VIRGINIA EMERSON HOPKINS, District Judge.
This is a civil action filed by the plaintiff, Rhianna Moon, against the defendant, Kappler, Inc. ("Kappler"), alleging violations of the Family Medical Leave Act ("FMLA"), 28 U.S.C. § 2601, et seq., and the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. Specifically, the complaint alleges FMLA Interference (Count One), FMLA Retaliation (Count Two), and Discrimination in Violation of the ADA (Count Three). All counts arise out of the plaintiff's employment with the defendant.
The case comes before the court on the cross motions for summary judgment filed by the parties. (Docs. 26, 27). The defendant moves for summary judgment on all claims. (Doc. 26). The plaintiff seeks summary judgment on her FMLA Interference claim only. (Doc. 27). For the reasons stated herein, both motions will be
Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) ("[S]ummary 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 and that the moving party is entitled to a judgment as a matter of law.") (internal quotation marks and citation omitted). The party requesting summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings in answering the movant. Id. at 324. By its own affidavits — or by the depositions, answers to interrogatories, and admissions on file — it must designate specific facts showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If the evidence presented by the non-movant to rebut the moving party's evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249.
How the movant may satisfy its initial evidentiary burden depends on whether that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden of proof on the given issue or issues at trial, then it can only meet its burden on summary judgment by presenting affirmative evidence showing the absence of a genuine issue of material fact — that is, facts that would entitle it to a directed verdict if not controverted at trial. Id. (citation omitted). Once the moving party makes such an affirmative showing, the burden shifts to the non-moving party to produce "significant, probative evidence demonstrating the existence of a triable issue of fact." Id. (citation omitted) (emphasis added).
For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16. First, the movant may simply show that there is an absence of evidence to support the non-movant's case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.
"The standard of review for cross-motions for summary judgment does not differ from the standard applied when only one party files a motion, but simply requires a determination of whether either of the parties deserves judgment as a matter of law on the facts that are not disputed." S. Pilot Ins. Co. v. CECS, Inc., No. 1:11-CV-3863-AT, 2014 WL 4977805, at *2 (N.D. Ga. Sept. 12, 2014) (citing Am. Bankers Ins. Group v. United States, 408 F.3d 1328, 1331 (11th Cir.2005)). "The Court must consider each motion on its own merits, resolving all reasonable inferences against the party whose motion is under consideration." Id. "The Eleventh Circuit has explained that `[c]ross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.'" Id. (quoting United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir.1984)). "Cross-motions may, however, be probative of the absence of a factual dispute where they reflect general agreement by the parties as to the controlling legal theories and material facts. Id. (quoting Oakley, 744 F2d at 1555-56).
The defendant, Kappler, operates a manufacturing plant in Guntersville, Alabama, which manufactures protective apparel. It employs approximately 90 "production technicians" at the Guntersville plant. On April 7, 2008, Kappler hired the plaintiff as one of those production technicians. Her supervisor during the time period leading up to and including her termination was Chris Gilreath.
The plant manager during the plaintiff's employment was Donna Haynes. Haynes "is in charge of the workforce there at the facility." (Doc. 30-1 at 5(90)). She describes herself as the "top management person" for production technicians working at the plant. (Doc. 30-1 at 5(10)).
At the commencement of her employment at Kappler, the plaintiff received a copy of Kappler's Employee Handbook which contained various company policies and procedures. (Doc. 30-3 at 76). One of those policies is Kappler's "progressive disciplinary policy," the steps of which, in order, normally
(Doc. 30-3 at 97-98). In her deposition, Haynes agreed that there was discretion in this area as well. As an example, she stated that while there would be no discretion for "stealing," "there would be some discretion as to whether [she] would [give] somebody discipline for," "profane or abusive language," "insubordination," or "interfering with work assignments of fellow workers." (Doc. 30-1 at 33(122-123)). The parties have not explained how this policy would, should, or does, work with the "progressive discipline policy."
The Employee Handbook provides:
(Doc. 30-3 at 101) (capitalization and bold in original).
A May 11, 2011, reminder notice, signed by employees of Kappler, including the plaintiff, states "[c]ell phones . . . cannot be in your work surface area [and] . . . should be stored out of sight." (Doc. 30-3 at 104). In her deposition, the plaintiff acknowledged that she signed this document, and that she has always followed this policy. (Doc. 30-3 at 10(33)).
A March 7, 2012, reminder notice, signed by employees of Kappler, including the plaintiff, states "[u]se of cell phones are [sic] not allowed during your working hours, only at breaks." (Doc. 30-3 at 103). In her deposition, the plaintiff acknowledged having read and signed this reminder too, and stated that she understood that to be the rule at Kappler. (Doc. 30-3 at 9(29)). Even though she acknowledged in her deposition that she would have to use her cell phone to text, the plaintiff stated that she did not understand the policy to prohibit texting. (Doc. 30-3 at 9(30-32)).
On October 25, 2012, the day after the plaintiff was terminated, Haynes issued a notice to employees which stated:
(Doc. 30-1 at 108) (emphasis in original).
Kappler's Employee Handbook contains an "Attendance Policy" which provides that employees who reach the following level of "unexcused" absences during a twelve month rolling period will be subject to warnings and terminations:
(Doc. 30-3 at 86) (emphasis in original).
The record includes an "attendance sheet" for the plaintiff which chronicles each of her tardies and absences, apparently for the entire time she was employed. (Doc. 30-1 at 80-89). It is in table format. The columns in the table explain, among other things, whether the particular incident was an occasion where the plaintiff was absent or tardy, the date of each absence or tardy, the number of hours during which the plaintiff was absent or tardy, a reason for the absence or tardy, and whether the absence or tardy was "excused." However, according to the defendant, absences which are denoted as "unexcused" in this document are
In her second affidavit, Haynes explained the coding system as follows:
(Doc. 34-8 at 3). Haynes stated that "[t]he only code number which is `counted against' an employee for absenteeism warning or excessive absentee purposes is an absence which is coded as a `4.'" (Doc. 34-8 at 3). She says that the other code numbers "only signify whether the leave was paid, unpaid, vacation, sickness, lack of work or FMLA. Although Kappler worked hard at classifying properly FMLA-qualified absences, as a practical matter, as long as the absence is not coded as a `4[,]' . . . the only relevance to the employee is whether the employee is paid for that absence." (Doc. 34-8 at 3-4). In light of Haynes's explanation, it is unclear why there is a column denoting whether the absence is "excused." The parties do not explain how the absence policy works, if at all, in conjunction with the progressive discipline policy and/or the "[c]ertain conduct, or disregard for the rules" policy.
Kappler provides qualified employees with both paid and unpaid leaves of absence under the FMLA. Kappler also provides paid sick leave and paid vacation time to all employees. Any employee who has qualified for FMLA leave has the option to use paid sick leave and paid vacation time in place of taking unpaid FMLA leave. Additionally, employees who have reached three years of service with Kappler are entitled to four weeks of paid FMLA leave.
If an employee qualifies for FMLA leave and wants to take time off for that purpose, they must indicate that they wish to take the time off as FMLA leave or communicate reasons for the absence within the scope of the FMLA certification. The absence is then "coded" as FMLA leave on the employee's attendance record. Any absences that are coded as FMLA leave are considered "excused" absences and are not counted against the employee under the attendance policy. (Doc. 30-5 at 9).
The plaintiff submitted her first FMLA request on March 29, 2011. It was completed by Dr. Paul Muratta, a pain management specialist at Southeastern Pain Management Center, and notes:
The form also indicates that the plaintiff's previous treatment for this condition occurred on January 26, February 10, February 24, and March 29, 2011. It states that the plaintiff's future appointments would be on "4/26/11, 5/25/11— office visit." (Doc. 30-3 at 123).
On July 6, 2012, Plaintiff submitted a second FMLA Certification request, signed by Dr. Norman McCoomer, also a pain management doctor. Dr. McCoomer's FMLA Certification was similar in most aspects to the first certification completed by Dr. Muratta, including the "no" box checked in response to whether Moon's medical condition required her to be absent during flare-ups. The certification also indicates:
The parties agree that the following chart, provided by defendant,
Of the plaintiff's absences noted above, only those on January 26, 2011 (a code "4") and December 14, 2011 (a code "4"), were counted against her for disciplinary purposes. In the plaintiff's attendance record, both were noted to be "unexcused." (Doc. 30-1 at 85).
Also, her absence on February 10, 2011, and her tardy on February 24, 2011, were also noted in her attendance report as "unexcused." (Doc. 30-1 at 85). The plaintiff's medical records reflect that she was seen at Southern Pain Management on January 26, and February 3, 10, and 24, of 2011. (Doc. 29-3 at 2). Defendant also marked Plaintiff's absences for March 8, April 20, and June 1, 2012, as unexcused in her attendance report. (Doc. 30-1 at 88). Again, the significance of these absences being "unexcused" is unclear.
During the one year period of her first certification, Dr. Muratta's records reflect that the plaintiff was given four (4) "procedural interventions" related to her back issues on April 26, 2011, May 4-5, 2011, June 27-28, 2011, and October 27-28, 2011.
On January 26, 2012, the plaintiff received a verbal warning for continual tardiness and unauthorized absences for the period of January 26, 2011, through January 26, 2012. (Doc. 30-3 at 118).
A "Personnel Action Form" dated October 24, 2012, appears in the record. (Doc. 30-2 at 129). The form states that the plaintiff was involuntarily terminated that date for: "Failure to follow work rules & policies. Her supervisor caught her on facebook @ 11:15 and . . . made her aware of the issue. 30 minutes later [her supervisor] caught her doing the same thing." (Doc. 30-3 at 129). In her deposition, in reference to this incident, the plaintiff stated that she was texting (not using facebook) that day, during work hours, at her work station, during work time. (Doc. 30-3 at 22(82)-23(85)). The plaintiff admits that her supervisor approached her and told her "to stop texting," but says that only after that incident did she know that texting was not allowed. (Doc. 30-2 at 23(87)). The plaintiff states that, after that first instance, she did not text again. (Doc. 30-3 at 23(88)-24(89)).
It is undisputed that defendant's employees are not terminated for a violation of the cell phone policy by itself. Haynes stated that the plaintiff's alleged cell phone use prior to October 24, 2012, had no bearing on the termination decision. Employees do not violate the defendant's rules by listening to music on portable listening devices such as an M-P3 player.
In her deposition, when asked whether Clark has a "disability," Haynes stated "Not that I know of." (Doc. 30-1 at 61(236)). Clark's attendance sheet reflects no absences or tardies coded with "32" or "33" for FMLA leave. (Doc. 36-3 at 2-3).
An Employee Disciplinary Report dated April 9, 2014, for Josh Clark, appears in the record. (Doc. 30-1 at 167). The report indicates that it is documenting a "Verbal Warning," for "Abuse or Destruction of Company Property." (Doc. 30-1 at 167). The "remarks" state: "Josh carved a girl[`]s name into the arm on a hot air machine. This is destruction of company property. Machine is valued at $35,000." (Doc. 30-1 at 167). The report is signed by his supervisor, Jo Ann Sims. (Doc. 30-1 at 167). Haynes signed this report as a "witness." (Doc. 30-1 at 167). In her deposition, Haynes agreed that this warning was for "basically, damaging property." (Doc. 30-1 at 61).
An "incident" concerning Clark apparently occurred on April 15, 2014, which is documented in the record, but for which, apparently, no official discipline was given. (Doc. 36-1 at 3). Jessica Bishop, a supervisor, wrote in a memo:
(Doc. 36-1 at 3). When asked about this incident in her deposition, the following exchange occurred:
(Doc. 30-1 at 61(233-234)).
An Employee Disciplinary Report dated April 22, 2014, for Josh Clark, appears in the record. (Doc. 36-1 at 4). The report indicates that it is a "First Written Warning," for "Insubordination" and "Poor Quality." (Doc. 36-1 at 4). The "remarks" state: "Refusing to follow direct work instructions from his supervisor." (Doc. 36-1 at 4). The report is signed by his supervisor, Jo Ann Sims. (Doc. 36-1 at 4). Haynes signed this report as a "witness." (Doc. 36-1 at 4). In her deposition, when asked if this was his "third incident but . . . second discipline," Haynes stated: "Second discipline, yes." (Doc. 30-1 at 61(235)).
Another Employee Discipline Report for Josh Clark, also dated April 22, 2014, appears in the record. (Doc. 36-1 at 5). The report indicates that it is a "Second Written Warning," for "Other: tobacco use." (Doc. 36-1 at 6). The "remarks" state: "Josh has been verbally warned about using tobacco on the sewing floor on 2 previous occasions by D. Haynes and David Wise. He has been caught spitting his tobacco into a garbage can on the sewing floor." (Doc. 36-1 at 6). The report is signed by his supervisor, Jo Ann Sims. (Doc. 36-1 at 6). Haynes signed this report as a "witness." (Doc. 36-1 at 6). In her deposition, Haynes agreed that he had gotten "two separate write-ups for two separate infractions both dated the same day." (Doc. 30-1 at 61(235)). She also agreed that Clark would have had four official "disciplines" "if he had been written up for that incident dated April 15th." (Doc. 30-1 at 61(235-236)).
A "Personnel Action Form" dated May 23, 2014, shows that Clark was terminated that day for "Refusing to follow work instructions, insubordination to supervisor Chris Gilreath." (Doc. 30-1 at 169). The document is signed by Clark's supervisor, Jo Ann Sims, and by Donna Haynes as "Supervisor/Manager." (Doc. 30-1 at 169).
At the time of her deposition, Haynes was not aware of whether Stanford had any "disability." (Doc. 30-1 at 58(223)). None of Stanford's absences or tardies were coded "32" or "33" for FMLA leave. (Doc. 36-4 at 2-3).
An Employee Disciplinary Report dated June 20, 2011, for Darlene Stanford, appears in the record. (Doc. 30-1 at 122). The report indicates that it documents a "Verbal Warning," for "Other." (Doc. 30-1 at 122). The "remarks" state: "Low production 75.86%." (Doc. 30-1 at 122). The report is signed by her supervisor, Chris Gilreath. (Doc. 30-1 at 122). Haynes signed this report as a "witness." (Doc. 30-1 at 122). Stanford received a "First Written Warning" for low productivity on September 14, 2011. (Doc. 30-1 at 123). On September 15, 2011, Stanford received a "Second Written Warning" and a suspension for: "Abuse or Destruction of Company Property," "Insubordination," and "Poor Quality." (Doc. 30-1 at 124). The "remarks" section of the report explains: "Darlene is being suspended for 1 week without pay after multiple warnings she continues to produce poor quality work. She has failed to follow direct work instructions. Quality audit rejected for 5th time." (Doc. 30-1 at 124). Written on the form is: "Return back to work 9-22-11, DH." (Doc. 30-1 at 124). The document is signed by her supervisor, Chris Gilreath. (Doc. 30-1 at 124). Haynes signed the document as a witness. (Doc. 30-1 at 124). In her deposition, Haynes recognized that this could have been multiple offenses, but that "they all tied together," so discretion was exercised to issue just one. (Doc. 30-1 at 57(217)).
A Personnel Action Form dated September 29, 2011, shows that Stanford was terminated on that date for "[p]oor quality, low productivity." (Doc. 30-1 at 125). Tamy Uline is listed as Stanford's supervisor on this form, but Uline has not signed the form. (Doc. 30-1 at 125). Haynes is listed as Stanford's "Supervisor/Manager," but Haynes did not sign this form either. (Doc. 30-1 at 125). A memo in the record states:
(Doc. 30-1 at 126). In her deposition, Haynes admitted that she could have terminated Stanford for initially failing to return to work on the right day. (Doc. 30-1 at 57(217-218)). Instead, she was suspended twice before ultimately being terminated after yet another offense.
Haynes testified at her deposition that she was not aware whether Cochran had a disability. (Doc. 30-1 at 58(223)). None of Cochran's attendance sheets reflect absences or tardies which were coded as "32" or "33" for FMLA leave. (Doc. 30-1 at 120-121).
An Employee Disciplinary Report dated June 26, 2012, for Brenda Cochran, appears in the record. (Doc. 30-1 at 112). The report indicates that it is documenting a "Verbal Warning," for "Poor quality and low productivity." (Doc. 30-1 at 112). The report is signed by her supervisor, Chris Gilreath. (Doc. 30-1 at 112). Haynes signed this report as a "witness." (Doc. 30-1 at 112). An Employee Disciplinary Report dated October 29, 2012, documents a "First Written Warning" for "55 hours of unexcused absences." (Doc. 30-1 at 113). The warning also states that "Breanna has a verbal for poor quality." (Doc. 30-1 at 113). The report is signed by her supervisor, Chris Gilreath. (Doc. 30-1 at 113). Haynes signed this report as a "witness." (Doc. 30-1 at 113). In her deposition, Haynes stated that this disciplinary report made the plaintiff "aware of two issues on that one date." (Doc. 30-1 at 53(204)). Haynes admitted that discretion was exercised to give her only one write-up instead of two. (Doc. 30-1 at 54(205)).
An Employee Disciplinary Report dated November 9, 2012, for Cochran, appears in the record. (Doc. 30-1 at 114). The report documents a "Second Written Warning" for "Continual Tardiness" and "Unauthorized Absences." (Doc. 30-1 at 114). The report notes that Cochran had "accumulated 91.66 unexcused absence hours." (Doc. 30-1 at 114). The report is signed by her supervisor, Chris Gilreath. (Doc. 30-1 at 114). Haynes signed this report as a "witness." (Doc. 30-1 at 114).
A February 3, 2012, Personnel Action Report shows that Cochran was terminated that date for "poor attendance." (Doc. 30-1 at 118). It is signed by Donna Haynes as Cochran's "Supervisor/Manager." (Doc. 30-1 at 118). Chris Gilreath is listed as Cochran's supervisor-but she did not sign the form. (Doc. 30-1 at 118).
Haynes testified at her deposition that she was not aware whether Golden had a disability. (Doc. 30-1 at58(223)). Golden's attendance sheet reflects no absences or tardies were coded "32" or "33" for FMLA leave. (Doc. 30-1 at 136-137).
Golden received a "Verbal Warning" for attendance on March 4, 2013 ("51 hours unexcused") (doc. 30-1 at 127), a first written warning for attendance on March 7, 2013 ("69 unexcused hours absenteeism") (doc. 30-1 at 128), and a "Second Written Warning" for attendance on May 2, 2013 ("84 [hours] of unexcused absences") (doc. 30-1 at 129). Golden's attendance report shows that she thereafter missed work days on May 21, 22, and 23, 2013, which were coded as "ABSENCE UNPAID—vacation & holidays off unpaid, LOA." (Doc. 30-1 at 131). These counted as "excused" absences. If they had not been, the plaintiff could have been terminated for more than 100 unexcused hours in a 12 month period. Haynes terminated Golden on May 24, 2013, for "[r]efusing to follow work instructions." (Doc. 30-1 at 133).
Haynes stated in her deposition that she was not aware whether Gibbs had any sort of disability. (Doc. 30-1 at 58(224)). Gibbs's attendance sheet reflects no absences or tardies which were ever coded "32" or "33"for FMLA leave. (Doc. 36-5 at 2-4).
On May 19, 2011, Gibbs received a verbal warning from Becky King for "eating on floor." (Doc. 30-1 at 138). However, no Employee Discipline Report appears in the file regarding this incident. The record contains an employee discipline report for Ms. Gibbs dated August 22, 2011. (Doc. 30-1 at 102). It indicates that it is a "Second Written Warning," and the "remarks" section explains that "Pam continues to use her cell phone on the sewing floor after repeated warnings from her supervisor." (Doc. 30-1 at 102). The document is signed by Gilreath as her "supervisor," and Haynes as a "witness." (Doc. 30-1 at 139). In her deposition, Haynes agreed that, based on the use of the phrase "continues to use," Gibbs would not have received any discipline the first time she was seen using her cell phone. (Doc. 30-1 at 38(142-143)). There is no Employee Discipline Report in the record which documents a "First Written Warning" of any kind concerning Gibbs.
A Personnel Action Report in the record reflects that Gibbs was terminated on January 18, 2012 for "[l]ow productivity and poor quality." (Doc. 30-1 at 141). This document is signed by Gilreath, who is listed as Gibb's "Supervisor," and by Haynes, as "Supervisor/Manager." (Doc. 30-1 at 141).
Haynes testified in her deposition that she was unaware whether Rozanski has a disability. (Doc. 30-1 at 62(237)). None of her attendance sheets reflect a code "32" or "33" for any absence or tardy that was for FMLA leave. (Doc. 30-1 at 195-197).
Rozanski received a verbal warning on June 5, 2013, for "Continual Tardiness" and "Unauthorized Absences." (Doc. 30-1 at 191). The "remarks" section of the Employee Discipline Report issued on that day states: "Vickie has 50.46 unexcused absent hours. Per the policy a verbal warning is due." (Doc. 30-1 at 191). It is signed by Jessica Bishop as her "Supervisor." (Doc. 30-1 at 191). She received a "First Written Warning" on June 25, 2013, for "Continual Tardiness" and "Unauthorized Absences." (Doc. 30-1 at 193). The remarks section of the Employee Discipline Report issued that date states: "Vicki[e] has 68.48 unexcused hours. . . . Per policy this is a 1st written warning." (Doc. 30-1 at 193). It is signed by Bishop as her "Supervisor," and Haynes as a witness. (Doc. 30-1 at 193).
Rozanski received a "Second Written Warning" on August 6, 2013, for "Continual Tardiness," and "Unauthorized Absences" after having "87.82 unexcused hours" of absences. (Doc. 30-1 at 194). The Employee Discipline Report documenting the warning was signed by Bishop as "Supervisor," and Haynes as "Witness." (Doc. 30-1 at 194). Thereafter, Rozanski had unexcused absences on August 8, 12, 13, 14, 15, and 16. (Doc. 30 at 197). The file does not indicate whether she has received any future warnings.
The record contains an Employee Disciplinary Report for Avery Thackerson dated October 4, 2013. (Doc. 30-1 at 103). It indicates that it is a verbal warning for "[c]ontinued use of personal cell phone on blowing floor during work hours." (Doc. 30-1 at 103). It is signed only by Haynes as Thackerson's "supervisor." (Doc. 30-1 at 103). Haynes agreed in her deposition that the use of the phrase "continued use," meant that Thackerson was not disciplined the first time that she was seen using her phone. (Doc. 30-1 at 38(144)-39(145)).
Defendant's Human Resources Manager, Becky King, "spoke with Donna Haynes about the [FMLA] paperwork being received and that it was approved. . . ." (Doc. 30-4 at 10(36)-11(37)). Haynes had knowledge of the plaintiff's FMLA leaves. Haynes is responsible for coding the employee's attendance. The plaintiff's attendance sheet shows she was coded for FMLA absences on August 3, 2012 and October 17, 2012. (Doc. 30-1 at 89). Haynes stated either she or the plaintiff's supervisor would have coded the attendance sheet for October 17, 2012. Haynes remembers that the plaintiff had "an emergency room visit." Gilreath had general knowledge of the plaintiff's FMLA usage. Gilreath has knowledge of Defendant's code for FMLA usage under its attendance system. Gilreath denies having knowledge that the plaintiff had a medical appointment the day she was terminated. Gilreath later testified that she does not remember if the plaintiff told her that she had a physical therapist appointment the day she was fired. Gilreath stated that if the plaintiff was going to a healthcare professional, the plaintiff would tell her where she was going and why.
Defendant's Human Resources Manager is Rebecca ("Becky") King. Defendant's Human Resources Manager decides if FMLA leave is approved. Defendant's 30(b)(6) representative confirmed that the plaintiff's "July 6" leave was approved. King testified that she "spoke with Donna Haynes about [the plaintiff's] paperwork being received and that it was approved. . . ." (Doc. 29-13 at 8(27)).
Aside from the Personnel Action Form describing the plaintiff's termination, Haynes kept no notes or documents regarding the plaintiff's termination meeting.
Defendant's response submitted to the Equal Employment Opportunity Commission stated "Ms. Moon's employment with Kappler was terminated after she repeatedly and intentionally violated Kappler's prohibition against the use of cell phone while working. It was also her fourth disciplinary warning within 12 months, thus further warranting her termination." (Doc. 36-2 at 2).
Haynes testified that Defendant's company policies are meant to be applied consistently throughout the workforce.
The defendant does not dispute that it was on notice of the plaintiff's need for intermittent FMLA leave. Defendant's 30(b)(6) representative confirmed Defendant was on notice that the plaintiff's "July 6" leave did not have a set ending time.
During the 12-month period prior to June 2012, Defendant employed the plaintiff for at least 1,250 hours of service. Defendant employs fifty (50) or more persons for each working day during each of the 20 or more calendar workweeks in the current or preceding calendar year of the plaintiff's June 2012 leave. During the week of October 24, 2012, Defendant employed fifty or more employees, worked within 75 miles of the location where the plaintiff worked. Defendant is an entity subject to suit under 28 U.S.C. § 1331 and 29 U.S.C. § 2617(a)(2). Defendant employed at least fifty (50) persons for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. Defendant employed these fifty (50) employees within 75 miles of the plaintiff's worksite.
"The FMLA grants an eligible employee the right to take up to 12 workweeks of unpaid leave annually for any one or more of several reasons, including `[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee.'" Hurlbert v. St. Mary's Health Care Sys., Inc., 439 F.3d 1286, 1293 (11th Cir. 2006) (quoting 29 U.S.C. § 2612(a)(1)(D)). The Act creates a private right of action to seek equitable relief and money damages against employers who "interfere with, restrain, or deny the exercise of or the attempt to exercise" FMLA rights. 29 U.S.C. §§ 2615(a)(1), 2617(a).
The Eleventh Circuit has recognized that § 2615(a) creates two types of 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, 439 F.3d at 1293 (quoting Strickland v. Water Works and Sewer Bd. of the City of Birmingham, 239 F.3d 1199, 1206 (11th Cir.2001)). In this case, the plaintiff claims both an FMLA interference and an FMLA retaliation claim.
As noted previously, both parties move for summary judgment on this claim. "To establish an interference claim, `an employee need only demonstrate by a preponderance of the evidence that he was entitled to the benefit denied.' . . . The employee need not allege that his employer intended to deny the benefit—`the employer's motives are irrelevant.'" Hurlbert, 439 F.3d at 1293 (quoting Strickland 239 F.3d at 1207, 1208)); see also, Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1241 (11th Cir. 2010) ("To succeed under [an] interference theory, [the plaintiff] must demonstrate only that she was denied a benefit to which she was entitled under the FMLA.") (internal quotations omitted).
The plaintiff claims that she had a right to take FMLA leave on October 24, 2012, to attend a medical appointment, and return to work the next day. She argues only that the defendant interfered with her right to take her leave, that day, by firing her on October 24, 2012. (Doc. 28 at 19-20; see also doc. 28 at 25 ("Defendant cannot dispute [p]laintiff was to commence FMLA leave on October 24, 2012, but prior to commencing such leave [d]efendant terminated [p]laintiff's employment," and doc. 37 at 11 ("Plaintiff had the right to commence leave on October 24, 2012 and return the next day.").
Apparently in an attempt to demonstrate that she was "entitled to the [FMLA leave]" Hurlbert, 439 F.3d at 1293, the plaintiff devotes a substantial portion of her brief in support of her motion for summary judgment to: whether she is an eligible employee under the FMLA (doc. 28 at 11-12); whether the defendant is an eligible employer under the FMLA (doc. 28 at 12-13) whether she was entitled to FMLA leave (doc. 28 at 13-16); and whether the plaintiff provided sufficient notice of FMLA leave (doc. 28 at 16-18). The defendant admits that it is subject to the FMLA, that the plaintiff was covered under the FMLA, and that the plaintiff was entitled to leave under the FMLA. (Doc. 33 at 22). According, summary judgment will be granted to the plaintiff on the issue of whether she was entitled to FMLA leave on October 24, 2012.
Despite admitting the plaintiff's entitlement to leave, the defendant does not admit that it interfered with her right to take leave that day. It argues, correctly, that the plaintiff is not immune from termination simply because she was FMLA eligible. (Doc. 33 at 24). The taking of FMLA leave must be the "proximate," not "but for," cause of the employer's actions. Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1241, 43 (11th Cir. 2010). "An employer can avoid liability if it can demonstrate that it refused to provide the benefit for a reason wholly unrelated to the FMLA leave." Strickland v. Water Works and Sewer Bd., 239 F.3d 1199, 1208 (11th Cir.2001); see also, Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1236 (11th Cir.2010) ("[T]he right to commence FMLA leave is not absolute, and that an employee can be dismissed, preventing her from exercising her right to commence FMLA leave, without thereby violating the FMLA, if the employee would have been dismissed regardless of any request for FMLA leave."); Leach v. State Farm Mut. Auto. Ins. Co., 431 F. App'x 771, 776 (11th Cir. 2011) ("[I]f, the employee alleges that the employer denied the employee the right to reinstatement following FMLA leave, the employer has an opportunity to demonstrate it would have discharged the employee even had she not been on FMLA leave.") (internal quotations omitted); Bradley v. Army Fleet Support, LLC, No. 1:13CV308-WHA, 2014 WL 5307470, at *4 (M.D. Ala. Oct. 16, 2014) (Albritton, J.) (same); Hawkins v. BBVA Compass Bancshares, Inc., No. 2:12-CV-03922-RDP, 2014 WL 4715865, at *16 (N.D. Ala. Sept. 22, 2014) (Proctor, J.) (appeal pending) (same); Howard v. U.S. Steel Corp., No. 2:11-CV-01010-KOB, 2014 WL 1042968, at *24 (N.D. Ala. Mar. 14, 2014) (Bowdre, J.) ("If an employer takes an adverse action that has the effect of preventing an employee from exercising an FMLA right, including
The defendant argues that its reason for terminating the plaintiff before she took her FMLA leave that day was that she received her fourth disciplinary violation within 12 months. The following "Employee Disciplinary Reports" regarding the plaintiff appear in the record:
The defendant argues that, because none of these incidents of discipline were related to the plaintiff's FMLA leave, it did not "interfere" with her leave when it terminated her. (Doc. 33 at 24). The plaintiff makes several arguments why the real reason she was terminated was actually because she requested and took FMLA leave.
This termination is also the basis for the plaintiff's FMLA retaliation claim. As one judge in this district has recently observed, under these circumstances "[the] [p]laintiff's FMLA claims essentially merge into one [retaliation] claim." Hawkins v. BBVA Compass Bancshares, Inc., No. 2:12-CV-03922-RDP, 2014 WL 4715865, at *16 (N.D. Ala. Sept. 22, 2014) (Proctor, J.). The undersigned agrees. The pretext analysis done in relation to the retaliation claim will effectively determine whether the plaintiff was fired "for a reason wholly unrelated to the FMLA leave." Strickland, 239 F.3d at 1208.
For the reasons stated in the next section, the court determines that there is a genuine issue of material fact as to whether the defendant's stated reasons for the termination are legitimate non leave based reasons. The court also determines that there is a genuine issue of material fact whether defendant's reasons are pretextual and defendant in fact terminated the plaintiff for requesting family medical leave. Accordingly, summary judgment will be denied as to both parties' cross motions on this claim.
The defendant moves for summary judgment on this claim. As noted, the plaintiff claims that her termination was in retaliation for using FMLA leave. The plaintiff's case is based solely on circumstantial evidence. The Eleventh Circuit has stated:
Strickland, 239 F.3d at 1207; Brungart v. BellSouth Telecommunications, Inc., 231 F.3d 791, 798 (11th Cir. 2000) (same).
Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001).
The defendant contends only that the plaintiff cannot make out a prima facie case of retaliation "because she cannot establish the casual connection element of her case — that Kappler terminated her for engaging in protected activity." (Doc. 30 at 24).
In Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1243 (11th Cir. 2010), the Eleventh Circuit noted that close temporal proximity between FMLA leave and termination "is more than sufficient to create a genuine issue of material fact of causal connection" for purposes of an FMLA retaliation claim. The broadest reading of the facts reflects that the plaintiff was to take FMLA leave on the very day she was fired. There is a genuine issue of material fact as to causation.
There being at least a genuine issue of material fact as to whether the plaintiff can make out a prima facie case, Kappler must articulate a legitimate, non-retaliatory reason for the challenged employment action. Olmsted, 141 F.3d at 1460. First, however, the plaintiff argues that the defendant has waived its right to articulate these reasons.
The plaintiff first argues that the alleged legitimate non-retaliatory reasons for her termination are affirmative defenses that the defendant was required to plead in its answer, but did not. (Doc. 28 at 21)."[A] defendant intending to assert an affirmative defense must raise it in a responsive pleading, and failure to do so typically results in a waiver of the defense." Edwards v. Fulton Cnty., Ga., 509 F. App'x 882, 887 (11th Cir. 2013) (citing Am. Nat'l Bank of Jacksonville v. FDIC, 710 F.2d 1528, 1537 (11th Cir.1983)).
Assuming that the defendant's stated reason for the plaintiff's termination is required to be raised in the defendant's Answer, the defendant did so. Paragraph 34 of the Complaint states: "[d]efendant willfully and intentionally violated the FMLA by interfering with [p]laintiff's rights under that act." (Doc. 1 at 6). In its Answer, in response to paragraph 34, Kappler states: "[d]efendant denies each and every allegation contained within [p]aragraph 34 of [p]laintiff's Complaint." (Doc. 8 at 7). Paragraph 35 of the Complaint states: "[d]efendant terminated [p]laintiff's employment for the stated reason of [p]laintiff's health." (Doc. 1 at 6). In response, Kappler answered: "[d]efendant denies each and every allegation contained within [p]aragraph 35 of [p]laintiff's Complaint." (Doc. 8 at 7). Further, Kappler's tenth affirmative defense in its Answer stated that: "Even if intentional discrimination and retaliation were motivating factors in an employment decision regarding [p]laintiff, which [d]efendant denies, [d]efendant would have taken the same action in the absence of any impermissible factor." (Doc. 8 at 12). Kappler's twelfth affirmative defense stated that: "There is no causal link, factual or proximate, between [d]efendant's alleged acts or omissions and [p]laintiff's alleged injuries or damages." (Doc. 8 at 13). Both of these affirmative defenses, along with the denials, support Kappler's position that its reasons for terminating the plaintiff were lawful and wholly unrelated to her FMLA leave. There is no need to state specifically in the Answer
Further, even if these defenses were not properly raised under Rule 8(c) of the Federal Rules of Civil Procedure, "a defendant does not waive an affirmative defense if the earlier omission from responsive pleadings does not prejudice the plaintiff." Edwards v. Fulton Cnty., Ga., 509 F. App'x 882, 887 (11th Cir. 2013) (citing Proctor v. Fluor Enters., Inc., 494 F.3d 1337, 1350 (11th Cir.2007)). The plaintiff has shown no prejudice.
In the section of its initial motion for summary judgment brief entitled "Defendant Has Offered A Legitimate Non-Retaliatory Reason For Plaintiff's Termination" the defendant states: "Kappler terminated [p]laintiff because she received four work-rule disciplinary violations within a twelve month rolling period." (Doc. 30 at 27). Similarly, in other areas of the defendant's submissions, it consistently states:
Confusingly however, in its initial brief in support of its motion for summary judgment, just a few lines after first stating that "Kappler terminated [p]laintiff because she received four work-rule disciplinary violations within a twelve month rolling period" (doc. 30 at 27), the defendant writes:
(Doc. 30 at 27-28) (emphasis added). The plaintiff argues these statements, and other similar statements by the defendant, amount to "confusing" and "inconsistent" reasons for the plaintiff's termination. (Doc. 35 at 34; doc. 37 at 4). The defendant makes no attempt to address the apparent discrepancy.
The court finds that the statements at document 30, pages 27-28, can only be construed as
The defendant having articulated legitimate non-discriminatory reasons for the termination, the burden thus shifts again to the plaintiff to prove that the reasons provided by Kappler are a pretext for prohibited, retaliatory conduct. Olmsted, 141 F.3d at 1460.
To establish pretext, the plaintiff has to demonstrate
Brooks, 446 F.3d at 1162-63. Importantly, "[a] reason is not pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason." Id. at 1163.
The plaintiff points to Haynes's testimony in her deposition where she admitted that employees "don't get fired for violation of the cell phone policy by itself." (Doc. 30-1 at 39(145)). The plaintiff has rebutted "violation of the cell policy alone" as being the reason for her termination.
There is
Indeed, as far as the court can tell from the record, the defendant's brief in support of its motion for summary judgment is the first instance in which this reason has ever been cited. See, e.g., Hinson, 231 F.3d at 831 (noting that an employer's raising complaint for the first time in response to an EEOC Charge is suspect); see also, Hurlbert v. St. Mary's Health Care Sys., Inc., 439 F.3d 1286, 1298-99 (11th Cir. 2006) ("We have recognized that an employer's failure to articulate clearly and consistently the reason for an employee's discharge may serve as evidence of pretext.... Here, the corrective counseling statement and separation notice documenting Hurlbert's termination make no reference to his disciplinary status or job performance, and identify the sole reason for his termination as an `inability to pass the competency review' or `[f]ailure to meet competency requirements.' Furthermore, Jeff English testified that he advised Butler to follow through with termination because of Hurlbert's `borderline insubordinate behavior' in walking out of the September 6th meeting with her, yet no charge of insubordination appears in the foregoing termination documents.").
As if this were not enough to find pretext, there is evidence that similarly situated employees Pam Gibbs (doc. 35 at 29, 39) and Avery Thackerson (doc. 35 at 29), were treated differently than the plaintiff. Thackerson received a warning for "[c]ontinued use of personal cell phone on blowing floor during work hours." (Doc. 30-1 at 103). Haynes agreed in her deposition that the use of the phrase "continued use," meant that Thackerson was not disciplined the first time that he was seen using his phone. (Doc. 30-1 at 38(144)-39(145)). Haynes also indicated in her deposition that Thackson was given an "oral" warning regarding the policy previously. (Doc. 30-1 at 39 (145)). Gibbs received a warning which stated that she "continues to use her cell phone on the sewing floor after repeated warnings from her supervisor." (Doc. 30-1 at 102). In her deposition, Haynes agreed that, based on the use of the phrase "continues to use," Gibbs would not have received any discipline the first time she was seen using her cell phone. (Doc. 30-1 at 38(142-143)). These incidents appear to the court to be substantially similar in all relevant respects to the discipline the plaintiff received for violation of the cell phone policy. Gibbs and Thackerson, however, were not fired for insubordination. The plaintiff has rebutted this proffered reason for her termination.
The plaintiff first argues that the cell phone use violation should not have been the plaintiff's fourth violation because the January 26, 2012, verbal warning, for unauthorized absences, was not merited. (Doc. 37 at 4).
It is unclear to the court what difference recharacterizing either of these absences would make. According to the first warning issued by the defendant, the plaintiff had a total of 88.57 hours of unexcused absences. (Doc. 30-3 at 129). As noted above, the defendant's attendance policy calls for the following progressive discipline:
(Doc. 30-3 at 86) (bold typeface in original). The two absences at issue account for a total of 9.58 hours—3.6 hours on January 26, 2011, and 5.98 hours on December 14, 2011. (Doc. 30-1 at 85, 87). Assuming that the two absences were not counted against the plaintiff, she would still have 78.77 hours of unexcused absences remaining. That would
Based on the foregoing, there is no need to consider the other arguments in made by the parties, including:
Close temporal proximity between a request for leave and termination is evidence of pretext. Hurlbert v. St. Mary's Health Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006). In this case, under the broadest reading of the facts, the plaintiff was to take FMLA leave
In particular the plaintiff cites several comparators who were treated more favorably than she. It has been noted:
Walker v. St. Joseph's/Candler Health Sys., Inc., 506 F. App'x 886, 889 (11th Cir. 2013); see also, Jackson v. Agency for Persons with Disabilities Florida, No. 14-12650, 2015 WL 1637587, at *2 (11th Cir. Apr. 14, 2015) (unpublished) ("Where an employer's proffered reason for termination is the violation of a workplace rule, we have held that explanation to be arguably pretextual when a plaintiff can submit evidence that: (1) she did not violate the cited work rule; or (2) if she did violate the rule, other employees outside the protected class, who engaged in similar acts, were not similarly treated.") (internal quotations and citations omitted). "`In determining whether employees are similarly situated for purposes of establishing a prima facie case, it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways.'" King v. Piggly Wiggly Alabama Distribution Co., 929 F.Supp.2d 1215, 1222 (N.D. Ala. 2013) (Hopkins, J.)" (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997) (emphasis in original). While there has been some dispute as to what the phrase "similarly situated" means in this context,
The plaintiff cites to the following comparators: Josh Clark (doc. 35 at 35-36); Darlene Stanford (doc. 35 at 36-37); Breanna Cochran (doc. 35 at 37-38); Pam Gibbs (doc. 35 at 29, 39); and Avery Thackerson (doc. 35 at 29).
For example, with Josh Clark the plaintiff argues that "[a] jury can infer Clark received a `free pass' on discipline. He was not fired for four incidents within twelve months.
Finally, and most telling, are Pam Gibbs (doc. 35 at 29, 39) and Avery Thackerson (doc. 35 at 29). The plaintiff argues:
(Doc. 35 at 29). She also alleges that she "received no such previous warning under the alleged `cell phone' policy." (Doc. 37 at 10, n. 5). The plaintiff admits that she was texting (not using Facebook) that day, during work hours, at her work station, and during work time. (Doc. 30-3 at 22(82)-23(85)). The plaintiff admits that her supervisor approached her and told her "to stop texting," but says that only after that incident did she know that texting was not allowed. (Doc. 30-2 at 23(87)). Specifically, she stated: "On the day that Chris come [sic] up to me and told me to quit texting was the day that I knew that it wasn't allowed." (Doc. 30-3 at 23(22)). The plaintiff states that after that first instance she did not text again. (Doc. 30-3 at 23(88)-24(89)).
Finally, it has never been explained how all of the defendant's discipline policies are expected to work together, if at all. A jury could infer that the combination of all of the defendant's policies, and the haphazard way in which they have been applied, especially the absentee policy, is a pretext for discrimination.
The court determines that there is a genuine issue of material fact as to whether the defendant's stated reasons for the plaintiff's termination were actually a pretext for terminating her for requesting and taking FMLA leave.
The defendant moves for summary judgment on the ADA claim.
In Count Three, the plaintfif alleges only that her termination was because of her disability, in violation of the ADA. (Doc. 1 at 9).
Jarvela v. Crete Carrier Corp., 776 F.3d 822, 828 (11th Cir. 2015). The defendant argues (although in an underdeveloped fashion) that the plaintiff cannot prove that her termination was "because of" her disability. Referring back to earlier portions of its brief, the defendant repeats its confusing argument as to the actual reason for the plaintiff's termination — which the undersigned has already analyzed as three alternative reasons for the plaintiff's termination. Specifically, defendant writes:
(Doc. 30 at 30).
The court notes that the same McDonnell Douglas burden shifting framework that the court earlier in this opinion applied to plaintiff's FMLA retaliation claim also applies to her ADA retaliation claim. Wofsy v. Palmshores Ret. Cmty., 285 F. App'x 631, 634 (11th Cir. 2008). And, for the same reasons discussed above in the section of this opinion relating to the plaintiff's FMLA retaliation claim, the court finds that genuine issues of material fact exist as to whether the defendant retaliated against the plaintiff in violation of the ADA.
For the reasons set out above (regarding the arguments as to which issue was actually joined by the parties' briefs), the court finds that genuine issues of material fact exist such that both motions for summary judgment are due to be, and hereby are,
(Doc. 1 at 7). In none of her briefs does the plaintiff argue the first two grounds above. "[G]rounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned." Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995).
(Doc. 37 at 11, n. 6). This confusing argument is without merit. At the end of the day, no matter when it was raised, the alleged affirmative defense should be allowed in the absence of a showing of prejudice to the plaintiff.
Parten v. Alabama Dep't of Tourism, No. 2:13CV944 MHT, 2015 WL 1781588, at *6, n. 6 (M.D. Ala. Apr. 20, 2015) (Thompson, J.); see also, Jackson v. Agency for Persons with Disabilities Florida, No. 14-12650, 2015 WL 1637587, at *2 (11th Cir. Apr. 14, 2015) (unpublished) (citing Burke-Fowler v. Orange Cnty., 447 F.3d 1319, 1323 & n. 2 (11th Cir.2006)) ("In instances where the plaintiff is disciplined for misconduct, it is the plaintiff's burden to show other employees were engaged in `nearly identical' conduct and yet were treated more favorably."); Walker v. St. Joseph's/Candler Health Sys., Inc., 506 F. App'x 886, 889 (11th Cir. 2013) ("[T]he quantity and quality of the comparator's misconduct [must] be nearly identical to prevent courts from second-guessing employers' reasonable decisions and confusing apples with oranges.")
(Doc. 39 at 16). These sentences seem to actually acknowledge that the comparators were warned, but fail to explain why
(Doc. 30-1 at 108) (emphasis in original). While "use" of cellphones in the work are had been prohibited previously, this was the first explicit statement prohibiting texting during work hours. There is a dispute as to whether "use" meant "texting" or "calling."
