ORDER
This matter comes before the Court upon the Defendant’s Motion for Summary Judgment (Doc. 41) to which Plaintiff has responded in opposition (Doc. 45), and the parties’ Joint Stipulation of Facts (Doc. 51). The Court, having considered the parties’ submissions and being fully advised in the premises, will now GRANT the Motion.
Plaintiff Lisa Caponed alleges that her former employer, Chipotle Mexican Grill, Inc., fired her based on her disability, in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq., and the Florida Civil Rights Act (“FCRA”), Fla. Stat. §§ 760.01, et seq., and in retaliation for her exercise of rights under Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601, et seq. The relevant facts follow.
Plaintiff has a long history of treatment for bipolar disorder. Doc. 41-1, Exh. A “PI. Dep.” at 36. Before she began taking medication to treat her condition, Plaintiff experienced “depression and mania.” Id. at 37-38. Plaintiff does not suffer from these “extreme highs and lows” when she is taking medication, but she continues to experience panic attacks. Id. at 36-38.
Plaintiff began working for Chipotle as a crew member on July 20,'2012. Doc. 51 at ¶¶ 1-2. Chipotle is a chain of “fast casual” restaurants that specializes in Mexican fare, and Plaintiff worked at Chipotle’s South Tampa location. Id.; Doc. 41-3 at ¶¶ 4-5. In April 2013, Plaintiff informed the manager at the South Tampa location, Jared Miesel, that she was taking medication for her bipolar disorder. PI. Dep. at 63-64. Plaintiff did not explain which medications she took, she did not detail any side effects, and she did not mention that the medications could cause something negative to happen at work. Id. at 65. Miesel’s reaction was “neutral,” and he did not ask any questions. Id.
According to Plaintiff, Miesel treated all employees in the same way, and he never reprimanded her. Id. at 70, 83. One of Plaintiffs coworkers testified that Plaintiff “was really good at her job and the customers seemed to like her.” Doc. 41-18 at 15. .By May 2013, Plaintiff' was being “watched carefully for . a promotion.” PI. Dep. at 150, 152. Although being monitored for á promotion was stressful, Plaintiff “was able to do it” without triggering panic attacks because she “was more excited than not.” Id. at 152.
On May 30, 2013, Plaintiff reported to Sandra Weeks, an advanced registered nurse practitioner who treated Plaintiffs bipolar disorder, that she was crying at work and having panic attacks, and that she had to be taken off shifts. Id. at 98-99; Doc. 41-16 at 1. Plaintiff testified that' she was having panic attacks every day, sometimes at work, but “[t]hey weren’t long!” PL Dep. at 99-100. When the attacks happened at work, she would have to calm -herself down by going into the storage room to “take a minute.” Id. at 100. She explained, “I can work through it, it’s just not fun.” Id.
Nurse Weeks discontinued one of Plaintiffs medications and started Plaintiff on Saphris, a new medication. Doc. 41-16 at 2. Nurse Weeks’ treatment notes from May 30, 2013, indicate that she recommended “FMLA [leave] until Mon. June 3.” Doc. 41-16 at 2. That same day, Nurse Weeks faxed a letter to Miesel requesting FMLA leave for Plaintiff as follows:
This is to verify our telephone conversation earlier today regarding [Plaintiff] needing to take FMLA today through Monday, June 6, secondary to severepanic attacks. At this time, her medication is being titrated, and I hope that she will not need further medical leave. I expect that a brief period of time for respite, along with changes in her medication will be sufficient.
Doc. 41-15 at 2. Plaintiff testified that when Miesel received the fax, he pulled it out of the printer, laughed, and threw it away without reading it. PI. Dep. at 86-87. Plaintiff told Miesel that she was having some anxiety and would like to take some time off. Id.
During her deposition, Plaintiff initially testified that she was denied time off. Id. at 89. However, Plaintiff later agreed that Chipotle’s records stated that she did not work on May 30, May 31, June 1, June 2, or June 3, and she testified that Miesel honored her request for leave. Id. at 104-06, 175; Doc. 41-4 at 4. When questioned if there was other leave that she requested and did not receive, Plaintiff answered, “I don’t know.” PI. Dep. at 175.
During her time off work between May 30, 2013 and June 3, 2013, Plaintiff started taking the new medication. Doc. 51 at ¶ 12. The Saphris made her feel “a little tired” and it “ knock[ed] me out at night.” PI. Dep. at 112. Plaintiff returned to work on June 4, 2013. Id. at 107.
Plaintiff was fired four days later, on June 7, 2013. Id. at 155. That day, Plaintiff took the Saphris in the morning because her provider told her to start taking the medication twice a day. Id. at 111, 155. Plaintiff clocked in for her shift at 11:50 a.m. Doc, 41-4 at 4. Approximately thirty minutes into her shift, Plaintiff began to feel dizzy and disoriented. Doc. 51 at ¶ 5. The parties agree that Plaintiff “was very slow, messed up orders, and was incoherent.” Id. at ¶ 6; PL Dep. at 117-18. Plaintiffs coworkers asked her what was wrong. PI. Dep. at 118. Plaintiff told them that she was on a new medication and “it’s messing with me right now.” Id.
Miesel noticed Plaintiffs condition and took her off the serving fine. Id. at 116, 119. Plaintiff “tried to explain to him what was going on.” Id. at 119. Miesel told her, “it’s fine” and to go home and get some rest. Id. at 119-20. Miesel and Plaintiff did not have any additional discussion. Id. at 120. Plaintiff clocked out at 12:51 p.m. Doc. 41-4 at 4.
Plaintiff initially testified that, immediately after she got home, Miesel called and said she was fired due to being intoxicated. PI. Dep. at 120. Plaintiff later testified that she had two phone calls with Miesel. Id. at 193. During the first phone call, Miesel “seem[ed] more empathetic.” Id. Plaintiff told him that she was on medication, she told him that she believed her behavior was a side effect of her medication, and she “was trying to plead my case.” Id. at 194. Although Miesel listened and seemed to want to offer her a second chance, he called back ten minutes later and told her, “Pm really sorry, but you just looked like you were on some [expletive], so you’re fired and you are not rehirable at Chipo-tle.” Id. at 194-96.
Chipotle’s employee handbook includes a “Drug and Alcohol Policy,” which provides, in relevant part:
No employee shall report to work or be at work under the influence of alcohol, drugs, or controlled substances, or with any detectable amount of alcohol, drugs, or controlled substances in his or her system.
Employees who must use medically prescribed or over-the-counter drugs that may adversely affect their ability to perform work in a safe’manner must notify their Manager prior to starting work. The Manager will decide if the employee can- remain at work and/or if work restrictions are necessary. The employee may be required to take a medical leave of absence or disability leave for the duration of the medication.
Doc. 41-22 at 1-2.
On June 25, 2013, Miesel sent an email to Kate Brown, responding to Brown’s request for details about Plaintiffs termination. Doc. 41-23; Doc. 51 at ¶ 9. Miesel explained the “final incident” leading to Plaintiffs termination as follows:
The final incident was the employee arriving late to work and appeared to be under the influence of some kind of medication. I had face to face talks with her regarding performance previously, but with a zero tolerance for inebriation of any kind there had been no prior incident.
It came to my attention during peak hour when she attempted to roll a burrito and basically flipped it upside down releasing the contents into a foil, she then placed the foil and tortilla (still upside down) into a bowl and slid it to the expeditor. I calmly sent her home since making a scene in front of a peak hour line of customers would have been a terrible idea. I then called and terminated her later in the afternoon.
Doc. 41-23.
On June 17, 2013, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC). Doc. 1-1 at 2. On June 12, 2014, the EEOC issued a Letter of Determination concluding that “the evidence obtained during the investigation establishes that there is reasonable cause to believe that 'Respondent terminated Charging Party due to her disability in violation of the ADAAA.” Id. at 4. On July 28, 2014, the EEOC issued a Notice of Right-to-Sue. Id. at 7.
Plaintiff filed the instant action on August 29, 2014. Doc. 1. On September 3, 2014, Plaintiff filed an Amended Complaint. Doc. 7. Plaintiff asserts four claims: interference with her FMLA rights (Count I), retaliation for exercising her- FMLA rights (Count II), disability discrimination in violation of the ADA (Count III), and disability discrimination in violation of the Florida Civil Rights Act (Count IV). Chi-potle moves for summary judgment on each count. Doc. 41.
II. Standard of Review
Summary judgment is appropriate 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; Celotex Corp. v. Catrett,
When the moving party has discharged its burden, the nonmoving party must then designate specific facts showing that there is a genuine issue of material fact. Id. at 324,
III. Discussion
A. FMLA
The FMLA creates two distinct claims: “interference claims, in which an employee asserts that his employer denied or otherwise interfered with his substantive rights under the Act, and retaliation claims, in which an employee asserts that his employer discriminated against him because he engaged in activity protected by the Act.” Hurlbert v. St. Mary’s Health Care Sys.,
The FMLA provides certain protections for “an eligible employee,” including 12 weeks of leave for a serious health condition. 29 U.S.C. § 2612. “Eligible employee” means a person “who has been employed — (i) for at least 12 months by the employer with respect to whom leave is requested under section 2612 of this title; and (ii) for at least 1,250 hours of service with such employer during the previously 12-month period.” 29 U.S.C. § 2611(2)(A). The determination of FMLA eligibility must be made “as of the date the FMLA leave is to start.” 29 C.F.R. § 825.110(d); Pereda v. Brookdale Senior Living Cmts., Inc.,
Plaintiff worked for Chipotle for approximately 10 months and three weeks. Her first day of employment was July 20, 2012, and her last day of employment was June 7, 2013. Doc. 51 at ¶ 1. As a result, Plaintiff was not employed “for at least 12 months” at the time she was fired. 29 U.S.C. § 2611(2)(A).
Although Plaintiff concedes that she was not employed for 12 months, she raises two points. First, Plaintiff argues that the FMLA protects employees who are not yet eligible for FMLA leave if they “put their employers on notice of a post-eligibility leave request.” Pereda,
Alternatively, Plaintiff argues that Chi-potle is equitably estopped from denying Plaintiffs FMLA eligibility. The Eleventh Circuit has not determined whether the doctrine of equitable estoppel applies in the FMLA context. Cowman v. Northland Hearing Ctrs., Inc.,
A party seeking to invoke equitable estoppel must establish that:
(1) the party to be estopped misrepresented material fa'cts; (2) the party to be estopped was aware of the true facts; (3) the party to be estopped intended that the misrepresentation be acted on or had reason to believe the party asserting the estoppel would rély on it; (4) the party asserting the estoppel did not know, nor should it have known, the true facts; and (5) the party asserting the estoppel reasonably and detrimentally relied on the misrepresentation.
Dawkins,
Accordingly, even to the extent that the doctrine of equitable estoppel applies to Plaintiff’s FMLA claims, she fails to establish the required elements. Because Plaintiff is not “an eligible employee” under the FMLA, Chipotle is entitled to judgment as a matter of law on the FMLA interference and retaliation claims. Hurley,
B. ADA and FCRA
Plaintiff also brings claims for disability discrimination under the ADA and FCRA, which are assessed pursuant to the same framework. Holly v. Clairson Indus., L.L.C.,
The ADA prohibits discrimination by an employer “against a qualified individual on the basis of a disability in regard to ... discharge of employees[.]” 42 U.S.C. § 12112(a). In the absence of direct evidence of discrimination, Plaintiff’s disparate-treatment claim is analyzed under the familiar McDonnell Douglas burden-shifting scheme. Cleveland v. Home Shopping Network, Inc.,
Chipotle argues that Plaintiff is unable to satisfy the first and third elements of her prima facie case. Chipotle also maintains that it had a non-discriminatory reason for Plaintiffs termination: her violation of Chipotle’s Drug and Alcohol Policy, which prohibits an employee from being at work “under the influence of alcohol, drugs, or controlled substances.” Doc. 41-22 at 2. For the reasons explained below, sufficient record evidence exists to support a finding that Plaintiff has a “disability” within the meaning of the ADAAA. Nonetheless, Plaintiff fails to demonstrate that she was discriminated against because of her disability.
The implementing Regulations for the ADAAA clarify that its primary purpose “is to make it easier for people with disabilities to obtain protection under the ADA.” 29 C.F.R. § 1630.1(c)(4). As a result, the definition of disability “shall be construed broadly in favor of expansive coverage.” Id. A “disability” is defined as (1) “a physical or mental impairment that substantially limits one or more major life activities,” (2) “a record of such impairment,” or (3) “being regarded as having such an impairment.” 42 U.S.C. § 12102(1). “Major life activities” include concentrating, thinking, interacting with others, and working, as well as the operation of a major bodily function, such as neurological or brain function. 29 C.F.R. § 1630.2(i)(l)(i)-(ii).
The ADAAA emphasizes that “[a]n impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.” 29 C.F.R. § 1630.2(j)(l)(ii). Further, “[t]he determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures,” including the effects of medication. 29 C.F.R. § 1630.2(j)(l)(vi), (5)(i). At the same time, “the non-ameliorative effects of mitigating measures, such as negative side effects of medication ... may be considered.” 29 C.F.R. § 1630.2(j)(4)(ii). In light of these principles, the Regulations specifically provide that “it should easily be concluded” that bipolar disorder “will, at a minimum ... substantially limit brain function.” 29 C.F.R. § 1630.2(j)(3)(iii).
Chipotle cites primarily pre-ADAAA case law and fails to address relevant evidence under the more lenient standards incorporated in the ADAAA’s implementing Regulations. Absent a more focused challenge by Chipotle, and given the lenient standards of the ADAAA, the Court finds that Plaintiff raises a genuine issue of fact about whether she has a disability. The relevant inquiry is whether Plaintiffs bipolar disorder is substantially limiting
Alternatively, Chipotle argues that Plaintiff fails to establish the third element of her prima facie case: that she was terminated “because of’ her disability. In the disparate-discipline context, a plaintiff typically satisfies her burden under the third element by showing that a non-disabled employee, or “comparator,” engaged in a similar work rule violation but was treated more favorably. Wolfe v. Postmaster Gen.,
Plaintiff offers no comparator evidence, and she does not dispute her violation of Chipotle’s Drug and Alcohol Policy. Instead, Plaintiff argues that Miesel fired her without first ascertaining whether Plaintiff was under the influence of illegal drugs, as opposed to experiencing side effects from Saphris, a prescription medication. Although Plaintiff does not meaningfully elaborate on this point, the gist of her argument appears to be that, if Miesel fired Plaintiff due to conduct caused by medication side effects, that decision would be tantamount to. firing Plaintiff because of her bipolar disorder. Indeed, Miesel reported to Brown that he did fire Plaintiff because she was “under the influence of some kind of medication.” Doc. 41-23.
Courts are split on the question of whether a termination based on conduct related to, or caused by, a disability constitutes unlawful discrimination. See generally Kelly Cahill Timmons, Accommodating Misconduct Under the Americans with Disabilities Act, 57 Fla. L. Rev. 187, 211-22 (2005) (reviewing majority and minority approaches). The majority position, which includes courts in the Eleventh Circuit, holds that an employer may discipline or terminate an employee for workplace misconduct even when the misconduct is a result of the disability. E.g., J.A.M. v. Nova Se. Univ., Inc., No. 15-13883,
Although the Supreme Court has not expressly resolved the split in authority, the Court discounted the minority position in Raytheon Company v. Hernandez, stating: “To the extent that [Ninth Circuit] suggested that, because respondent’s workplace misconduct is related to his disability, petitioner’s refusal to rehire respondent on account of that workplace misconduct violated the ADA, we point out that we have rejected a similar argument in the context of the Age Discrimination in Employment Act.”
Based on Raytheon and the weight of case law in this Circuit, the Court finds that the majority position controls. Although Plaintiff was arguably fired for disability-related misconduct — inebriation due to her medication — Chipotle asserts that this conduct violated the company’s Drug and Alcohol Policy, which prohibits any employee from reporting to work or being at work “under the influence of alcohol, drugs, or controlled substances.” Doc. 41-22 at 22; Doc. 41-23. That prohibition is neutral and generally applicable, and therefore satisfies Chipotle’s burden to produce a non-discriminatory reason for Plaintiffs termination. Raytheon Co.,
Having articulated a non-discriminatory reason for Plaintiff’s termi
Although Plaintiff bears the burr den to demonstrate pretext, her argument on this point is cursory and devoid of legal support. See Doc. 45 at 12-13. Plaintiff emphasizes that the EEOC found that there was reasonable cause to believe Plaintiff was fired due to her disability. See Doc. 1-1 at 4. It is well-established that “EEOC findings are not binding with regard to subsequent discrimination suits in federal court.” Hetherington v. Wal-Mart, Inc.,
Second, as already stated, Plaintiff argues that Miesel failed to determine whether Plaintiff was using illegal drugs before firing her. While that fact is undisputed, it is not probative of pretext. As an initial matter, even if Miesel’s investigation was flawed, a “ham-handed investigation,” standing alone, is not sufficient to show pretext. Flowers v. Troup Cty., Ga., Sch. Dist.,
Pretext may also be demonstrated by departures from normal procedures, but Plaintiff does not argue that Miesel misapplied or misinterpreted Chipotle’s Drug and Alcohol Policy. Cf. Morrison v. Booth,
Further, Plaintiff does not contend that Chipotle’s policy lacked legitimate, job-related goals, such as promoting employee safety and minimizing potential liability. See Doc. 41-22 at 1 (“Chipotle is committed to a safe, healthy, and productive work environment .... Abuse of alcohol, drugs, and controlled substances impairs employee judgment, resulting in faulty decision-making and increased safety risks and injuries.”). Plaintiff makes no effort to demonstrate that the policy was applied more leniently to non-disabled employees, and she does not claim that non-disabled employees were treated more favorably as a general rule. In fact, Plaintiff reported that she was being “watched carefully for a promotion” shortly before her termination. PI. Dep. at 152.
The only arguably negative behavior Plaintiff identifies on Miesel’s part is that, upon receiving the fax requesting FMLA leave, he pulled it out of the printer, laughed, and threw it away without reading it. PI. Dep. at 86-87. Plaintiff testified that she did not know why Miesel reacted in this manner, but speculated that he was “probably having a bad day.” Id. at 87. Taking the available inferences in Plaintiffs favor, Miesel’s behavior was dismissive and discourteous. However, Plaintiff agrees that Miesel allowed her to take all of the leave she requested, and rude treatment, by itself, will not support an inference of discriminatory animus. PI. Dep. at 106; Barber v. C1 Truck Driver Training, LLC,
As frequently observed, “[f]ederal courts do not sit as a super-personnel department that reexamines an entity’s business decisions.” Elrod v. Sears, Roebuck & Co.,
IV. CONCLUSION
As no genuine issues of material fat exist, Chipotle is entitled to summary judgment in its favor on all claims. Accordingly, it is ORDERED AND ADJUDGED that:
(1) Defendant’s Motion for Summary Judgment (Doc. 41) is GRANTED;
(2) The Clerk is directed to ENTER JUDGMENT in favor of Defendant, terminate any pending motions, and CLOSE this case.
DONE AND ORDERED in Tampa, Florida on May 27, 2016.
Notes
. Plaintiff’s response is largely devoid of citations to the record. The Court declines to consider any "fact” that is not accompanied by a record citation. See Fed. R. Civ. P. 56(c)(1)(A) ("A party asserting that a fact cannot be or is genuinely disputed must support the assertion by.. .citing to particular parts of materials in the record"); Fed. R. Civ. P. 56(c)(3) ("The court need consider only the cited materials”).
. Plaintiff raises no challenge to the admissibility of Miesel’s June 25, 2013, email. See Fed. R. Civ. P. 56(c)(2) .("A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.”).
. The EEOC’s Enforcement Guidance "is entitled to respect only to the extent that it has the ‘power to persuade.' ” Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1313 (11th Cir.2013) (quoting Nat’l R.R. Passenger Corp. v. Morgan,
. If Plaintiff wished to directly challenge the denial of a request for accommodation under the policy (or otherwise), the proper avenue would have been pursuant to a failure-to-accommodate claim, Although Plaintiff references a “failure to accommodate” in the opening section of her brief (Doc. 45 at 4), that claim is not pleaded in the Amended Complaint, and she does not maintain that the specific elements of a failure-to-accommodate claim are established. See, e.g., Holly,