Theodore Salem v. City of Port St. Lucie

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 8, 2019
• Docket: 18-14923
• Status: Unpublished

Opinion

Case: 18-14923 Date Filed: 10/08/2019 Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-14923 Non-Argument Calendar ________________________

D.C. Docket No. 2:17-cv-14431-RLR

THEODORE SALEM,

Plaintiff-Appellant,

versus

CITY OF PORT ST. LUCIE,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(October 8, 2019)

Before WILSON, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM: Case: 18-14923 Date Filed: 10/08/2019 Page: 2 of 11

Theodore Salem, a former police officer, appeals following the district

court’s grant of summary judgment in favor of his former employer, the City of

Port Saint Lucie (City), on his claims of Americans with Disabilities Act (ADA)

discrimination, Family and Medical Leave Act (FMLA) interference and

retaliation, and breach of contract under Florida law. 1 Salem contends the district

court erred by granting the City’s motion for summary judgment as to all of his

claims because: (1) he established he was a qualified individual for purposes of the

ADA and he was unable to maintain his mandatory certification only because the

City failed to accommodate his disability; (2) the City interfered with his FMLA

leave when it ordered him to report to a meeting—at which he was terminated—

while he was on leave; (3) he established a causal connection between his FMLA

leave and his termination for purposes of his claim of FMLA retaliation; and

(4) the City breached the collective bargaining agreement (CBA) when it extended

his probationary period by 180 days, instead of the permitted 90 days, and did not

designate his termination as a medical termination. We address each issue in turn,

and after review,2 affirm the district court.

1 The district court also granted a motion to dismiss on Salem’s claim of intentional infliction of emotional distress. Although Salem challenges the dismissal of his intentional infliction of emotional distress claim on appeal, he does not offer any substantive arguments— only a conclusory and vague reference—in support of the challenges and has, therefore, abandoned the issue. See Denney v. City of Albany, 247 F.3d 1172, 1182 (11th Cir. 2001). 2 We review a district court’s grant of summary judgment de novo. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007). Summary judgment is appropriate “if the 2 Case: 18-14923 Date Filed: 10/08/2019 Page: 3 of 11

I. DISCUSSION

A. ADA

The ADA prohibits discrimination against a qualified individual on the basis

of disability. 42 U.S.C. § 12112(a). The ADA also imposes upon employers an

affirmative duty to provide reasonable accommodations for known disabilities,

unless doing so would result in undue hardship on the operation of the business.

42 U.S.C. § 12112(b)(5)(A).

“To establish a prima facie case of discrimination under the ADA, a plaintiff

must show: (1) he is disabled; (2) he is a qualified individual; and (3) he was

subjected to unlawful discrimination because of his disability.” Holly v. Clairson

Indus., L.L.C., 492 F.3d 1247, 1255-56 (11th Cir. 2007). To show he is a qualified

individual, a plaintiff must show he can perform the essential functions of the

employment position he holds with or without reasonable accommodations. Id. at

1256. An accommodation is reasonable and necessary under the ADA only if it

will enable the employee to perform the essential functions of the job. Id.

“[E]ssential functions are the fundamental job duties of a position that an

individual with a disability is actually required to perform.” Id. at 1257 (quotation

movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In determining whether the movant has met this burden, we view the evidence and all factual inferences in the light most favorable to the non-moving party. Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1311 (11th Cir. 2001).

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omitted). “[C]onsideration shall be given to the employer's judgment as to what

functions of a job are essential, and if an employer has prepared a written

description before advertising or interviewing applicants for the job, this

description shall be considered evidence of the essential functions of the job.” Id.

(quotation omitted). The employee has the burden of identifying a reasonable

accommodation that would allow him to perform the essential functions of his job.

Earl v. Mervyns, Inc., 207 F.3d 1361, 1367 (11th Cir. 2000).

The Florida Statutes provide the minimum qualifications for a law

enforcement officer to be, and remain, employed. See Fla. Stat. §§ 943.13,

943.135 (2016). Once an officer has met the minimum qualifications—including

Florida Department of Law Enforcement (FDLE) certification—for employment,

the officer must comply with “periodic commission-approved continuing training

or education.” Fla. Stat. § 943.135(1). Moreover, “[t]he certification of an officer

who fails to comply with s. 943.135(1) shall be inactive, and the officer may not be

employed or appointed as an officer until he or she complies with the provisions of

§ 943.135(1).” Fla. Stat. § 943.1395(4) (emphasis added).

The district court did not err in granting the City’s motion for summary

judgment as to Salem’s ADA discrimination claim because he failed to show he

was a qualified individual by demonstrating he could perform essential functions

of his position. See Holly, 492 F.3d at 1256. The following facts are undisputed:

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(1) maintaining an updated FDLE certification—specifically, undergoing use of

force retraining—was an essential function of a City police officer; (2) an officer

who failed to maintain an active FDLE certification could not be employed as an

officer by the City; (3) Salem’s physician did not give him the medical clearance to

complete his use of force retraining; and (4) consequently, Salem’s FDLE

certification became inactive. Thus, the record reflects Salem was unable to

complete an essential function of his position and was not a qualified individual for

purposes of the ADA.

Moreover, although Salem argues he could have maintained his FDLE

certification with accommodations from the City, he failed to meet his burden of

identifying a reasonable accommodation that would have allowed him to do so

because the undisputed evidence reflects a waiver or exemption from training was

only available for firearms training, not use of force training. See Earl, 207 F.3d at

1367. Additionally, he only conclusorily alleges he made requests to the City for

reasonable accommodations without any accompanying specific supporting facts.

See Jefferson v. Sewon America, Inc., 891 F.3d 911, 924-25 (11th Cir. 2018)

(“[T]his Court has consistently held that conclusory allegations without specific

supporting facts have no probative value” at summary judgment.). Thus, the

district court did not err in granting summary judgment to the City on Salem’s

ADA discrimination claim, and we affirm on this issue.

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B. FMLA Interference

FMLA’s interference provision makes it “unlawful for any employer to

interfere with, restrain, or deny the exercise of or the attempt to exercise,” any

substantive FMLA right. 29 U.S.C. § 2615(a)(1). To establish a prima facie case

of FMLA interference, a plaintiff must show by a preponderance of the evidence

his employer denied him a benefit to which he was entitled. Krutzig v. Pulte Home

Corp., 602 F.3d 1231, 1235 (11th Cir. 2010). In dealing with an interference

claim, “the employer's motives are irrelevant.” Id. (quotation omitted).

The district court did not err in determining Salem failed to establish the

City interfered with a benefit to which he was entitled under the FMLA. The

FMLA provides eligible employees are entitled to “12 workweeks of leave during

any 12-month period . . . [b]ecause of the birth of a son or daughter of the

employee and in order to care for such son or daughter.” 29 U.S.C.

§ 2612(a)(1)(A). It is undisputed Salem was granted his request for FMLA leave.

Moreover, nothing in the FMLA indicates it ensures 12 workweeks of undisturbed

leave. To the contrary, regulations expressly allow an employer to contact an

employee while he is on FMLA leave to discuss the employee’s status. See 29

C.F.R. § 825.311(a). The City did just that when it called Salem and asked to meet

with him to discuss his employment status—i.e. his termination. Accordingly, we

affirm on that basis. See Big Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528

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F.3d 839, 844 (11th Cir. 2008) (explaining we can affirm on any ground supported

in the record).

C. FMLA Retaliation

To establish a claim of FMLA retaliation, an employee must demonstrate his

employer intentionally discriminated against him for exercising a right guaranteed

under the FMLA. Martin v. Brevard Cty. Pub. Sch., 543 F.3d 1261, 1267 (11th

Cir. 2008). “Unlike an interference claim, an employee bringing a retaliation claim

faces the increased burden of showing that his employer’s actions were motivated

by an impermissible retaliatory or discriminatory animus.” Id. at 1267-68

(quotation omitted). Absent direct evidence of retaliatory intent, we apply the

burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). Martin, 543 F.3d at 1268. To establish a prima facie case of

FMLA retaliation, an employee may show “(1) he engaged in statutorily protected

activity, (2) he suffered an adverse employment decision, and (3) the decision was

causally related to the protected activity.” Id.

Close temporal proximity between an employee’s protected conduct and the

adverse action is generally sufficient to create a genuine issue as to whether there

is a causal connection. Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d

1286, 1298 (11th Cir. 2006). However, “in a retaliation case, when an employer

contemplates an adverse employment action before an employee engages in

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protected activity, temporal proximity between the protected activity and the

subsequent adverse employment action does not suffice to show causation.”

Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006).

If the employee successfully demonstrates a prima facie case of FMLA

retaliation, the burden then shifts to the employer to articulate a legitimate reason

for the adverse action. See McDonnell Douglas, 411 U.S. at 802. Once an

employer articulates a legitimate non-discriminatory reason, the employee then

must show the employer’s proffered reason was pretextual. See id. at 804. Pretext

is only proven if it is shown both that the reason was false, and that discrimination

or retaliation was the real reason behind the challenged action. St. Mary’s Honor

Ctr. v. Hicks, 509 U.S. 502, 515 (1993).

The district court did not err in concluding Salem failed to establish a prima

facie case of FMLA retaliation because he did not establish a causal connection

between his FMLA leave and his termination. See Martin, 543 F.3d at 1268. The

fact Salem was terminated while on FMLA leave, alone, was insufficient to create

a genuine issue as to whether there was a causal connection because the City

contemplated his termination before he engaged in a statutorily protected activity.

See Drago, 453 F.3d at 1308. Specifically, on March 28, 2016, the City informed

Salem he was required to complete mandatory retraining in order to maintain an

active FDLE certification. It is undisputed an officer who does not maintain an

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active FDLE certification cannot continue to be employed by the City. See Fla.

Stat. § 943.1395(4). Thus, by informing Salem he was required to complete

mandatory retraining for his FDLE certification, the City contemplated the

termination of his employment absent his compliance with the retraining

requirement. Accordingly, the City contemplated Salem’s termination before he

requested his FMLA leave in June 2016, and, consequently, the temporal

proximity between his termination and his FMLA leave, alone, did not establish

the causal requirement of a prima facie case of FMLA retaliation. See Drago, 453

F.3d at 1308.

Moreover, even if he had established a prima facie case of FMLA

retaliation, Salem failed to present any substantive evidence to show the City’s

legitimate reason for firing him—that he had failed to comply with the certification

requirements of his position—was pretextual. Even assuming Police Chief John

Bolduc stated he was “taking heat from the city [because Salem] was being paid a

sworn officer’s salary while on light duty” and that, consequently, the City’s

reason for firing Salem was false, Salem has not presented any evidence that

retaliation for his FMLA leave was the real reason behind his termination. See St.

Mary’s Honor Ctr., 509 U.S. at 515. Accordingly, we affirm on this issue.

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D. Breach of Contract

Under Florida law, a breach of contract claim “requires the plaintiff to plead

and establish: (1) the existence of a contract; (2) a material breach of that contract;

and (3) damages resulting from the breach.” Vega v. T-Mobile USA, Inc., 564 F.3d

1256, 1272 (11th Cir. 2009). To prove the existence of a valid contract, a plaintiff

must plead facts showing the following: “(1) offer; (2) acceptance;

(3) consideration; and (4) sufficient specification of the essential terms.” Id.

The district court did not err in granting the City’s motion for summary

judgment as to Salem’s breach of contract claim for two reasons. First, as to his

claim the City breached the CBA by extending his probationary period by 180

days, and assuming without deciding he established the first three elements of a

breach of contract, Salem failed to demonstrate he suffered any damages from the

City’s breach of the CBA. Salem’s probationary period was set to end on June 5,

2016. Under the terms of the CBA, the City could have extended Salem’s

probationary period by up to 90 days. The City terminated Salem on July 5,

2016—only 30 days into his extended probationary period. Thus, the damages he

alleges were necessarily caused by his termination, not the extension of his

probationary period.

Second, as to his claim the City committed a breach of contract by failing to

designate his termination as a medical termination, Salem failed to provide any

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evidence the City was required by contract to do so. Thus, we affirm on the breach

of contract issues.

II. CONCLUSION

The district court did not err in granting summary judgment to the City on

Salem’s ADA, FMLA interference and retaliation, and breach of contract claims.

Thus, we affirm.

AFFIRMED.