CLARKE SILVERGLATE, P.A. 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF FLORIDA 

RUBEN BELLO, 

Plaintiff, 

vs. 

DHL EXPRESS (USA), INC., 

A Florida Company, 

Defendant. 

Case No.: 22-cv-23005-DPG 

DHL’S MOTION FOR SUMMARY JUDGMENT 

AND INCORPORATED MEMORANDUM OF LAW 

Defendant, DHL Express (USA), Inc. (“DHL”), pursuant to Federal Rule of Civil 

Procedure 56, hereby moves for summary judgment against Plaintiff Ruben Bello (“Bello”). 

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I. Introduction 

Final summary judgment for DHL is warranted—for so many reasons. 

Plaintiff brought a three-count Complaint [D.E. 1] for interference and retaliation pursuant 

to the Family Medical Leave Act (“FMLA”) and handicap discrimination under the Florida Civil 

Rights Act (“FCRA”). His alleged qualifying condition under the FMLA and his alleged handicap 

under the FCRA are the same—post-traumatic stress disorder (“PTSD”) incurred because of a 

series of verbal disputes at work on June 24, 2020. There is only one problem. No credible medical 

practitioner applying widely-recognized authoritative treatises could credibly diagnose Plaintiff 

with PTSD—both based on the lack of a legitimate “trauma” and the lack of length of 

symptomology. Plaintiff does not have and never had PTSD. On this basis alone, his allegations 

fail and summary judgment is warranted on all counts. 

Alternatively, now that all of Plaintiff’s mistruths about his medical history and the June 

24 incident have been unmasked, only one treater still believes he had PTSD—Dr. Priscilla 

Borrego from Banyan Health Systems (“Banyan”). Dr. Borrego diagnosed Plaintiff with PTSD 

on July 7, 2020, a week after he was fired. As discussed above, Dr. Borrego’s diagnosis is not 

credible and must be excluded. Even if it is admissible, however, Plaintiff did not disclose Dr. 

Borrego as an expert nor provide an expert report as required by the rules of procedure. 

Accordingly, Dr. Borrego at most can testify to her opinion of Plaintiff’s condition on July 7, 2020. 

She cannot opine about Plaintiff having PTSD at any time prior to her diagnosis. Without a 

qualified witness supporting his medical position, Plaintiff cannot present evidence that he had 

PTSD at the time DHL terminated him. On this alternative basis, summary judgment on all counts 

is warranted. 

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Finally, even if Plaintiff had PTSD, which he did not, he neither was “handicapped” nor 

had a qualifying “serious health condition” to trigger the application of the FMLA or FCRA. The 

workers’ compensation nurse practitioner who originally diagnosed Plaintiff placed no restrictions 

on his ability to work. Plaintiff has similarly not alleged or proven how his alleged PTSD has 

limited a major life activity. Plaintiff was not handicapped or regarded as handicapped, nor did he 

have a serious health condition entitling him to leave. On this additional basis, summary judgment 

on all counts is warranted. 

Finally, Plaintiff never applied for a leave of absence. By extension, he did not object to 

DHL’s denial of a leave of absence. Having not engaged in protected activity, Plaintiff cannot 

state a prima facie case of FMLA retaliation. At minimum, summary judgment for DHL is 

warranted on Count II for FMLA retaliation. 

II. Uncontroverted Facts Supporting Summary Judgment1

A. DHL and the TMB Station 

DHL specializes in the rapid, secure transportation of time-sensitive documents and air 

freight globally. In compliance with federal and state law, DHL prohibits unlawful discrimination, 

harassment and retaliation on all protected classes, including disability, and has established 

effective policies and procedures for the promotion of a bias-free workplace. DHL also has a 

fully compliant program for eligible employees to take necessary leave pursuant to the FMLA. 

DHL’s third-party administrator Sedgwick manages DHL’s FMLA policy. (Id.). 

1

 In compliance with Southern District of Florida Local Rule 56.1, DHL contemporaneously filed 

a Statement of Material Facts in numbered paragraphs attaching all supporting evidence. For ease 

of reading, DHL incorporates a substantial portion of its factual allegations here in narrative form. 

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DHL has multiple hubs in the United States, including Miami, where it operates a business 

unit in Doral known as the “TMB Station.” Most TMB Station employees are union members 

who are subject to a Collective Bargaining Agreement (“CBA”) and a Local Rider. 

B. Ruben Bello’s Employment with DHL 

Plaintiff began working for Airborne Express in 1998. In 2003, DHL acquired Airborne 

Express. Upon DHL’s acquisition of Airborne Express, Plaintiff became a DHL employee at the 

TMB Station. Plaintiff was a dockworker for DHL at the TMB Station from 2003 until July 1, 

2020. During his DHL employment, Plaintiff was a union member whose benefits and 

compensation were governed by the CBA and Local Rider. During his DHL employment, Plaintiff 

never disclosed a disability nor did he request an accommodation. 

During his DHL employment, Plaintiff displayed no signs of a disability and displayed no 

limitations in his ability to perform his work. During his final year at DHL, Plaintiff worked a 

“split shift,” meaning he worked both a morning and afternoon shift. Because of his split shift, 

Plaintiff worked directly for multiple Shift Supervisors, but his assigned Supervisor was Alex 

Saumell. During Plaintiff’s final year at DHL, the TMB Station Manager was Greg Riggin. 

C. Smoothie Incident on June 24, 2020. 

The week of June 22, 2020 was “Employee Appreciation Week” at DHL. On Wednesday 

the 24th, DHL arranged for the delivery of free smoothies to all the TMB Station employees. Each 

employee was given a raffle-like ticket to turn in upon receipt of their smoothie to make sure each 

employee received one. 

Saumell approached Plaintiff in the breakroom and asked for Plaintiff’s ticket. Plaintiff 

told Saumell that he did not have the ticket. After Saumell left the breakroom, Plaintiff was seen 

on video removing the ticket from his wallet, showing it to a co-worker while smiling, and putting 

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it back into his wallet. About three minutes later, Plaintiff removed the ticket from his wallet and 

hid it behind him under a stack of boxes while laughing with a co-worker. Less than one minute 

later, Saumell re-entered the breakroom and asked Plaintiff for the ticket again. Again, Plaintiff 

denied having the ticket. When Saumell exited the breakroom, Bello and his co-worker were seen 

laughing for several minutes. During all confrontations in the breakroom, there was no physical 

contact between Plaintiff and Saumell and there were multiple eyewitnesses present. 

Following the break, video footage captured a second verbal exchange between Plaintiff 

and Saumell, clearly over Plaintiff’s refusal to turn in the smoothie ticket. The exchange lasts 

approximately ten seconds. Again, several co-workers were present and, again, there was no 

physical contact between the two men. 

Following the second interaction, Plaintiff approached his union shop steward, Keith 

Simons (“Simons”), and informed him of the verbal disputes. Plaintiff and Simons approached 

Riggin and informed him of the verbal dispute with Saumell. Plaintiff told Riggin that Saumell 

screamed at him and threatened to fire him because he was “unable to find” his smoothie ticket. 

He failed to disclose that he had the ticket the whole time. 

The three men walked and talked and eventually were in another area captured on video. 

Saumell walked into the warehouse from another direction and crossed paths with the men. 

Saumell and Plaintiff had a brief exchange before Saumell turned around to walk away. Plaintiff 

then said something to Saumell, prompting him to walk toward him. Riggin stood between both 

men and escorted Saumell away, at which point the meeting ended. However, once again, there 

was no physical contact between Plaintiff and Saumell and there were eyewitnesses to the incident. 

The disputes captured on video represent all the disputes between Plaintiff and Saumell on 

June 24, 2020. During the exchanges, Plaintiff claims that Saumell told him that Plaintiff was 

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going to remember who Saumell was and threatened to fire him. Beyond the foregoing, Plaintiff 

has no recollection of the verbal exchanges between him and Saumell during the incident. 

D. Plaintiff Files a Grievance and Requests to Seek Treatment 

The final interaction between Bello and Saumell on June 24, 2020, occurred during the 

latter stages of Bello’s morning shift. Riggin left the facility shortly after the shift and found 

Plaintiff sitting in his car passing time between his shift. Riggin asked if Plaintiff was ok, to which 

Plaintiff replied that he did not want to discuss the incidents further. 

The following day, June 25, 2020, Plaintiff worked nearly his full shift without incident 

except for advising Riggin that he wanted to file a formal grievance through his union regarding 

Saumell’s behavior. Late in the shift, however, Plaintiff also reported anxiety and requested to 

visit Concentra, a local workers’ compensation clinic. 

Prior to leaving, Riggin had Plaintiff fill out a company form titled “Workplace Injury and 

Illness Statement.” On the form, Plaintiff described the incident: 

On June 24 in the morning, Alex Saumel[l] attacked me violently and threatened my 

integrity. As a DHL employee now I am facing extreme anxiety and cannot focus on my 

work correctly. 

E. Plaintiff Gets Treated at Concentra 

After DHL received the Illness Statement, Shift Supervisor Argelio Gil drove Plaintiff to 

the clinic, but a representative advised that the clinic was closing and that Plaintiff should come 

the following morning. On Friday, July 26, Plaintiff returned to Concentra where he treated with 

Certified Nurse Practitioner Joseph Penna. CNP Penna is neither an Advanced Registered Nurse 

Practitioner (“ARNP”) nor a Psychiatric Mental Health Advanced Registered Nurse Practitioner. 

At the start of the visit, Plaintiff provided a history. On Concentra’s intake form he noted 

that, “On June 24 in the morning a violently attack occurred.” He also advised that he had no 

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history of any depression or mental illness and was not on any medications at the time. CNP 

Penna prescribed a mild dose of an anti-depressive sleep aid and instructed Plaintiff to return on 

June 29 after the weekend. He also called Greg Riggin at the TMB Station and explained that 

Plaintiff should take the rest of the 26th off pending his return visit. Riggin agreed and designated 

it as paid time off (“PTO”) for Plaintiff. 

The same day, the 26th, Plaintiff came by the TMB Station and dropped off a “Work 

Activity Status Report” (“WASR”) from Concentra which confirmed the prescribed medication 

and Plaintiff’s follow-up appointment but included no diagnosis and no restrictions on Plaintiff’s 

ability to work. The WASR is the only document DHL receives discussing the treatment and 

impact on an employee’s work status. Plaintiff did not work weekends at the time and was 

therefore already off from work on June 27-28, 2020. 

Plaintiff returned for his appointment on Monday, June 29th. He again treated with CNP 

Penna. During this appointment, five days after the verbal disputes, CNP Penna diagnosed 

Plaintiff with PTSD. CNP Penna had never diagnosed anyone with PTSD in his career. CNP 

Penna was not aware of the authoritative diagnostic criteria for PTSD. CNP Penna prescribed no 

additional medication and again, in the WASR, noted no restrictions on Plaintiff’s ability to work. 

F. DHL Terminates Plaintiff After Riggin Investigates Further and Plaintiff 

Stops Showing Up For Work 

Over the week of June 29, Plaintiff never appeared for work. He did not respond to 

Riggin’s multiple calls, nor did he apply for a leave of absence. DHL continued to apply Plaintiff’s 

PTO. Meanwhile, Riggin investigated Plaintiff’s grievance. He reviewed the three videos 

available. He interviewed Saumell. He interviewed every witness Plaintiff identified and every 

witness visible in the videos. Riggin saw Plaintiff’s behavior clearly in the video vis-à-vis the 

smoothie ticket. He saw him double and triple down on his lies to Saumell about not having the 

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ticket. He saw Plaintiff then pull the ticket out in front of the other dockworkers to show his prank 

and undermine his supervisor. Riggin located the actual ticket where Plaintiff hid it in the 

breakroom. Riggin also saw how nothing in all the interactions between Plaintiff and Saumell that 

could credibly be seen as a “violent attack.” 

Based on Plaintiff’s compounded lies, including an accusation that could have jeopardized 

Saumell’s career if video was not available to unmask its falsity, Riggin sought and received 

authorization to terminate Plaintiff on July 1, 2020. Since Plaintiff had stopped showing up or 

returning calls, DHL notified Plaintiff of his termination via certified mail. 

G. Plaintiff Continues Treatment 

As was learned mid-litigation because Plaintiff willfully concealed it, Plaintiff has been 

treating for psychiatric illness since at least as far back as 2016. He treated with Banyan, primarily 

under the care of psychiatrist Priscilla Borrego, M.D. (“Dr. Borrego”). 

On July 1, 2020, Plaintiff treated with Banyan’s Advanced Registered Nurse Practitioner 

(“ARNP”) Ruben Bembire. Dr. Borrego knows ARNP Bembibre and described him as “very 

competent.” July 1 is the date DHL first mailed the termination letter to Plaintiff, so there is no 

basis to believe Plaintiff had received it by that time. During the July 1 appointment, ARNP 

Bembibre performed a PHQ9 questionnaire, a test used to determine how depressed a patient is. 

In a PHQ9 questionnaire, the treater grades a patient between 0 and 3, 3 being the highest, on nine 

distinct symptoms of depression. Symptoms includes energy level, ability to sleep, and feelings 

of hopelessness. Because the nine symptoms are graded between 0 and 3, the minimum PHQ9 

score is 0 and the maximum PHQ9 score is 27. On July 1, 2020, seven days after a verbal dispute 

with Saumell, ARNP Bembibre assigned Plaintiff a PHQ9 score of zero out of 27. 

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Though he had been terminated, Plaintiff returned to Concentra for an appointment on July 

6, 2020. D.O. David San Miguel treated Plaintiff on this appointment. Though his note includes 

CNP Penna’s diagnosis of PTSD, Dr. San Miguel confirmed in deposition that he did not 

independently diagnose Plaintiff with PTSD. Rather, he adopted the diagnosis from the June 29, 

2020, visit. Dr. San Miguel prescribed no limitations on Plaintiff’s ability to work. After 1) being 

advised of Plaintiff accurate psychiatric history (as opposed to the one presented to him on July 6, 

2020); 2) reviewing the videos of the verbal altercations with Saumell; and 3) being reminded of 

the authoritative diagnostic criteria for PTSD, Dr. San Miguel confirmed that he would not 

diagnose Plaintiff with PTSD from the June 24, 2020, verbal altercations. 

The following day, July 7, 2020, Plaintiff treated with Dr. Borrego. Plaintiff told Dr. 

Borrego he had been terminated. As part of her note, Dr. Borrego diagnosed Plaintiff with PTSD. 

July 7, 2020, was the first time Dr. Borrego ever diagnosed Plaintiff with PTSD. She previously 

had diagnosed Plaintiff with a condition called schizoaffective disorder. 

H. Plaintiff’s Real History

Plaintiff has a lengthy history of psychiatric illness and treatment. He at times has had 

prescriptions for 4-5 psychotropic drugs at a time. During his 20-plus year history working for 

DHL, Plaintiff never disclosed that he was coping with mental illness. His condition(s) never 

interfered with his ability to perform his job. He never requested an accommodation. 

Not only did Plaintiff not report any conditions, he willfully concealed them. DHL’s TMB 

dockworkers drive DHL commercial vehicles as part of their duties. The dockworkers periodically 

report to Concentra for a “fitness to drive” assessment. The assessment includes a current and past 

medical history, as well as the employee’s certification that s/he is providing accurate information. 

Plaintiff underwent a “fitness to drive” examination on April 20, 2018. On the exam, in response 

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to the question, “Do you have or have you ever had [] anxiety, depression, nervousness, [or] other 

mental health problems[?]”, Plaintiff answered “No.” Similarly, the examination also asked 

Plaintiff if he currently was taking any medication and provided space to disclose and describe the 

medication. Again, Plaintiff checked “No.” While making these representations, Plaintiff was in 

fact under an active diagnosis of schizoaffective disorder, bipolar type, and prescribed with four 

different psychotropic medications. 

Similarly, on June 26, 2020, during his first Concentra visit after the verbal dispute with 

Saumell, Plaintiff reported that he had no history of psychiatric illness. Not only had he been 

treating for psychiatric illness for four years, he had an appointment just three days prior. 

Plaintiff’s false history prevented Concentra’s treaters from accurately diagnosing his symptoms. 

Even during litigation in response to DHL’s interrogatories, Plaintiff gave a sworn response 

indicating that the only psychiatric treatment he had in his life was in 2020 due to the workplace 

incident with Saumell. DHL only learned about Plaintiff’s other treatment after subpoenaing 

Banyan, one of the companies Plaintiff identified as a 2020 treater. 

Plaintiff performed his role without limitations and without seeking or needing an 

accommodation for 20+ years. DHL at no time regarded Plaintiff as having a disability. The only 

knowledge DHL ever had of Plaintiff undergoing psychiatric treatment while employed with DHL 

were the two WASR’s it received from Concentra regarding treatment on June 26, 2020, and June 

29, 2020, and the one phone call on June 26 from CNP Penna to Riggin. From DHL’s knowledge 

and perspective, the June 26 visit resulted in 1) a WASR that included no diagnosis and no work 

restrictions; and 2) telephonic advice from CNP Penna for Plaintiff to take the rest of June 26 off 

pending his return visit on Monday, June 29. DHL followed that advice. 

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From DHL’s knowledge and perspective, the June 29 visit resulted in a WASR that 

included a since-retracted diagnosis of PTSD but, again, no work restrictions. The only doctor 

who still believes Plaintiff had PTSD at any point was Dr. Borrego. She made her diagnosis on 

July 7, 2020, after Plaintiff already was terminated. 

I. Plaintiff Files Charge of Discrimination 

On April 23, 2021, Plaintiff purported to exhaust his administrative remedies by filing a 

Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”). 

However, the Charge does not assert a claim for disability discrimination. Plaintiff checks the box 

for “retaliation” and the “other” box, which he specifies as a claim for harassment. In the narrative, 

Plaintiff describes that he was routinely subjected to harassment by his supervisor Alex Saumell 

for unspecified reasons and that he complained on numerous occasions to five different DHL 

managers about the ongoing harassment. He claims he suffered from PTSD as a result of the 

harassment, and that he was fired in retaliation for requesting a leave of absence. The Charge does 

not check the box for disability discrimination nor does it allege that he was fired for being 

disabled. 

III. Summary Judgment Standard 

Pursuant to Rule 56(a), summary judgment is proper “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.” Fed. R. Civ. 56(c); see also Celotex Corp. v. Catrett, 477 

U.S. 317, 322 (1986). The party seeking summary judgment bears the initial burden of identifying 

those portions of the record “which it believes demonstrate the absence of a genuine issue of 

material fact.” Id. at 323. Once the moving party has carried its burden, the non-moving party 

must show the existence of a genuine issue of material fact to avoid summary judgment. Id. 

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IV. Legal Discussion 

Plaintiff asserts three claims. In Count I, under the FMLA, Plaintiff asserts that he 

developed PTSD from his June 26, 2020, confrontations with Saumell, and that due to his PTSD, 

he needed to take leave under the FMLA. He claims DHL interfered with his FMLA rights by 

terminating him. In Count II, also under the FMLA, Plaintiff asserts that he requested FMLA 

leave due to his PTSD. He alleges that DHL terminated him in retaliation for requesting leave. In 

Count III, under the FCRA, Plaintiff alleges that he was disabled as a result of his PTSD. He 

alleges further that DHL’s termination of him constituted disability discrimination. 

As discussed below, summary judgment is warranted on each of Plaintiff’s claims. 

A. Plaintiff Did Not Have PTSD 

An element common to all of Plaintiff’s allegations is that he developed PTSD from his 

verbal disputes with Saumell on June 24, 2020. As discussed at great length in DHL’s 

contemporaneously filed Motion to Exclude Testimony of Treating Physician Dr. Priscilla Borrego 

as to Her Opinion and Diagnosis that Plaintiff Suffers or Has Suffered from Post-Traumatic Stress 

Disorder (“Daubert Motion”), Plaintiff does not suffer from and has never suffered from PTSD.2

PTSD is a rare mental health condition reserved for those who have experienced a catastrophic 

stressor outside the range of human experience and subsequently experienced severe symptoms 

for at least thirty days. “Catastrophic stressors” generally refer to war, torture, rape, severe 

automobile accidents, etc. It does not refer to an argument with your boss which includes no 

physical altercation. 

Moreover, DHL terminated Plaintiff for repetitive lying on July 1, 2020, only seven days 

after the verbal disputes with Saumell. Clinically, Plaintiff could not have developed PTSD before 

2

 DHL incorporates herein its Motion to Exclude . . . Dr. Borrego’s opinion. 

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his termination because, pursuant to authoritative treatises, PTSD requires 30 days of symptoms. 

Not only was there insufficient time to develop PTSD, Plaintiff displayed no symptoms on July 1, 

2020, during his visit with ARNP Bembibre. 

Each of Plaintiff’s claims relies on his allegation that he had PTSD. He did not have PTSD. 

Summary judgment is therefore warranted on all claims. 

B. Regardless of Whether the Court Excludes Dr. Borrego’s Opinion that 

Plaintiff Had PTSD, Plaintiff Has No Witness Who Can Testify that He Had 

PTSD at or Before the Time DHL Terminated Him. 

Plaintiff has the burden of proving he had PTSD at the time he was fired. A competent 

witness must support this allegation. Plaintiff cannot medically diagnose himself. See GEICO v. 

Seco, 2022 WL 17551449, *3 (S.D. Fla. Dec. 8, 2022) (“Medical diagnoses and medical causation 

opinions ordinarily present technical and scientific issues that require the specialized knowledge 

of an expert witness”); Nguyen v. Chater, 100 F. 3d 1462, 1467 (9th Cir. 1996) (While a lay witness 

can testify to his symptoms, “medical diagnoses are beyond the competence of lay witnesses and 

therefore do not constitute competent evidence.”). 

CNP Penna originally diagnosed Plaintiff with PTSD on June 26, 2020. However, several 

relevant events caused CNP Penna to retract his diagnosis. One, CNP Penna confirmed that he 

based his diagnosis in part on the false history Plaintiff provided—in other words, he believed he 

was treating someone with no psychiatric history rather than a patient with an active diagnosis of 

schizoaffective disorder. Two, at his deposition CNP Penna reviewed the workplace videos for 

the first time and realized no trauma occurred. Third, CNP Penna confirmed that he was unaware 

of the correct diagnostic criteria for PTSD, including that someone cannot have PTSD two days 

after a trauma. CNP Penna does not support Plaintiff’s claim that he had PTSD. 

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Similarly, Dr. San Miguel, who did not treat Plaintiff until July 6, 2020, confirmed that he 

did not diagnose Plaintiff with PTSD. After reviewing the workplace videos and being reminded 

of the authoritative diagnostic criteria for PTSD, Dr. San Miguel confirmed that he would not 

diagnose Plaintiff with PTSD. Dr. San Miguel does not support Plaintiff’s claim that he had PTSD. 

Dr. Borrego is the only treater who still believes Plaintiff had PTSD. However, she cannot 

testify that Plaintiff had PTSD prior to his termination from DHL for several reasons. One, as 

discussed in the Daubert Motion, the Court should exclude this invalid opinion pursuant to its 

gatekeeping function to Federal Rule of Civil Procedure 702. Two, even if Dr. Borrego is 

permitted to testify about her PTSD diagnosis, she made it on July 7, 2020, after DHL terminated 

Plaintiff. Plaintiff has not identified Dr. Borrego as an expert or a rebuttal expert. Plaintiff has 

not provided a report from Dr. Borrego pursuant to Federal Rule of Civil Procedure 26(a)(2) listing 

her opinions and her bases for same. Accordingly, Dr. Borrego can testify to her treatment and 

her diagnosis, but cannot offer an opinion beyond her treatment, such as an opinion that Plaintiff 

had PTSD prior to the day she diagnosed him. Worley v. Carnival Corp., 2023 WL 1840107, 

*7-8 (S.D. Fla. Jan. 27, 2023) (Absent compliance with disclosure requirements, treating 

physicians limited to testifying to facts observed during treatment); see also Kessler v. NCL 

(Bahamas) Ltd., 2020 WL 10459594, *1 (S.D. Fla. Sep. 30, 2020) (absent proper disclosure 

including a report, treating physicians may testify only as to what they observe during the course 

of their treatment; they may not venture into testimony of an expert nature) (J. Gayles); see also 

Torres v. Walmart Stores East, L.P., 2017 WL 8780915, *2 (S.D. Fla. Jun. 9, 2017). 

Dr. Borrego should not be permitted to testify that Plaintiff had PTSD at any time because 

her methodology is woefully flawed. However, even if the Court disagrees, her opinion must be 

confined to her treatment on July 7, 2020, because she did not provide a report substantiating 

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expert opinions. She cannot testify to Plaintiff’s condition prior to his termination, nor can she 

testify to her disagreement with ARNP Bembibre’s July 1, 2020, PHQ9 findings when she was not 

present for the examination. 

Based on the foregoing, Plaintiff has no witness who can support his claim that he had 

PTSD when DHL terminated him. This fact is fatal to each of his claims. 

C. Even if He Had PTSD, Which He Did Not, Plaintiff was Never Incapacitated 

as Required for FMLA Eligibility. 

The Court need not proceed any further. All three of Plaintiff’s claims are based on a false 

allegation that he had PTSD. If he did not have PTSD, his claims fail as a matter of law. 

However, even if Plaintiff had PTSD, he did not have a qualifying disability entitling him 

to FMLA leave. To receive FMLA protections, “one must be both eligible, meaning having 

worked the requisite hours, and entitled to leave, meaning an employee has experienced a 

triggering event” such as a “serious health condition” causing the employee to be unable to perform 

his job. Pereda v. Brookdale Senior Living Communities, Inc., 666 F.3d 1269, 1272 (11th Cir. 

2012); see also 29 C.F.R. § 825.112(a)(4). This threshold issue is settled in the Eleventh Circuit: 

We need not decide which of those two legal theories [interference 

or retaliation] Russell pursued in the district court, because it does 

not matter. Interference and retaliation claims both require the 

employee to establish a “serious health condition,” and as we will 

explain, Russell has failed to do that. As a result, she has not 

established her entitlement to a benefit even under the more 

employee-friendly interference theory. 

Russell v. North Broward Hosp., 346 F. 3d 1335, 1340 (11th Cir. 2003) (emphasis added); see also

Martin v. Financial Asset Mgmt. Sys., Inc., 959 F. 3d 1048, 1052-53 (11th Cir. 2020) (rejecting 

the argument that “the FMLA protects a request for FMLA leave regardless of whether the 

employee would be eligible for leave,” and holding that to state a claim for interference or 

retaliation, the plaintiff had to be eligible for the leave sought, which meant showing that she 

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suffered from a serious health condition); Hurley v. Kent of Naples, Inc., 746 F. 3d 1161, 1167 

(11th Cir. 2014); Garcia v. Delta Air Lines, 2019 WL 659424, at *3 (S.D. Fla. 2019); Tijerino v. 

Public Health Trust of Miami-Dade Cty., 2019 WL 4749845, at *4 (S.D. Fla., Aug. 26, 2019). 

Bello did not have a qualifying medical condition entitling him to take FMLA leave. 

To qualify for FMLA eligibility based on one’s own illness or injury, an employee must 

have a statutorily qualified “serious health condition.” See 29 CFR § 825.112(4). A serious health 

condition must either involve “inpatient care” or require “continuing treatment” as defined in 29 

CFR § 825.115. See 29 CFR § 825.113(a). There is no dispute that, at the time DHL terminated 

Plaintiff, he had not treated through inpatient care. In the absence of inpatient treatment, an 

employee must meet one of the six criteria under 29 CFR § 825.115. Each of the six potential 

criteria require “incapacity,” a term defined as “inability to work, attend school or perform other 

regular daily activities due to the serious health condition, treatment therefore, or recovery 

therefrom.” 29 CFR § 825.113 (b) (emphasis added). 

Between the June 24, 2020, verbal dispute and DHL’s termination decision on July 1, 2020, 

Plaintiff visited Concentra twice—on June 26 and June 29. DHL received a one-page WASR for 

each visit. Neither WASR included any restriction on Plaintiff’s ability to work. By definition, 

Plaintiff was not “incapacitated.” Moreover, the June 26 WASR did not ascribe a condition to 

Plaintiff. June 26 was a Friday. CNP Penna prescribed a mild dose of an anti-depressant and 

asked to see him again the following Monday. Plaintiff was off Saturday and Sunday, and returned 

for his follow-up visit on Monday the 29th. At the follow-up appointment, CNP Penna diagnosed 

Plaintiff with PTSD (which he has since retracted), but did not prescribe him any medication or 

place any work restrictions on him. In the absence of inpatient care or incapacity as defined by 

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the FMLA, Plaintiff cannot establish that he was entitled to FMLA leave. DHL is therefore entitled 

to final summary judgment as to Counts I and II. 

D. Count II is Further Barred Because Plaintiff Did Not Engage in Protected 

Activity. 

Count II is for FMLA retaliation. As discussed above, summary judgment is warranted 

because, under Eleventh Circuit precedent, Plaintiff cannot assert an FMLA retaliation claim 

without a qualifying “serious health condition.” Russell, 346 F. 3d at 1340; Martin, 959 F. 3d at 

1052; Hurley, 746 F. 3d at 1167; Garcia, 2019 WL 659424 at *3; Tijerino, 2019 WL 4749845 at 

*4. Count II first fails because Plaintiff did not have PTSD. Count II alternatively fails because 

even if Plaintiff had PTSD, he was not sufficiently incapacitated for his PTSD to qualify as a 

“serious health condition” under the FMLA. 

Count II suffers yet another fatal blow, however. To establish a prima facie of retaliation, 

an FMLA plaintiff must show 1) he engaged in a statutory protected activity; 2) he suffered an 

adverse employment decision; and 3) the decision was causally related to the protected activity. 

Hyde v. K.B. Home, Inc., 355 Fed. Appx. 266, 272-73 (11th Cir. 2009); Wills v. Walmart 

Associates, Inc., 592 F. Supp. 3d 1203, 1233 (S.D. Fla. 2022). Plaintiff cannot satisfy the first 

prong of a prima facie case. “Protected activity” under the FMLA means opposing a practice that 

is allegedly unlawful under the Act. See Walker v. Elmore Cty. Bd. of Educ., 379 F. 3d 1249, 1253 

(11th Cir. 2004); Ramos v. University of Miami, 2021 WL 4949160, *2-3 (S.D. Fla. Oct. 2021); 

Barreto v. WGCC, Inc., 2007 WL 9702904, *3 (S.D. Fla. Jan. 8, 2007). 

The issue of FMLA leave never arose during Plaintiff’s employment. On Friday, June 26, 

2020, he dropped off a WASR that included no diagnosis, a mild prescription, and no work 

restrictions. Plaintiff did not request any leave. On Monday, June 29, 2020, he dropped off another 

WASR that included a diagnosis, no medication prescription, and no work restrictions. Plaintiff 

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did not request any leave. From June 29, 2020 through the July 1, 2020 termination, Plaintiff did 

not show for work. He did not answer Riggin’s phone calls. He did not return Riggin’s phone 

calls. He did not request leave. 

With Plaintiff having never sought leave, DHL never granted or denied such a request. By 

extension, there was no denial for Plaintiff to protest. He did not engage in protected activity, and 

summary judgment on Count II is proper on this additional ground. 

E. Summary Judgment is Warranted on Bello’s Handicap Discrimination Claim. 

Count III is for handicap discrimination under the Florida Civil Rights Act, Fla. § 760.10, 

et seq. (“FCRA”). To establish a prima facie case of handicap discrimination under the FCRA, 

the employee bears the burden of proving he “(1) has or is perceived to have a “disability”; (2) is 

a “qualified” individual; and (3) was discriminated against because of the disability.” Goldsmith 

v. Jackson Memorial Hosp. Public Health Trust, 33 F. Supp. 2d 1336 (S.D. Fla. 1998). As with 

Counts I-II, Plaintiff’s alleged disability is that he had PTSD as a result of his verbal disputes with 

Shift Supervisor Alex Saumell on June 24, 2020. 

1. Plaintiff did not have PTSD. 

As discussed throughout this Motion and in DHL’s companion Daubert Motion, Plaintiff 

does not have and never has had PTSD. Alternatively, the only physician who believes Plaintiff 

had PTSD, Dr. Borrego, did not diagnose him until after DHL terminated him. Because she is not 

disclosed as an expert, she cannot testify that Plaintiff had PTSD prior to her July 7, 2020, 

treatment date. On this basis alone, he cannot state a prima facie case of disability discrimination. 

Summary judgment should be entered as to Count III and the Court need not proceed any further. 

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2. Even if Plaintiff had PTSD, DHL had no knowledge he was disabled. 

Plaintiff did not have PTSD, and the Court need not proceed any further because Plaintiff 

cannot meet the first prong of a prima facie case. However, even if he had PTSD, he cannot meet 

the third prong of a prima facie case because DHL had no knowledge that he was disabled. See 

Williams v. School Bd. of Pinellas Cty., Florida, 2023 WL 2810731, *3 (M.D. Fla. Apr. 6, 2023) 

(“where a plaintiff cannot show ‘that his employer had actual or constructive knowledge of his 

disability,’ the plaintiff cannot ‘sustain a case of handicap discrimination.’”); see also Kuczynski 

v. Lyra Management, Inc., 2010 WL 326060, *3 (S.D. Fla. Jan. 21, 2010) (citing several cases for 

the proposition that an employer’s knowledge of an employee’s disability is an essential element 

to prove that the employer discriminated against the employee because of the disability). 

A medical condition alone is not a disability. Handicap discrimination claims under the 

FCRA are analyzed using the same framework as federal Americans with Disabilities Act 

(“ADA”) claims. Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2007). Under 

the ADA, a disability is defined as: “(1) a physical or mental impairment that substantially limits 

one or more of the major life activities of such individual; (2) a record of such an impairment; or 

(3) being regarded as having such an impairment.” 42 U.S.C. § 12102(2). The Equal Employment 

Opportunity Commission’s (“EEOC”) regulations explain that major life activities are functions 

such as “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, 

standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, 

thinking, communicating, interacting with others, and working.” 29 C.F.R. §1630.2(i). An 

impairment “substantially limits” a major life activity when the individual is substantially limited 

from performing a “major life activity as compared to most people in the general population.” 29 

C.F.R. § 1630.2(j)(1)(ii). Importantly, however, if a limitation on a major life activity is corrected 

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by medication or other measures, the patient is not disabled. See Corning v. LodgeNet Interactive 

Corp., 896 F. Supp. 2d 1138, 1146 (M.D. Fla. 2012); Meisenhelder v. Florida Coastal School of 

Law, Inc., 2010 WL 2028089, *3 (M.D. Fla. 2010). 

The uncontroverted facts are (1) Plaintiff never disclosed any psychiatric conditions to 

DHL prior to June 26, 2020; and (2) the WASR’s provided to DHL do not list any limitations on 

Plaintiff’s ability to work or any other impact on any of Plaintiff’s major life functions; and (3) 

Plaintiff never reported any inability to work or any limitations on one of this major life functions. 

For twenty-plus years, he showed every ability to perform his job without an accommodation. 

Without any knowledge that Plaintiff was disabled, DHL could not have fired him because of a 

disability. Indeed, DHL fired him for a series of lies—first to his direct supervisor when he kept 

falsely insisting he did not have the “smoothie ticket” and then to the station manager when he lied 

about being “violently attacked.” 

3. Plaintiff did not exhaust his administrative remedies as to a handicap 

discrimination claim. 

To bring suit for discrimination under the FCRA, a plaintiff first must exhaust 

administrative remedies by timely filing a charge of discrimination with the appropriate 

commission. See Francois v. Miami Dade Cnty., 432 Fed. Appx. 819, 821 (11th Cir. 2011); 

Weatherly v. ABC Legal, Inc., 2023 WL 2701574, *5 (S.D. Fla. March 10, 2023) (Gayles, J.). If 

a claim not administratively exhausted is brought as part of a subsequent lawsuit, the proper inquiry 

is whether a claim is like or related to, or grows out of the allegations contained in the 

administrative charge. Gregory v. Ga. Dep’t of Hum. Res., 355 F. 3d 1277, 1279-80 (11th Cir. 

2004); Weatherly, 2023 WL 2701574 at *5. 

In Weatherly, this Court granted summary judgment on a national origin claim for failure 

to exhaust administrative remedies. Id. at *5. In the charge, the plaintiff checked the boxes for 

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race discrimination and retaliation. Id. at *4. The plaintiff did not check the national origin box 

and only mentioned that Plaintiff was “a white woman of Russian descent.” Id. at *5. The Court 

found this lone reference insufficient to put defendant on notice of a potential national origin 

discrimination claim. 

 Similarly, in this case Count III alleges that DHL terminated Plaintiff because he had 

PTSD. The charge of discrimination alleges no such thing. Plaintiff checked the boxes for 

retaliation and harassment; he did not check the disability box. The narrative claims that Saumell 

chronically harassed Plaintiff on unspecified grounds to the point where Plaintiff developed PTSD. 

The narrative then alleges that Plaintiff’s treaters instructed him to take time off and, when he 

requested the time, DHL fired him in retaliation for attempting to take leave. The charge in no 

way alleges that DHL fired Plaintiff due to an animus against people with PTSD or disabled people 

in general. Plaintiff failed to exhaust administrative remedies as to a handicap/disability 

discrimination claim. 

On these alternative bases, summary judgment is warranted as to Count III. 

V. Conclusion 

Based on the foregoing, summary judgment for DHL on all counts is warranted. 

Respectfully submitted, 

CLARKE SILVERGLATE, P.A. 

5301 Blue Lagoon Drive, Suite 900 

Miami, FL 33126 

Telephone: (305) 377-0700 

Facsimile: (305) 377-3001 

By: /s/ Craig Salner 

 Craig Salner 

 Florida Bar No. 669695 

csalner@cspalaw.com

smunguia@cspalaw.com

socd@cspalaw.com

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CLARKE SILVERGLATE, P.A. 

 Maria J. Londono, Esq. 

 Florida Bar No. 1011034 

mlondono@cspalaw.com

jsantana@cspalaw.com

Counsel for Defendant DHL Express (USA), 

Inc. 

CERTIFICATE OF SERVICE 

WE HEREBY CERTIFY that a true and correct copy of the foregoing was electronically 

filed on July 7, 2023, with the Clerk of Court using the CM/ECF system, which will send e-filing 

notices to all counsel of record identified below:e 

Henry Hernandez, Esq. 

Florida Bar No. 542601 

henry@hhlawflorida.com

GARCIA HERNANDEZ, P.A. 

2655 S. LeJeune Road, Suite 802 

Coral Gables, Florida 33134 

T: (305) 771-3374 

Co-Counsel for Plaintiff 

Monica Espino, Esq. 

Florida Bar No. 834491 

me@espino-law.com

Espino Law, PL 

2250 SW 3rd Ave, Ste. 400 

Miami, FL 33129 

T: (305) 704-3172 

Co-Counsel for Plaintiff 

CLARKE SILVERGLATE, P.A. 

By: /s/ Craig Salner

Craig Salner 

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