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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 9:20-cv-80993-WPD

TIMOTHY O’BRYAN

Plaintiff,

vs. 

JOE TAYLOR RESTORATION, INC., a Florida

Corporation, AARON GETTY, individually, 

KAREN RADEWICZ, individually, and

GLENDA GALARZA, individually, 

Defendants.

 /

DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO RULE 11

AND INCORPORATED MEMORANDUM OF LAW

Defendants, JOE TAYLOR RESTORATION, INC. (“JTR”), AARON GETTY, 

individually, KAREN RADEWICZ, individually, and GLENDA GALARZA, individually, 

(collectively referred to as “Defendants”), hereby file their motion for sanctions pursuant to Fed. 

R. Civ. P. 11 against Plaintiff, TIMOTHY O’BRYAN (“Plaintiff”) and Plaintiff’s counsel, Law 

Offices of Levy & Levy, P.A. The grounds upon which this motion is based and the substantial 

matters of law supporting those grounds are described with specificity below. 

1. On or about June 23, 2020, Plaintiff filed his complaint seeking damages pursuant 

to the Family and Medical Leave Act, 29 U.S.C. §2601-2654 (“FMLA”), as temporarily modified 

pursuant to the Families First Coronavirus Response Act (“FFCRA”). Plaintiff’s complaint 

includes two (2) counts for relief, one for “interference” with FMLA, including FFCRA, rights and 

the other for “retaliation”. Recently, Plaintiff voluntarily dismissed Count II, the retaliation count, 

leaving only the interference with FMLA count. ECF No. 12, 13. The crux of Plaintiff’s allegations 

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are found at paragraphs 9-221in relevant part:

9. Plaintiff was an employee for the Defendant since January 18, 2018 as a 

mold and fire technician.

10. During Plaintiff’s employment, he was a satisfactory employee.

11. However, Plaintiff began feeling ill on or about March 30, 2020 and was 

coughing, which he promptly reported to Ms. Galarza [Plaintiff’s 

supervisor].

12. Given he was exhibiting symptoms of COVID-19, on April 1, 2020, Ms. 

Galarza and Ms. Radewicz [Human Resources] informed Plaintiff to stay 

home and complete two health forms for leave which Plaintiff promptly 

returned the next day.

13. Thus, Plaintiff was to quarantine for a period of 14 days (i.e. April 15, 

2020).

. . . 

16. On April 13, 2020, Plaintiff asked Ms. Galarza if he was able to return to 

work on April 15, 2020 as he needed to get back to work . . . .

. . . .

13. Ms. Radewicz informed Plaintiff to provide a doctor’s note that he was able 

to return to work.

14. Plaintiff subsequently obtained a doctor’s note on April 14, 2020 that 

indicated he had self-quarantined due to a fever he experienced but could 

return to work as it had been 14 days.

16. On April 16, 2020, Plaintiff informed Ms. Radewicz and Ms. Galarza that 

he was getting tested for COVID-19 the following day (Friday, April 17, 

2020).

17. The next business day . . . Mr. Getty [Vice President], Ms. Radewicz and 

Ms. Galarza called Plaintiff and terminated his employment.

18. Plaintiff obtained his test results after he was terminated, which in fact, 

confirmed that he was positive for COVID-19. 

1 Paragraphs 17-22 are misnumbered as 13-18. 

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ECF No. 1, pp. 2-4. Plaintiff also alleges Defendants unlawfully interfered with Plaintiff’s exercise 

of his FFCRA rights by denying him benefits that he was afforded. Id., ¶ 21. Plaintiff seeks all 

damages recoverable under the FMLA as temporarily modified by the FFCRA, and all litigation 

expenses and costs, including attorney’s fees and any other lawful and equitable relief. 

2. On or about July 20, 2020, Defendants filed their Answer and Affirmative 

Defenses. ECF No. 6.

3. Prior to filing his complaint, on or about April 2, 2020, Plaintiff’s counsel sent a 

demand letter to Defendants, setting forth the same allegations as ultimately set forth in Plaintiff’s 

complaint and demanding a “settlement”.

4. Defendants’ counsel submitted to Plaintiff’s counsel a detailed response to the 

demand letter, providing a timeline of the specific facts, details, communications and related 

documents exchanged between Plaintiff and Defendants from on or around March 18, 2020 

through on or around April 20, 2020, the relevant time period. A copy of Defendant’s counsel’s 

email to Plaintiff’s counsel dated May 22, 2020 is attached hereto as Exhibit “A.” As demonstrated 

therein:

a. Mr. O’Bryan was on the schedule and worked on Monday – Wednesday, the week 

of March 16, 2020.

b. However, on or about Wednesday, March 18, 2020, Mr. O’Bryan sent the following 

electronic communication from his phone to his supervisor, Glenda Galarza: “Hi 

Glenda, sorry I didn’t see you before I left. I left shortly after lunch cause i was 

starting to get a headache which usually ends with a migraine. I got home and 

took my migraine medication I'm good now. See you tomorrow.”

c. Around this same date, JTR sent a couple of employees home because they were 

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around someone who showed symptoms of COVID-19. For this same reason, and 

as JTR was being ultra-cautious with regard to the COVID-19 pandemic at this 

point back in March, JTR asked Mr. O’Bryan to provide a doctor’s note relating to 

his headache symptoms before returning to work, as JTR wanted to make sure Mr. 

O’Bryan was not positive for Coronavirus. Mr. O’Bryan therefore was taken off 

the schedule as of March 19.

d. On or about March 23, 2020 (the following Monday), Mr. O’Bryan provided JTR 

with a return to work doctor’s note, related only to his headache symptoms.

e. The note indicated Mr. O’Bryan was under Dr. Newcomer’s care since March 9, 

2020. Since it did not indicate anything relating to COVID-19, JTR allowed Mr. 

O’Bryan to return to work at this time. Additionally, Mr. O’Bryan was permitted 

to use his PTO from March 19 – March 24, so he did not miss any pay.

f. On Wednesday, March 25, Mr. O’Bryan did not report to work, this time due to an 

alleged “stiff back”. Ms. Galarza emailed him: “I hope all is well. This morning I 

was notified ... you did not come to work today due to a “stiff back”. I was not 

notified by you directly, so I am reaching out to confirm this was the case and to 

check on you. Can you please provide us with a description of you 

symptoms/pain/etc. and what might have caused this. Did you contact your doctor? 

I have copied HR and Aaron on this email to keep them in the loop. Thank you.”

g. Mr. O’Bryan responded via electronic communication from his phone 

approximately fifteen (15) minutes later: “I did call my doctor that did my surgery 

and explained the problem and he said if I have been just laying around not doing 

anything that would cause it. He told me some stretches to do 1st thing when I wake 

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up and walking will help.”

h. Ms. Galarza then responded: “received your email, thanks for the quick reply. Since 

you already had a doctor’s appointment scheduled for tomorrow and had asked to 

leave early, please take tomorrow off and let’s touch base after your appointment 

to make sure all is well. Thank you.”

i. Mr. O’Bryan replied: “Ok, thanks. Also sorry I didn’t inform you sooner about not 

coming in today. I contacted Chris at 6am this morning and i know you said not to 

contact you that early so i was gonna contact you later.”

j. Mr. O’Bryan continued to use his PTO for March 25 and 26, so he did not miss any 

pay.

k. Mr. O’Bryan worked on Friday, March 27 and the following Monday, March 30.

l. After hours on Monday, March 30, O’Bryan emailed Radewicz, inquiring as to pay 

issues relating to time missed from work due to COVID-19; Radewicz immediately 

responded and advised O’Bryan (and other others) would be able to take PTO or 

borrow against future PTO if out sick (the FFCRA was not effective until April 1, 

2020).

m. Coincidentally, the next day, on March 31, 2020, Plaintiff advised Galarza via text 

message from his phone: “I called Christian this morning to let him know I wasn't 

coming in cause I'm not feeling good. Was up coughing and a little dizzy last night 

no fever though. The coughing started yesterday. Feels like a chest cold.” 

n. On April 2, 2020, Galarza and Radewicz called Plaintiff to notify him he was to 

provide them with COVID-19 test results. A follow-up email on the same day 

stated, “Tim, Thank you for taking our call today. I’m glad to hear you are not 

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coughing as much anymore and no fever! Please touch base with me every morning 

to keep me posted on how you are feeling. Attached you will find 2 forms to be 

completed and returned to me or HR if needed. Please confirm the attachments were 

received. Let us know if you need anything and get better soon! Thank you.” The 

two (2) forms were a Certification of Employee for Eligibility for COVID Related 

Paid Leave and an Employee Request for Emergency Paid Sick Leave. 

o. On April 2, Mr. O’Bryan signed and returned both forms. At this point, the 

Company started tracking the days associated with Mr. O’Bryan’s self-quarantine, 

so as to know when the recommended 14-day period was up.

p. Galarza and Radewicz followed up with Mr. O’Bryan at that point, via telephone, 

and asked Mr. O’Bryan to provide JTR with any COVID-19 test results.

q. Mr. O’Bryan used his PTO for March 31 through April 3, 2020, while the Company 

attempted to confirm his eligibility for COVID related paid leave, pursuant to the 

FFCRA.

r. On April 6, 2020, Plaintiff left a voice mail on Galarza’s phone informing her he 

was “100% better” and ready to come back to work.

s. As this was inconsistent with Mr. O’Bryan’s previous reports, and because the 

company certainly did not want a potentially infected employee in the workplace, 

on Tuesday, April 7, 2020, Galarza emailed Plaintiff, “Tim, I hope you are feeling 

better. I received your voicemail yesterday. Please contact your Dr. to provide you 

with a note that says you are not contagious and you are released back to work or a 

negative test results. Thank you so much.” On the same day, Plaintiff emailed 

Galarza, “Hi Glenda, I spoke to my doctor and he advised me to self-quarantine 

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the 2 weeks. I started running a fever last night but no other symptoms. I'll keep 

you updated on how I'm doing. Talk to you soon.”

t. The next day, April 8, 2020, Ms. Galarza followed up yet again: “Thank you for 

the update. Please take care of yourself and check in everyday so I know how you 

are doing. Thanks!”

u. On April 13, 2020, Plaintiff emailed Galarza, “Hi Glenda, just wanted to reach out 

and let you know I'm feeling fine and ready to come back Wednesday the 15th. My 

2 weeks ends after tomorrow. Never got any symptoms. Hope to be on the schedule 

for Wednesday. Thank you.” On the same day, Galarza emailed Radewicz, with 

copy to Getty and Plaintiff, “Tim, I received your email and have forwarded to 

Karen for her review and to advise on how to proceed.”

v. Mr. O’Bryan’s representation at this time that he “never got any symptoms” was 

inconsistent with his prior communications, to the effect that he started coughing 

as of March 30 and had a fever as recently as April 7. Moreover, on April 7, Mr. 

O’Bryan reported that his doctor advised him to self-quarantine for 2 weeks, 

which would have been until April 21.

w. On April 14, 2020, Galarza called Plaintiff to remind him that they still needed his 

COVID-19 test results. On the same day, Plaintiff also emailed Radewicz, “Hi 

Karen, I have a video call with my doctor at 2:15pm today to discuss me being able 

to return to work.” Further, Plaintiff attached an updated Request for Emergency 

Paid Sick Leave to Radewicz’s email, which alleged he had been advised by a

doctor to quarantine since April 7, 2020.

x. On April 15, 2020, Plaintiff emailed Galarza and Radewicz a cropped photo of a 

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doctor’s note. Radewicz responded on the same day, “Hi Tim, Thank you for 

sending the doctor’s note over. Would you please take a photo of the entire 

document, we will need to see the doctor’s facility to ensure we can accept it for 

returning to work.”

y. On April 16, 2020, Plaintiff emailed Galarza and Radewicz, “Hi Glenda & Karen, 

I have an appointment to get tested tomorrow at 10 am. When I get the results I'll 

let you know. Will that change my status on getting paid the sick pay?”

z. On April 17, 2020, Plaintiff left a voice mail message with Radewicz, where 

Plaintiff stated that he was tested for COVID-19 and that it would take 5 days for 

results. Plaintiff also alleged that he spoke with someone from the CDC who told 

him he could have been considered “presumptive positive” on March 31. 

aa. Finally, on the ensuing Monday, April 20, 2020, Ms. Galarza, Ms. Radewicz and 

the Company’s Vice-President, Aaron Getty, called Mr. O’Bryan to see how he was 

feeling and if he had received the test results yet. During this conversation, which 

took place over speakerphone, Mr. O’Bryan admitted he had not been honest about 

the doctor and quarantining. As a result, JTR advised Mr. O’Bryan it would have 

to involuntarily terminate Mr. O’Bryan’s employment as he had not been honest 

with the company. However, JTR agreed it would not challenge Mr. O’Bryan’s 

claim for unemployment compensation benefits. JTR also gave Mr. O’Bryan the 

option of voluntarily resigning, but in that case, by law, he would not be eligible 

for unemployment. Mr. O’Bryan chose involuntarily termination. All three 

witnesses will attest to this conversation, including the fact Mr. O’Bryan 

specifically mentioned he “felt bad” about the entire situation as he always teaches 

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his kids to be honest.

bb. On April 23, 2020, Plaintiff left a voicemail with Radewicz stating he tested 

positive for COVID-19.

cc. According to Dr. Newcomer’s medical records, and completely contrary to that 

which O’Bryan advised Defendants, at no time did Dr. Newcomer direct Plaintiff 

to self-quarantine, remain at home, or isolate. Significantly, Dr. Newcomer noted 

on April 17, 2020, “I will not write letter that I directed [O’Bryan’s] action when 

in fact I did not.”

5. Not only do these facts suggest the claims are frivolous, the legal claims themselves 

are frivolous, as the FMLA has no application here.

6. Recently enacted in response to the COVID-19 pandemic, the Families First 

Coronavirus Response Act (“FFCRA”), Pub. L. No. 116-127, 134 Stat. 178 (2020), is divided into 

multiple divisions containing separate provisions. One division of the FFCRA contains the 

Emergency Family and Medical Leave Expansion Act (“EFMLEA”). 134 Stat. at 189–92. The 

EFMLEA temporarily amends the FMLA to entitle certain employees to 12 weeks of leave per 

year “because of a qualifying need related to a public health emergency.” 29 U.S.C. § 

2612(a)(1)(F). An employee has such a qualifying need if:

the employee is unable to work (or telework) due to a need for leave to care for the 

son or daughter under 18 years of age of such employee if the school or place of 

care has been closed, or the child care provider of such son or daughter is 

unavailable, due to a public health emergency.

Id. at § 2620(a)(2)(A). The requisite “public health emergency” must be related to COVID-19. Id. 

at § 2620(a)(2)(B). 

7. The other division of the FFCRA is the Emergency Paid Sick Leave Act 

(“EPSLA”). 134 Stat. at 195–201. The EPSLA does not amend the FMLA. Rather, it is a separate 

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provision with enforcement provisions tied to the Fair Labor Standards Act. § 5105, 134 Stat. at 

197. Unlike the EFMLEA's single qualifying need, the EPSLA lists six circumstances related to 

COVID-19 which could trigger paid sick time. 134 Stat. at 195–96.2

8. Plaintiff alleges only violations of the FMLA, as amended by the EFMLEA, under 

both an “interference” and “retaliation” theory. However, Plaintiff has not alleged he was unable 

to work due to a need for leave to care for a child under 18 years of age, whose school or place of 

care has been closed, or that the care provider of such child was unavailable, due to COVID-19. 

As such, Plaintiff’s claims also are legally frivolous. See Thornberry v. Powell Cty. Det. Ctr., No. 

CV 5:20-271-DCR, 2020 WL 5647483, at *2 (E.D. Ky. Sept. 22, 2020).

9. Plaintiff cannot, in good faith, allege he was denied paid sick time in this case, 

pursuant to the EPSLA (he was not). 

MEMORANDUM OF LAW

A. Sanctions Should be Awarded Pursuant to Rule 11

Unless Plaintiff withdraws his Complaint within twenty-one (21) days of service of this 

motion, this Court should award Defendants their reasonable attorneys’ fees and costs incurred in 

having to defend against this lawsuit. 

B. Legal Standard for Sanctions and Attorneys’ Fees Pursuant to Rule 11

By filing a pleading in federal court, an attorney is certifying that to the best of his or her 

knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, 

inter alia:

2 The FFCRA also permits retaliation claims related to FFCRA sick leave under the FLSA. 

See Kofler v. Sayde Steeves Cleaning Serv., Inc., No. 8:20-CV-1460-T-33AEP, 2020 WL 5016902, 

at *4 (M.D. Fla. Aug. 25, 2020), citing 29 C.F.R. § 826.150(b)(2).

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(2) the claims, defenses, and other legal contentions therein are warranted by 

existing law or by a nonfrivolous argument for the extension, modification, or 

reversal of existing law or the establishment of new law; [and]

(3) the allegations and other factual contentions have evidentiary support or, if so 

identified specifically, are likely to have evidentiary support after a reasonable 

opportunity for further investigation or discovery ....

Fed. R. Civ. P. 11. In this Circuit, a district court has the discretion to award sanctions pursuant to 

Rule 11 under the following circumstances: “(1) when a party files a pleading that has no 

reasonable factual basis; (2) when the party files a pleading that is based on a legal theory that 

has no reasonable chance of success and that cannot be advanced as a reasonable argument to 

change existing law; or (3) when the party files a pleading in bad faith for an improper purpose.” 

Anderson v. Smithfield Foods, Inc., 353 F.3d 912, 915 (11th Cir. 2003) (internal quotations and 

citations omitted).

To determine whether to impose Rule 11 sanctions, a court first determines “whether the 

party's claims are objectively frivolous – in view of the facts or law – and then, if they are, whether 

the person who signed the pleadings should have been aware that they were frivolous; that is, 

whether she would have been aware had she made a reasonable inquiry.” Worldwide Primates, 

Inc. v. McGreal, 87 F.3d 1252, 1254 (11th Cir. 1996). If such a “reasonable inquiry” was not made, 

then the court must impose sanctions – despite a good faith belief that the claims were sound. Id. 

Rule 11 sanctions are designed to “discourage dilatory or abusive tactics and help to 

streamline the litigation process by lessening frivolous claims or defenses.” Donaldson v. Clark, 

819 F.2d 1551, 1556 (11th Cir. 1987) (en banc) (internal quotations and citations omitted). They 

“may be imposed for the purpose of deterrence, compensation and punishment.” Aetna Ins. Co. v. 

Meeker, 953 F.2d 1328, 1334 (11th Cir. 1992). When a pleading, motion or other paper is 

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determined to be in contravention of Rule 11, the signing attorney and/or the party represented are 

subject to appropriate sanctions. See Fed. R. Civ. P.11(c). 

Based on the Plaintiff’s own allegations, it is abundantly clear that this entire lawsuit, and 

certainly the filed complaint, is completely frivolous. Accordingly, Defendants believe sanctions 

are appropriate under Rule 11, imposed on Plaintiff and his counsel.

COMPLIANCE WITH RULE 11

A party seeking sanctions must first serve its Rule 11 motion on the opposing party—and 

allow 21 days for the offending party to cure the potential problem by withdrawing the offending 

paper, claim, or contention. Meunier Carlin & Curfman, LLC v. Scidera, Inc., 813 Fed. Appx. 368, 

375 (11th Cir. 2020). Per Fed. R. Civ. P. 11(c)(2), a copy of this motion was sent to opposing 

counsel on October 12, 2020. See email from Levine to Levy, dated October 12, 2020, attached as 

Exhibit B. 

The complaint has not been withdrawn during the 21-day safe harbor period. The 

complaint, however, was amended to remove Count II for retaliation. Therefore, the only 

remaining count is Count I, and as it has not been withdrawn, it is sanctionable for the foregoing 

reasons.

Dated: November 6, 2020 Respectfully submitted,

Boca Raton, FL

s/ Daniel R. Levine

DANIEL R. LEVINE, ESQ.

Florida Bar No. 0057861

E-mail: DRL@PBL-Law.com

PADULA BENNARDO LEVINE, LLP

3837 NW Boca Raton Blvd., Suite 200

Boca Raton, FL 33431

Telephone: (561) 544-8900

Facsimile: (561) 544-8999

Attorneys for Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on November 6, 2020, I electronically filed the foregoing document 

with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being 

served this day on all counsel of record identified on the Service List below via transmission of 

Notices of Electronic Filing generated by CM/ECF.

s/ Daniel R. Levine

DANIEL R. LEVINE, ESQ.

SERVICE LIST

Timothy O’Bryan v. Joe Taylor Restoration, Inc., et al.

Case No. 9:20-cv-80993-WPD

United States District Court, Southern District of Florida

Chad E. Levy, Esquire

E-Mail: chad@levylevylaw.com

Law Offices of Levy & Levy, P.A.

1000 Sawgrass Corporate Parkway, Suite 588

Sunrise, FL 33323

Counsel for Plaintiffs

Telephone: (954) 763-5722

Facsimile: (954) 763-5723

Via CM/ECF

Daniel R. Levine, Esquire

E-Mail: DRL@PBL-Law.com

Padula Bennardo Levine, LLP

3837 NW Boca Raton Blvd., Suite 200

Boca Raton, FL 33431

Telephone: (561) 544-8900

Facsimile: (561) 544-8999

Counsel for Defendants

Via CM/ECF

David M. Cozad, Esquire

E-Mail: david@levylevylaw.com

Law Offices of Levy & Levy, P.A.

1000 Sawgrass Corporate Parkway, Suite 588

Sunrise, FL 33323

Counsel for Plaintiffs

Telephone: (954) 763-5722

Facsimile: (954) 763-5723

Via CM/ECF

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