to several rumors Pena had heard from firefighters present at the union hall to the effect that Dulaney was missing work because he was using drugs. (Pena Dep., D.E. 72–22 at 9–11; Perlstein Dep., D.E. 91–2 at 17–19.) Pena and Perlstein did not observe any indications of drug use and found Dulaney to be in good health upon their visit. Dulaney continued to not report to work. Rogers testified that she told Garofalo to maintain Dulaney on the payroll and attendance records as “sick” as a courtesy and in order to permit him to work through his personal problems. (Rogers Dep., D.E. 72–21 at 16–18.) Dulaney again visited the Wellness Center in December 2006 due to a peritonsillar abcess. (Grundstein Dep., D.E. 84–2 at 18.) Soto examined Dulaney and lanced the abcess. ( Id.)

As August 2007 approached, MDFR began to implement a new automated system for managing personnel payroll and attendance. This new system did not permit supervisors to carry employees on the payroll and attendance records, or “PARs,” who were not actually showing up for their shift on an operational unit. (Rogers Dep., D.E. 72–21 at 25.) Because of this change, Dulaney's continued absence was going to come to the “forefront” and Rogers was advised that either Dulaney needed to return to work or be processed for job abandonment. ( Id.) The County contends that Rogers contacted other battalion chiefs in an effort to contact Dulaney and advise him of what was going on and of the fact that he needed to...