Gomez-Hernandez v. CFS Roofing Servs.

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HECTOR GOMEZ-HERNANDEZ, Plaintiff, v. CFS ROOFING SERVICES, LLC, Defendant.

No. 2:21-cv-00610-JLB-KCD

United States District Court, M.D. Florida, Fort Myers Division

May 12, 2023

ORDER

JOHN L. BADALAMENTI, UNITED STATES DISTRICT JUDGE.

Hector Gomez-Hernandez (“Plaintiff”) filed suit against his former employer, CFS Roofing Services, LLC (“Defendant”). Before the Court is Defendant's Motion for Summary Judgment (Doc. 38) (the “Motion”). Plaintiff responded to the Motion (Doc. 42) and Defendant filed a reply in further support of the Motion (Doc. 46). After careful review of the summary judgment record, the Motion is GRANTED in part and DENIED in part.

BACKGROUND

Plaintiff began working for Defendant in or around April 2019, as the Director for Human Resources. (Doc. 1 at ¶ 19; Doc. 8 at ¶ 19). Plaintiff states that he suffers from several military service-connected disabilities including tinnitus sleep apnea, general anxiety disorder, major depression, and adult ADD/ADHD. (Doc. 43-5 at 12-13). Plaintiff joined the Navy as an entry level recruit in 1996. (Doc. 43-5 at 25). Then, from 2000 to 2006, he was a recruiter with the Navy eventually becoming a recruiter in charge of the Fort Myers Navy Recruiting Office. (Doc. 43-5 at 27). Then, the Navy transferred him to Atlanta, where he “was in charge of five different recruiting offices in the Metro Atlanta area” from 2006 to 2010. (Doc. 43-5 at 28). Following that, from 2010 to 2013, he served as the regional director of recruiting for the U.S. Navy and from 2013 to 2015, he was a Navy HR business partner doing training workforce development. (Doc. 43-5 at 29). Plaintiff was then a senior director at a Navy Reserve Center until April 2016, and his last day on active duty was July 1, 2016. (Doc. 43-5 at 30). An affidavit signed by Plaintiff states that his military service-connected mental health disabilities substantially impair the major life functions of learning, thinking interacting with others, sleeping, and speaking. (Doc. 43-2 at 3). Plaintiff claims that during his interview, he did not mention his service-connected disabilities, but he and Mr Crowther discussed his military service during the interview. (Doc. 43-5 at 22-23).

Plaintiff states that he was seeing a doctor once a week, or at minimum twice a month, for general anxiety, which he maintains is service connected. (Doc. 43-5 at 48). Plaintiff explains that he scheduled his medical appointments either first thing in the morning or late in the afternoon, so that he could still go into work. (Doc. 435 at 48). Plaintiff alleges that he made his supervisor, David Crowther, aware of his doctors' appointments via email and by sharing his calendar with him, and at least on one occasion, he reminded Mr. Crowther about an appointment verbally in person. (Doc. 43-5 at 55-56). When he reminded Mr. Crowther about one specific doctor's appointment, Plaintiff alleges that Mr. Crowther stated, “Yeah, no problem.” (Doc. 43-5 at 56).

Although Plaintiff admits that Defendant only offered five days of paid vacation when he was hired, he claims that Mr. Crowther verbally “ensured [him] not to worry about that” and stated that if Plaintiff “ever needed more than five days, . . . all [he] had to do was talk to [Mr. Crowther].” (Doc. 43-5 at 39-40).

Plaintiff states that on or about November 8, 2019, Mr. Crowther questioned him about his “many doctor[‘s] appointments.” (Doc. 43-5 at 66). Specifically, Plaintiff claims that Mr. Crowther asked Plaintiff “Are you okay? You have a lot of doctors' appointments. You're not dying, are you?” (Doc. 43-5 at 67). And when Plaintiff explained that he was seeing a mental health professional, he asserts that Mr. Crowther responded, “Woah, you're not going to come shoot up the place, are you? . . . Well, if you do, just don't shoot me.” (Doc. 43-5 at 67-68). Mr. Crowther denies that this conversation took place. (Doc. 38-9 at 5). Further, completely contradicting Plaintiff's testimony regarding this event, Mr. Crowther maintains that he “was never aware of [Plaintiff's repeated] doctor's appointments” and that “[it] was not until after Plaintiff's termination that [he] was made aware of any of [Plaintiff's] service-connected disabilities, or any disability, at all.” (Doc. 38-9 at 4). Moreover, Mr. Crowther states that he checked in with Plaintiff's assistant, Ashley Buller, and others that worked around Plaintiff, but “[n]obody knew where he was at.” (Doc. 43-4 at 56). But Ms. Buller states that when Mr. Crowther came to the office looking for Plaintiff, she let him know when Plaintiff was at a doctor's appointment. (Doc. 43-3 at 29-30).

Plaintiff states that he was terminated at the end of November 2019. (Doc. 43-5 at 15).^[1] Plaintiff testified that “[p]rior to the incident with Mr. Crowther, [he] routinely was praised . . . to the point that [they] were making plans for the move to their new location.... At no point in time was there any indication that . . . [he] was a poor performer or that [he] was in jeopardy of losing [his] job. On the contrary. Any conversation that [he] had with Mr. Crowther was positive reinforc[ement] . . . of [him] doing a good job.” (Doc. 43-5 at 65-66). Plaintiff has no documentation of these positive reviews. (Doc. 43-5 at 66). Mr. Crowther brings up two occasions whether Plaintiff's work was considered “subpar” and alleges that he spoke face-to-face with Plaintiff about his absences but could provide no documentation or other evidence to support such conversations. (Doc. 43-4 at 5659).

Mr. Crowther maintains that “Plaintiff was terminated due to his . . . [f]ailure to work 45-50 hours a week, as agreed upon; and . . . [his] [f]ailure to request Paid Time Off and/or Unpaid Time Off for his repeated absences from work.” (Doc. 38-9 at 4). Mr. Crowther asserts that “Plaintiff was not terminated for any reason associated with his military service or for having any sort of disability.” (Doc. 38-9 at 4). But Mr. Crowther confirms that there is no written documentation explaining why Plaintiff was terminated and, when asked about evidence supporting his having conversations with Plaintiff about his performance, stated: “The only evidence that I have would be his coworkers noticed he was never around.” (Doc. 43-4 at 57). Indeed, three of Plaintiff's former coworkers filed affidavits with the following sworn statements: (1) “Between 2 and 4 days a week Hector Gomez left in midafternoon .... I know these facts because I shared the same office trailer with him” (Doc. 38-10); (2) “Hector Gomez often left early . . . or came in late .... He was Out of the office at least 3+ days a week .... [I]t had become an office joke how he was never around when someone was looking for him” (Doc. 38-11); and (3) “I can attest that Hector Gomez was not in his office, the job trailer or anywhere else on campus a minimum of (3) days a week or more. . . [I]t did upset me because I needed the hiring of new employees, and everyone else was working full work weeks.” (Doc. 38-12).

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when the movant can show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A district court must grant a motion for summary judgment only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Essex Ins. Co. v. Barrett Moving & Storage, Inc., 885 F.3d 1292, 1299 (11th Cir. 2018). An issue is “genuine” if a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the nonmoving party in light of his burden of proof. Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014). And a fact is “material” if, “under the applicable substantive law, it might affect the outcome of the case.” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004). “[M]atters of credibility are for a jury to settle at trial, not a trial court on summary judgment.” Ilias v. USAA Gen. Indem. Co., 61 F.4th 1338, 1350 (11th Cir. 2023); Prieto v. Collier Cnty., No. 2:13-cv-489-FtM-38CM, 2014 WL 4784330, at *6 (M.D. Fla. Sept. 24, 2014) (“[O]nly a jury can make the necessary credibility determinations to settle [a] ‘he said, she said' dispute.”); see also Wooten v. Fed. Exp. Corp., 325 Fed.Appx. 297, 303 (5th Cir. 2009) (“The difficulty of evaluating discrimination claims at the summary judgment stage is well known and derives from obvious sources, namely the importance of ‘he said / she said' credibility determinations.”). In ruling on a motion for summary judgment, the Eleventh Circuit has directed that courts “resolve all ambiguities and draw reasonable factual inferences from the evidence in the non-movant's favor.” Travelers Prop. Cas. Co. of Am. v. Moore, 763 F.3d 1265, 1268 (11th Cir. 2014); see also DA Realty Holdings, LLC v. Tenn. Land Consultants, LLC, 631 Fed.Appx. 817, 820 (11th Cir. 2015) (“[W]here the material facts are undisputed and do not support a reasonable inference in favor of the non-movant, summary judgment may be properly granted as a matter of law.”).

DISCUSSION

I. Count I - USERRA

Count I of the Complaint asserts a claim for violation of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). (Doc. 1 at ¶¶ 36-46). “To establish a prima facie case of discrimination under the USERRA, the plaintiff must demonstrate by a preponderance of the evidence that his military membership or service was a motivating factor in the employer's decision.” Ward v. United Parcel Serv., 580 Fed.Appx. 735, 738 (11th Cir. 2014) ...