Gonzales v. Pasco Cnty. Bd. of Cnty. Comm'rs, Case No. 8:11-cv-1397-T-30TGW
| Decision Date | 17 January 2013 |
| Docket Number | Case No. 8:11-cv-1397-T-30TGW |
| Parties | JERRY GONZALES, Plaintiff, v. PASCO COUNTY BOARD OF COUNTY COMMISSIONERS, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
THIS CAUSE comes before the Court upon Defendant's Motion for Summary Judgment (Dkt. 21), Plaintiff's Response to Defendant's Motion for Summary Judgment (Dkt. 28), Plaintiff's Motion to Amend the Complaint to Conform to the Evidence (Dkt. 34), Defendant's Response in Opposition to Plaintiff's Motion to Amend the Complaint to Conform to the Evidence (Dkt. 36), and Defendant's Unopposed Motion to Extend Pre-Trial Statement Deadline (Dkt. 37). The Court, having reviewed the motions, responses, record evidence, and being otherwise advised in the premises, concludes the motion for summary judgment should be granted, the motion to amend the complaint should be denied, and the motion to extend the pretrial statement should be denied as moot.
Plaintiff Jerry Gonzales ("Gonzales") initiated this action by filing a four-count complaint against Defendant Pasco County Board of County Commissioners ("Pasco County"). In Count I, Gonzales alleges Pasco County violated his rights under the Family Medical Leave Act ("FMLA") by retaliating against him for attempting to exercise his FMLA rights. In Count II, Gonzales alleges Pasco County violated Florida Statute § 440.205 by discharging him in retaliation for exercising his workers' compensation rights. Gonzales withdraws his racial discrimination claims in Counts III and IV in his response to Pasco County's motion for summary judgment.
Pasco County employed Gonzales as a grounds keeper and crew leader from 1993 until December 27, 2010. While working at Sam Pasco Park in Zephyrhills, Gonzales injured himself while attempting to dismount from a tractor on July 28, 2010. He was taken to Florida Hospital where he was diagnosed with bulging discs in his lower back. He then timely completed and submitted his work related accident report and treated with workers' compensation doctors for several months.
On November 3, 2010, Dr. Delgao, Gonzales' treating workers' compensation doctor, deemed Gonzales at maximum medical improvement, finding that (Dkt. 22-1, Ex. 15). Dr. Delgado suggested that Gonzales seek treatment from his primary doctor for his continued complaints of lower back pain.
Around this same time, Pasco County transferred Gonzales to the west side of the county under Parks and Recreation Manager Martin Paventi. Gonzales called Paventi to advise that he had been released back to work from Dr. Delgado and to inform Paventi that he was still in pain. The record is disputed whether Paventi told Gonzales that he would be put on sick leave until further notice or whether Paventi would mark him down for sick leave only for the dates of November 3rd, 4th, and 5th. However, it is not disputed that Pasco County's policy was for the employee to keep his supervisor informed about absences, and Paventi testified that he told Gonzales to call every week with an update.
Gonzales sought treatment from his primary care physician, Dr. Finnerty. On November 5, 2010, she gave Gonzales work restrictions, including "no lifting, running, or walking, etc. limit driving to 10 miles," and noted that he was "basically limited to sedentary duties until cleared by Dr. Willey." (Dkt. 33-1, Ex. 3). Dr. Finnerty referred Gonzales to Dr. Willey for an orthopedic evaluation. Per Paventi's request, Gonzales faxed Dr. Finnerty's restrictions to Paventi's office. Paventi informed Gonzales that there was no position currently open that could accommodate these light duty work restrictions.
On November 9, 2010, Gonzales presented to Dr. Willey who imposed work restrictions of no driving over thirty minutes and referred him to a pain management specialist for injections. (Dkt. 33-1, Ex. 4). Gonzales faxed a copy of these examination notes to Kim Clawson, Paventi's secretary. The record is unclear what date Clawson actuallyconfirmed she received the faxes; however, it is not disputed that she received them no later than November 16, 2010.
Around November 11, 2010, Gonzales exercised his one-time change of doctors for his workers' compensation claim, and was scheduled for an appointment with Dr. Maniscalco for December 20, 2010. Between his initial workers' compensation release by Dr. Delgado on November 3, 2010, and his second workers' compensation release by Dr. Maniscalco on December 20, 2010, Gonzales was considered by Pasco County to be on medical leave, not on workers' compensation or FMLA leave.
On December 6, 2010, Dr. Weisman, a pain management specialist recommended by Dr. Willey, suggested Gonzales have injections in his back for pain but that he wait until after his workers' compensation appointment with Dr. Maniscalco.
Because Gonzales had not returned to work, Pasco County sent FMLA paperwork to Gonzales on December 7, 2010. The FMLA paperwork indicated that the deadline for returning the medical certification was December 23, 2010. Gonzales received the FMLA paperwork on December 9, 2010, and he attempted in the next several weeks to have one of his physicians complete the FMLA certification. Unfortunately, Gonzales never submitted any of the FMLA paperwork or medical certification to Pasco County.
Gonzales initially tried to have Dr. Finnerty fill out the FMLA forms, but she declined, informing him that his "treating physician" must fill out the medical certification. Gonzales next asked Dr. Willey to fill out the FMLA paperwork. On December 14, 2010, Donna from Dr. Willey's office called Gonzales to ask why Dr. Willey needed to fill out thecertification and she requested that someone from Pasco County's Risk Management contact Dr. Willey regarding the paperwork. It is undisputed that Gonzales called Risk Management on December 15, 2010, and requested Jane Calano to call Dr. Willey's office regarding the FMLA forms. However, as Calano testified in her deposition, the Department of Labor forbids an employer from speaking to an employee's physician regarding FMLA leave. As such, Calano did not return Gonzales' call or fulfill his request to call Dr. Willey.
On December 15, 2010, Donna again contacted Gonzales and instructed him to have Dr. Weisman fill out the FMLA paperwork because he was the physician administering treatment. Gonzales testified that Dr. Weisman declined to sign the FMLA forms until after Dr. Maniscalco's appointment because he believed injections might not be necessary. At this point, Gonzales attempted to reach Barbara DeSimone in Personnel; however, she was not available and did not return his call before his termination on December 27, 2010.
On December 20, 2010, Dr. Maniscalco saw Gonzales for his second workers' compensation evaluation. Like Dr. Delgado, Dr. Maniscalco found Gonzales had (Dkt. 22-1, Ex. 19). Gonzales testified that neither Dr. Maniscalco nor Pasco County informed him he was required to return to work following this second evaluation.
Gonzales did not return to work on December 21st, 22nd, or 23rd, nor did he contact Paventi to inform him he was out on sick leave. On December 27, 2010, the next businessday, Pasco County sent Gonzales a termination letter informing him that it considered him to have resigned his position in accordance with Section A5.10 of the Career Service Manual because of his three consecutive absences from workdays without approved leave. (Dkt. 22-1, Ex. 20).
Gonzales received the termination letter on December 30, 2010. There is no evidence that Dr. Weisman completed the FMLA certification or that Gonzales ever submitted any FMLA paperwork to Pasco County, either before or after December 27, 2010.
Gonzales filed the instant lawsuit against Pasco County on June 24, 2011. The Court entered a Scheduling Order setting the dates for completion of fact discovery and submission of dispositive motions before the pretrial conference set for February 5, 2013. Pasco County moved for summary judgment on November 19, 2012. Gonzales moved to amend the complaint to add a FMLA interference claim on December 17, 2012.
Motions for summary judgment should be granted only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The existence of some factual disputes between the litigants will not defeat an otherwise properly supported summary judgment motion; "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (emphasis in original). The substantive law applicable to the claimed causes of actionwill identify which facts are material. Id. Throughout this analysis, the court must examine the evidence in the light most favorable to the non-movant and draw all justifiable inferences in its favor. Id. at 255.
Once a party properly makes a summary judgment motion by demonstrating the absence of a genuine issue of material fact, whether or not accompanied by affidavits, the nonmoving party must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories and admissions on file, and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324. The evidence must be significantly probative to support the claims. Anderson, 477 U.S. at 248-49 (1986).
This Court...
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