MEMORANDUM OPINION

JOHN E. OTT, Magistrate Judge.

Plaintiff, Tracy Sanders, an African American, asserts claims against her former employer, Benjamin Moore & Co. ("Benjamin Moore"), for racial discrimination and retaliation pursuant to 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq. ("Title VII"); interference and retaliation pursuant to the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. ("FMLA"); a retaliatory hostile work environment pursuant to Title VII, § 1981, the FMLA, and the Occupational Safety and Health Act of 1970, 84 Stat. 1590, as amended, 29 U.S.C. § 651 et seq.; and a supplemental state-law claim, asserted under 28 U.S.C. § 1367, for negligent or wanton supervision.1

Benjamin Moore asserts counterclaims against plaintiff for constructive trust, equitable lien, restitution, equitable offset, or other equitable relief pursuant to 29 U.S.C. § 1132(a)(3); unjust enrichment pursuant to federal common law; and attorneys fees and costs pursuant to 29 U.S.C. § 1132(g).

The case currently is before the court on Benjamin Moore's motion for summary judgment on all claims, including its counterclaims,2 and motion to strike plaintiff's evidentiary submission in opposition to summary judgment.3 Upon consideration of the pleadings, briefs, and evidentiary submissions, this court concludes that the motion to strike is due to be denied, and the motion for summary judgment is due to be granted, but only in part.

I. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 provides that a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In other words, summary judgment is proper "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the non-moving party are not unqualified, however. "[A]n inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation." Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,

Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (asking "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law").

II. SUMMARY OF FACTS4

Benjamin Moore is a national manufacturer and retailer of high-quality paints and coatings,5 operating five paint manufacturing facilities in the United States and one manufacturing facility in Canada.6 The company maintains an Equal Employment Opportunity Policy and a zero tolerance harassment and retaliation policy,7 as well as an ADA policy which requires employees who wish to make a request for accommodation to cooperate with Human Resources in arriving upon a reasonable accommodation.8 At all relevant times, Elizabeth Edwards, an African American, was Benjamin Moore's Human Resources Director.9

Benjamin Moore hired plaintiff on October 8, 2007, as a Controls Engineer at its Pell City, Alabama facility.10 The Benjamin Moore Manufacturing Payroll Authorization Request Form indicated that plaintiff was originally scheduled 86.67 hours per every semi-monthly pay cycle, with no other hours listed.11 On-call duties were not in plaintiff's original job description.12

At the time of plaintiff's hire, there were four other engineers working in the "Controls Group," a subset of Benjamin Moore's Engineering Department.13 Plaintiff was the only engineer at the Pell City facility,14 and her primary responsibility was to program controls that affected the dispensing of paint into Benjamin Moore's manufacturing system.15 As a Controls Engineer, plaintiff did not have to be physically present at the plant to perform her job.16 She initially reported to the Engineering Department Manager, Art Mengon.17 Mengon permitted plaintiff to work under a Flexible Work Arrangement ("FWA"), whereby plaintiff could work from home at all times.18

At the beginning of 2008, plaintiff received an overall performance rating of "3 — Meeting All Expectations" in her 2007 Performance Review Form, and Mengon noted that plaintiff had "[g]ood, positive feedback regarding [her] interactions with others," and that "[p]ersonal observations, as well as from limited feedback, indicate [plaintiff] will be a solid addition to our electrical & controls group. While her short time with us in 2007 was too brief to substantially impact the business, her preparation has been as expected to contribute significantly through the next year."19

At some point in 2008, Art Mengon left Benjamin Moore, and Jesse Singh became plaintiff's direct manager.20 Thereafter, Benjamin Moore experienced a significant downturn in business, forcing the company to implement a reduction-in-force ("RIF").21 Some employees left Benjamin Moore, and the company terminated others, resulting in the Controls Group being reduced to one Controls Engineer — plaintiff.22 Plaintiff volunteered to take on additional work "because there was no one else to do the work."23 Her role expanded to include project management, system back-ups, contractor and automation file management, and automation support programming.24 Benjamin Moore also required plaintiff to provide 24/7 on-call, after-hours support for all of the company's facilities.25 Essentially, this meant that in the event that production lines malfunctioned at any of the five manufacturing facilities, plaintiff was required to be available to resolve problems remotely.26 Most after-hours emergency calls were resolved quickly by Gideon John, an IT employee, because they involved first-level IT technical support, but plaintiff was responsible for more technical malfunctions that could not be resolved by John.27 Plaintiff was the only engineer to provide on-call support after the RIF because she was the only controls engineer, and process engineers did not support plant equipment.28

At the beginning of 2009, plaintiff received an overall performance rating of "3 — Meeting All Expectations" in her 2008 Performance Review Form, and Singh noted that plaintiff had "cordial rapport and positive demeanor within the Engineering group and those within Pell City and Mesquite," that she was "an individual with initiative and drive," and that Singh expected Benjamin Moore to recognize plaintiff "as our controls expert and will seek [her] involvement in project work, troubleshooting plant issues and providing direction for our controls opportunities looking to our future."29 Joseph Dotzman, a Caucasian and Benjamin Moore's Manufacturing Director, included the following comments in plaintiff's 2008 Performance Review:

Doc. no. 66-3 (Exhibits to Plaintiff Deposition), at ECF 38. Plaintiff added the following comments to her 2008 performance review:

Id. at ECF 38-39.

In April 2009, the following email correspondence occurred between plaintiff, Singh, and Dotzman:

Doc. no. 66-12 (Exhibits to Pallozzi Deposition), at ECF 38-41.30 Later that month, Theresa Pallozzi, a Caucasian Human Resources Business Partner, was assigned to handle the HR functions of the Controls Group, which, at the time, still only contained plaintiff.31

In May 2009, plaintiff began reporting to Dennis Recca, Benjamin Moore's Lead Engineer.32 Recca, who was based in Flanders, New Jersey, managed the entire Engineering Department and was responsible for operations at all six of Benjamin Moore's manufacturing facilities.33 Recca did not get involved in the day-to-day operations that plaintiff performed, but he did attend weekly telephonic meetings with plaintiff, and did periodic monthly updates for project progress.34 Recca also required all engineers he supervised to keep an updated calendar regarding the projects assigned, except when the employee was in attendance at their regular work location, and he regularly reviewed employee calendars.35 Recca often reviewed plaintiff's calendar entries and found that plaintiff did not include her daily projects on her calendar for the times she worked from home.36 As a result, Recca emailed plaintiff multiple times and requested that she update her calendar to include the projects she was working on from home.37 For example, Recca sent plaintiff the following email on June 15, 2009:

Doc. no. 66-4 (Exhibits to Plaintiff Deposition), at ECF 20.

Plaintiff sent the following email to Edwards and Pallozzi on June 29, 2009:

Doc. no. 66-11 (Exhibits to Edwards Deposition), at ECF 14-16.

On July 22, 2009, plaintiff complained internally with Benjamin Moore's Human Resources Department that she was being harassed by her manager, Recca.38 Plaintiff contended that Recca harassed her by isolating her and leaving her out of important, imperative communications and project meetings, and putting her under heightened scrutiny.39 Specifically, Recca did not communicate with plaintiff, and instead talked to the plant maintenance manager at the Pell City facility about project statuses as though he were the Controls Engineer, although he did talk to the Caucasian engineers that were in New Jersey.40 In response to the question, "What made you believe that [the harassment] was because of your race," plaintiff answered:

Doc. no. 66-1 (Plaintiff Deposition), at 117-18. Plaintiff noted that she was never subjected to any racial epithets or racially derogatory statements.41

Plaintiff also frequently complained about her workload, asking Recca if other employees could assist her.42 To accommodate those complaints, Human Resources adjusted plaintiff's on-call schedule.43 Beginning August 3, 2009, plaintiff was only required to provide on-call, after-hours support from Monday at 6 a.m. until Friday at 5 p.m., and plaintiff was not required to provide support during prescheduled vacation or personal days.44 Additionally, plaintiff was granted a new FWA, which allowed her to work from home on Wednesdays.45 Under the new FWA, however, plaintiff was required to provide a detailed calendar listing of the projects and tasks that she worked on daily, and she was advised that the arrangement would be periodically reviewed to ensure its effectiveness.46

Plaintiff applied for the position of Senior Controls Engineer at Benjamin Moore on August 10, 2009.47 The position was based in Flanders, New Jersey, and the Senior Controls Engineer would be responsible for troubleshooting, eliminating control systems issues, managing controls projects, developing and maintaining process system databases, developing new control and monitoring systems, and other controls functions.48 The job posting listed the following required qualifications for the position:

Doc. no. 66-7 (Exhibits to Recca Deposition), at ECF 37-38.

In August of 2009, plaintiff told Edwards that she would no longer communicate with Recca directly, and would only communicate with him through voicemail or email.49 According to Recca, communications between him and plaintiff became strained.50 As a result, Pallozzi began attending weekly telephonic meetings between plaintiff and Recca to help assess the communication issues.51 On August 24, 2009, the following email correspondence occurred between plaintiff and Pallozzi:

Doc. no. 66-13 (Exhibits to Pallozzi Deposition), at ECF 7-8.52 Three days later, plaintiff sent the following email to Pallozzi:

Doc. no. 66-13 (Exhibits to Pallozzi Deposition), at ECF 9 (emphasis in original).

Plaintiff informed Recca that she had applied for the Senior Controls Engineer position on September 4, 2009.53

On October 21, 2009, the following email correspondence occurred between plaintiff and Recca (with Pallozzi attached as a recipient):

Doc. no. 66-11 (Exhibits to Edwards Deposition), at ECF 19-21.54 The next day, plaintiff sent the following email to Edwards (with the prior correspondence between Recca and plaintiff attached):

Doc. no. 66-11 (Exhibits to Edwards Deposition), at ECF 17-19. The weekly meetings between Pallozzi, Recca, and plaintiff ended after this email.55

By November of 2009, Benjamin Moore had received a total of 109 applicants for the Senior Controls Engineer position.56 Dotzman and Ken Marino, a Caucasian and Benjamin Moore's Vice President of Manufacturing, discussed what they wanted from the Senior Controls Engineer, and decided they needed somebody who was a mentor, had supervisory experience, and controls experience.57 Leadership and supervisory experience was important because Dotzman and Marino discussed the possibility of adding more controls engineers.58

Pallozzi screened the initial applicants.59 Five candidates were selected for interview based upon review of the candidate applications, including Frederick Yama, a Caucasian.60 Pallozzi also forwarded plaintiff's resume for review for the Senior Controls Engineer position,61 and Dotzman talked with plaintiff about the position and entertained her thoughts on how she could fulfill the role.62 Dotzman was familiar with plaintiff's skill set, and felt there was no need to interview her for the Senior Controls Engineer position.63

Pallozzi conducted the initial interview with Yama.64 Thereafter, Yama interviewed with Recca, Dotzman, Jonathan Shema, Gideon John, and Chris Reynaud.65 Dotzman and Recca then recommended Yama proceed to interview with Ken Marino.66 Marino conducted the final interview with Yama.67 Marino didn't interview plaintiff, however, because he did not believe she was qualified for the position.68

Ultimately, Marino decided to hire Yama for the Senior Controls Engineer position.69 Marino contends that he selected Yama over plaintiff because, in addition to plaintiff's lack of leadership, Yama had experience in chemical engineering as well as controls, while plaintiff's experience was limited to electrical controls, and Yama had thirty-four years of management experience, while plaintiff only had twenty-four years of management experience, and had not been a manager in nearly five years.70 Yama was offered the Senior Controls Engineer position on November 2, 2009.71

On November 12, 2009, plaintiff called Benjamin Moore's employee hotline — The Berkshire Hathaway Workplace Alert Program powered by Global Compliance — and reported that she was being discriminated and retaliated against, and subjected to a hostile working environment, because Recca was not including her in communications on a project and that she was denied a promotion.72 On November 23, 2009, plaintiff completed a follow-up call and requested that someone contact her as soon as possible because she was working in a "hostile work environment."73

On November 25, 2009, Recca announced that Yama would be the new Senior Controls Engineer.74 Rick Yama assumed the position on November 30, 2009.75 Thereafter, Yama was plaintiff's direct manager, and he reported to Recca, plaintiff's former direct manager.76 Yama was told there were communication issues with plaintiff before he joined Benjamin Moore.77

On December 1, 2009, plaintiff filed a Charge of Discrimination with the EEOC based upon her race and sex, alleging that she had been denied assistance to perform her duties and that she was denied a promotion to Senior Controls Engineer.78 The notice of the charge of discrimination was dated December 2, 2009, and was addressed to Edwards.79 On December 14, 2009, Global Compliance concluded its investigation of plaintiff's internal, hotline complaint, noting:

Doc. no. 66-11 (Exhibits to Edwards Deposition), at ECF 4. On December 18, 2009, plaintiff wrote a letter to Warren Buffett, the Chairman, President, and CEO of Berkshire Hathaway, the parent company of Benjamin Moore, complaining generally of discrimination.80 Subsequently, Benjamin Moore investigated plaintiff's complaints from her EEOC Charge of Discrimination, but found no evidence of discrimination or harassment.81

On December 24, 2009, Recca emailed Pallozzi, Edwards, and Marc Zoldessy, Benjamin Moore's General Counsel, an early draft of plaintiff's 2009 Performance Review Form, noting that: "This review and the events that led up to it have not been a pleasant experience for me. My only consolation is that I feel confident that I provided every opportunity I could to Tracy for it not to have turned out this way."82

On January 4, 2010, plaintiff sent the following email to Pallozzi:

Doc. no. 66-13 (Exhibits to Pallozzi Deposition), at ECF 13 (emphasis in original).

Id. at ECF 14.

Thereafter, Plaintiff received her 2009 Performance Evaluation.83 Plaintiff was given a rating of "3-Meets All Expectations," just as in her 2007 and 2008 evaluation.84 However, in addition to noting several of plaintiff's successes, Recca noted several weaknesses, including, for example, the following comments:

Doc. no. 66-7 (Exhibits to Recca Deposition), at ECF 58-59. Plaintiff made the following additional comments in her 2009 evaluation:

Doc. no. 66-7 (Exhibits to Recca Deposition), at ECF 53-59.

On January 13, 2010, plaintiff filed a second Charge of Discrimination.85 In addition to her previous allegations, plaintiff alleged: "Since filing this charge of discrimination I was given negative commentary by my supervisor on my annual evaluation even though the overall rating was a meet expectation. This type of evaluation is used by the employer to terminate employees when there is a reduction in force or downturn."86

In March of 2010, the following email correspondence occurred between Yama and plaintiff, with Edwards eventually copied onto the email chain:

Doc. no. 66-3 (Exhibits to Plaintiff Deposition), at ECF 9-11.87

On April 29, 2010, plaintiff sent the following email to Pallozzi and Edwards:

Doc. no. 66-13 (Exhibits to Pallozzi Deposition), at ECF 21. On May 3, 2010, Sanders again reported to Edwards that she was being left out of projects for which she would be providing system support.88

At some point during plaintiff's employment, Benjamin Moore revised plaintiff's job description to include on-call activity.89 Thereafter, in April of 2010, plaintiff requested and was granted FMLA leave.90 She began her leave on May 11, 2010.91 On May 19, 2010, Benjamin Moore received notice that plaintiff filed an OSHA complaint against the company.92 On June 7, 2010, Benjamin Moore learned that plaintiff had filed a second OSHA complaint alleging that the company retaliated against her by terminating her pay while she was on sick leave.93 On August 2, 2010, Pam Sori, plaintiff's medical provider, wrote a letter stating that plaintiff could return to work on August 3, 2010, with the following limitations:

Doc. no. 66-4 (Exhibits to Plaintiff Deposition), at ECF 31 (emphasis in original).

The next day, plaintiff faxed Sori's letter to Benjamin Moore and returned to work.94 Thereafter, Recca sent the following email to Pallozzi, Edwards, Yama, and Zoldessy:

We received this fax from Tracy today. Apparently she is back to work. Please advise us on an appropriate response, if any to the fax. In light of the requested limitations I would also like to have some guidance for Rick and I on the best way to conduct communications and introduce work to Tracy.

Doc. no. 66-13 (Exhibits to Pallozzi Deposition), at ECF 31. Pallozzi forwarded Recca's email to Diane Delikat, a Benjamin Moore Nurse and Short-term Disability specialist.95

On August 4, 2010, Delikat faxed a letter to Sori stating: "Enclosed is a job description for Tracy Jones-Sanders, can she perform this job as described?"96 Sori faxed a written response, stating: "Yes."97 On August 5, 2010, Delikat sent the following letter to Sori:

Doc. no. 66-11 (Exhibits to Edwards Deposition), at ECF 22. Plaintiff's work schedule was then modified to 7:30 a.m. to 3:30 p.m., with no on-call responsibilities.98 Following plaintiff's return to work, Benjamin Moore terminated her FWA.99 According to Edwards, plaintiff's FWA was terminated because Recca was not happy with the way she had been keeping her calendar.100 Yama sent the following email to plaintiff regarding those decisions:

Doc. no. 72-1 (Exhibit 1 to Plaintiff's Response), at ECF 2.101 Plaintiff then sent the following email to Edwards on August 5, 2010:

Doc. no. 66-14 (Exhibits to Pallozzi Deposition), at ECF 2-3 (emphasis in original).

On August 10, 2010, Edwards sent plaintiff the following email:

Below summarizes our findings based on the points in your e-mail:

Doc. no. 66-11 (Exhibits to Edwards Deposition), at ECF 30-31.

On August 11, 2010, Pallozzi sent the following email to plaintiff:

Regarding the role of HR:

Doc. no. 66-14 (Exhibits to Pallozzi Deposition), at ECF 4-6.

Following the termination of plaintiff's FWA, she requested, and was permitted, to leave work early on Wednesday afternoons to attend a doctor's appointment.102 On Wednesday, August 11, 2010, Benjamin Moore requested a note from Sori to substantiate plaintiff's doctor's visit for that day.103 Plaintiff responded the next day:

Doc. no. 66-14 (Exhibits to Pallozzi Deposition), at ECF 7. Plaintiff attached a note to her email, signed by Sori, indicating that plaintiff was at a doctor's appointment on August 11, 2010, and that Sori's office would not fax an excuse or any patient information.104 Edwards responded:

Id.

On August 18, 2010, Edwards sent plaintiff the following email:

To: Sanders, Tracy

Doc. no. 66-5 (Exhibits to Plaintiff Deposition), at ECF 34-35. The next day, plaintiff sent an email to Edwards, Pallozzi, and others stating that she was taking prescribed medication for insomnia that impaired her ability to function outside of her normal hours of work.105 Attached to plaintiff's email was the following letter from Sori:

Doc. no. 66-4 (Exhibits to Plaintiff Deposition), at ECF 36.

Delikat purportedly faxed Sori a standard Reasonable Accommodation questionnaire to complete on behalf of plaintiff on August 24, 2010, and again on September 1, 2010.106 Sori never responded, even though Delikat left messages on Sori's phone.107

On August 31, 2010, plaintiff sent the following email to Pallozzi, Edwards, Yama, and Zafor Ullah, an investigator with OSHA:

Doc. no. 72-5 (Exhibit 5 to Plaintiff's Response), at ECF 4. Palozzi emailed the following response:

Id. at ECF 3.

On September 13, 2010, Edwards mailed a letter to Sori requesting that she complete the Reasonable Accommodation questionnaire.108 Edwards also asked plaintiff to have another medical provider complete the questionnaire if plaintiff was unable to have Sori complete it.109 Finally, Benjamin Moore received a note from Toni Roberson, a provider in the same facility as Sori, stating that he "completes FML forms only in relation to work status."110

On October 4, 2010, plaintiff sent an email to Edwards and the EEOC stating that she believed she was being discriminated and retaliated against based upon her race and her FMLA leave because Benjamin Moore changed her job duties, prohibited her from the Resin area, and circumvented her communications.111 On October 6, 2010, Edwards sent the following email to plaintiff:

Doc. no. 66-4 (Exhibits to Plaintiff Deposition), at ECF 24-26 (emphasis in original).

Following her termination, plaintiff sought and received Short-Term Disability benefits through January of 2013.113 During the application process, plaintiff completed an Aetna Resources Questionnaire in which she stated that she did not anticipate returning to her previous occupation or any other occupation in the near future because she was physically and mentally not able to do so.114 On November 2, 2010, Delikat emailed Pallozzi, Edwards, and Zoldessy to inform them: "Aetna has received medical documentation on [plaintiff's Short-term Disability] claim that she filed. Aetna is obligated to review the medical info that was submitted. When a decision has been made I will notify you."115

On November 4, 2010, OSHA issued a citation to Benjamin Moore for failing to ensure that contractor employees followed safe work practices while changing stainless steel pipes and flanges.116

On November 16, 2010, Paul Smith, Benjamin Moore's Payroll Manager, sent an email to John Toman, Benjamin Moore's Payroll Analyst, stating:

Doc. no. 66-17 (Exhibits to Smith Deposition), at ECF 34.

From March 31, 2011 through July 15, 2011, Benjamin Moore directly deposited money in plaintiff's bank account.117 Benjamin Moore later learned that plaintiff received long term disability benefits for the same period, from January 19, 2011 through August 31, 2012, and was not entitled to any additional payment.118 Generally, the company would ask the employee to repay any overpayment.119 When Toman called plaintiff to ask for repayment, however, plaintiff refused, stated that she deserved the amount because of her disability claim and that Toman should contact her lawyer, and hung up on him.120 On August 23, 2011, Mike Farrell sent an email to Kristina Cisneros, stating: "The bulk of the overpayment by us came from April 1 — June 30th we overpaid $18,396 but you can only offset for the $10,740."121 The next day, Amaya B. Christian, Aetna's Senior OA Analyst, sent the following letter to plaintiff:

Doc. no. 72-7 (Exhibit 7 to Plaintiff's Response), at ECF 5.122

The following email correspondence occurred between Farrell and Cisneros in September of 2011:

Doc. no. 72-7 (Exhibit 7 to Plaintiff's Response), at ECF 4.

In November of 2012, Laura L. Seeman, Division Chief for the Field Operations Office of the Whistleblower Protection Program at the U.S. Department of Labor sent the following letter to plaintiff:

Doc. no. 66-2 (Exhibits to Plaintiff Deposition), at ECF 33.

III. MOTION TO STRIKE

Benjamin Moore contends that portions of plaintiff's evidentiary submission in opposition to summary judgment, including exhibits 2, 3, 4, and 6, should be struck because plaintiff failed to authenticate them, and they contain irrelevant information, opinion testimony, and inadmissible hearsay.123 Plaintiff argues that a motion to strike is only appropriate as to pleadings, and not to evidentiary submissions outside the pleadings.124 See Fed. R. Civ. P. 12(f) ("The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."). The law is not entirely clear on whether a court has broad powers to strike evidence or other non-pleadings, or if a court's power to strike is limited by Rule 12(f) to the pleadings. Compare Reese v. Herbert, 527 F.3d 1253, 1265, 1274 (11th Cir. 2008) (affirming district court's grant of a motion to strike an affidavit), with Polite v. Dougherty Cnty. Sch. Sys., 314 F. App'x 180, 184 n.7 (11th Cir. 2008) ("motions to strike are only appropriately addressed towards matters contained in the pleadings"). In any event, Federal Rule of Civil Procedure 56 provides: "A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). Thus, "[a]lthough the form of the [motion to strike] is not grounded in a federal procedural rule, the substance of the motion[] will be considered." Stuckey v. Alabama Bd. of Pardons and Paroles, 2:11-cv-112-WKW, 2012 WL 3670644, *1 n.2 (M.D. Ala. Aug. 27, 2012). Accordingly, Benjamin Moore's Motion to Strike is due to be denied; however, the court will consider the substance of the motion in deciding the Motion for Summary Judgment.

With respect to the issue of authenticity, Benjamin Moore argues that a document must be authenticated by, and attached to, an affidavit that meets the requirements of Rule 56(e) before the court can consider it at summary judgment.125 In support of its argument, Benjamin Moore cites Saunders v. Emory Healthcare, Inc., 360 F. App'x. 110, 113 (11th Cir. Jan. 11, 2010). However, "[t]he Saunders opinion does not govern this issue because Rule 56 was amended in 2010. Under the 2010 amendment, which became effective on December 1, 2010, authentication of documents no longer is required at the summary judgment stage." Agee v. Chugach World Services, Inc., 5:12-cv-2119-MHH, 2014 WL 5795555, *5 (N.D. Ala. Sept. 30, 2014) (citing Abbott v. Elwood Staffing Servs., Inc., 1:12-cv-2244-VEH, 2014 WL 3809808 (N.D. Ala. July 31, 2014) ("The majority of the opinions this Court has read from courts construing current Rule 56, however, state the amendments eliminated the authentication requirement and replaced it with a requirement that evidence be presentable in admissible form at trial.")).

Under current Rule 56(c), "the inquiry is whether the exhibit can be submitted in a form that will be admissible in evidence." Agee, 2014 WL 5795555, at *5. Federal Rule of Evidence 901 provides:

Fed. R. Evid. 901. Plaintiff has submitted a declaration in an attempt to authenticate her summary judgment exhibits.126 Plaintiff asserts that exhibit 2 is Benjamin Moore's organization charts, and that the handwriting is her own.127 She asserts that exhibit 3 is a composite exhibit containing print-previews from Benjamin Moore's Performance Manager System, which she had access to, and that the handwriting was her own.128 She asserts that exhibit 4 is a business directive she received on August 24, 2010 during her employment.129 Finally, she asserts that exhibit 6 is a copy of documents from the United States Department of Labor.130 Benjamin Moore contends, for a variety of reasons, that plaintiff's declaration is insufficient.131 Based upon the declaration, however, the court is satisfied that plaintiff could authenticate the exhibits at trial.

Benjamin Moore next contends that plaintiff's exhibits are irrelevant in violation of Federal Rule of Evidence 402 and that they contain improper opinion testimony in violation of Federal Rule of Evidence 701 because there is no evidence presented as to who wrote the notations on the exhibits, whether the author is plaintiff, what specific issues the notations pertain to, or to whom the notations were written.132 Regarding the relevance of the exhibits, Benjamin Moore's contention is trivial. If the exhibits are irrelevant, the court will simply not consider them on summary judgment. Regarding the issue of improper opinion testimony, plaintiff clarifies that she wrote the handwritten notations in the exhibits.133 Upon review of plaintiff's various submissions in opposition to summary judgment, it appears that plaintiff is not relying on her handwritten notations to oppose summary judgment. Thus, the court will not consider plaintiff's handwritten notations.

Benjamin Moore finally contends that plaintiff's exhibits constitute inadmissible hearsay because they contain written assertions of a person made in a non-testimonial environment.134 However, Benjamin Moore does not cite to any specific written assertion that it contends is inadmissible hearsay. Without such guidance, the court cannot make a determination regarding whether any specific statement is being offered to prove the truth of the matters asserted.

IV. DISCUSSION OF MOTION FOR SUMMARY JUDGMENT

A. Claims Subject to the McDonnell Douglas Framework

Plaintiff's discrimination claims are asserted under Title VII and 42 U.S.C. § 1981.135 "Both of these statutes have the same requirements of proof and use the same analytical framework. . . ." Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). The essential element under each statute is proof that the employer intentionally inflicted the adverse employment action complained of because of the plaintiff's race. See, e.g., Vessels v. Atlanta Independent School System, 408 F.3d 763, 767 (11th Cir. 2005) (observing that disparate treatment claims based upon a plaintiff's race and "brought under Title VII, § 1981, and § 1983, all require proof of discriminatory intent"). Thus, the court will consider plaintiff's Title VII and § 1981 racial discrimination claims together. Additionally, retaliation claims asserted under Title VII, § 1981, and the FMLA have the same burden of proof. Penaloza v. Target Corp., 549 F. App'x 844, 847-48 (11th Cir. 2013). Thus, the court will likewise consider plaintiff's Title VII, § 1981, and FMLA retaliation claims together.

Plaintiff attempts to establish Benjamin Moore's discriminatory and retaliatory intent through the use of circumstantial evidence.136 Federal courts evaluate the sufficiency of such evidence using some variant of the analytical framework announced by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and elaborated in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). See also, e.g., St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2004) (en banc); Berman v. Orkin Exterminating Co., Inc., 160 F.3d 697, 701 (11th Cir. 1998); Bigge v. Albertsons, Inc., 894 F.2d 1497, 1501 (11th Cir. 1990). Under that familiar framework, a plaintiff must first establish a prima facie case of disparate treatment or retaliation, which creates a presumption of discrimination or retaliation. To rebut that presumption, the employer must articulate a legitimate, nondiscriminatory and nonretaliatory reason for the contested employment action. If the employer does so, the presumption of discrimination or retaliation drops from the case, and the burden shifts back to the plaintiff to show that the employer's proffered reason is merely a pretext for unlawful discrimination or retaliation. See, e.g., McDonnell Douglas, 411 U.S. at 802-05; Burdine, 450 U.S. at 252-56.

1. Prima Facie Case of Discrimination

Plaintiff bases her discrimination claims upon the following employment actions: her increased workload (including the denial of her request for help with her workload); the removal of her FWA privileges; the requirement that she attend weekly meetings with Recca; Recca's criticism of plaintiff's calendar entries; plaintiff's exclusion from engineering communications (and her subsequent humiliation); Pallozzi's comments that plaintiff was "insubordinate;" her negative performance evaluation; Benjamin Moore's failure to promote plaintiff to the Senior Controls Engineer position; and plaintiff's termination.137

To establish a prima facie case of race-based discrimination, plaintiff must show that: (1) she is a member of a protected class, (2) she suffered an adverse employment action, (3) the employer replaced her with someone outside his protected class or otherwise treated similarly situated employees outside his protected class more favorably, and (4) she was qualified to perform the duties of his job. See, e.g., Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1228 (11th Cir. 2002); Crapp v. City of Miami Beach, 242 F.3d 1017, 1020 (11th Cir. 2001); Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1185 (11th Cir.1984).

Benjamin Moore contends that many of the acts plaintiff complains of were not "adverse employment actions" under the discrimination statutes.138

Howard v. Walgreen Co., 605 F.3d 1239, 1245 (11th Cir. 2010). Thus, plaintiff must "establish an `ultimate employment decision' or make some other showing of substantiality in the employment context in order to establish an adverse employment action." Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (citing, inter alia, Davis, 245 F.3d at 1239).

An "ultimate employment decision" is one "such as termination, failure to hire, or demotion." Id. For a decision "falling short of an ultimate employment decision" to rise to the level of an actionable adverse employment action, that decision "must, in some substantial way, alter the employee's compensation, terms, conditions, or privileges of employment, deprive him or her of employment opportunities, or adversely affect his or her status as an employee." Id. (internal quotations and citation omitted). Among the facts and circumstances affecting whether a decision is considered "adverse" are whether the decision results in "lesser pay, responsibilities or prestige," and whether the decision would "impede an employee's professional growth or advancement." Doe v. DeKalb County School District, 145 F.3d 1441, 1452 (11th Cir. 1998). "Although proof of direct economic consequences is not required in all cases, the asserted impact `cannot be speculative and must at least have a tangible adverse effect on the plaintiff's employment.'" Soloski v. Adams, 600 F.Supp.2d 1276, 1356 (N.D. Ga. 2009) (quoting Filius v. Potter, 176 F. App'x 8, 10 (11th Cir. 2006)). "While adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employee unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit. "Smart v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996) (internal quotations and citations omitted).

Benjamin Moore specifically argues that plaintiff's increased workload, the purported "nitpicking" she endured, plaintiff's exclusion from engineering communications, and her negative performance evaluation does not constitute adverse employment actions.139 The court agrees, in part.140 There is no evidence that the purported "nitpicking" plaintiff endured (such as the requirement that plaintiff attend weekly meetings with Recca, Recca's criticism of plaintiff's calendar entries, and Pallozzi's comments that plaintiff was "insubordinate"), or the purportedly negative performance review affected the terms, conditions, or privileges of plaintiff's employment. See, e.g., Austin v. City of Montgomery, 196 F. App'x 747, 753 (11th Cir. 2006) (counseling memos not adverse employment actions because plaintiff failed to show that memos were "a formal reprimand or triggered any tangible form of adverse action such as loss in benefits, ineligibility for promotional opportunities, or more formal discipline"); Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1261 ("Negative performance evaluations, standing alone, do not constitute adverse employment action.").141 Although plaintiff may have been unhappy with this conduct, it does not constitute an adverse employment action. See Smart, 89 F.3d at 441.

Thus, the only conduct for which plaintiff may be able to establish a prima facie case of discrimination are: her increased workload; her exclusion from engineering communications; the removal of her FWA privileges; Benjamin Moore's failure to promote plaintiff to the Senior Controls Engineer position; and plaintiff's termination.

2. Prima Facie Case of Retaliation

Plaintiff bases her retaliation claims upon the same employment actions as her discrimination claims.142 A plaintiff generally must prove three elements to establish a prima facie case of retaliation: (1) she engaged in statutorily protected expression; (2) she suffered an adverse employment action; and (3) there was a causal linkage between the protected conduct and the adverse employment action. See, e.g., Shannon v. BellSouth Telecommunications, Inc., 292 F.3d 712, 715 (11th Cir. 2002).

Benjamin Moore first argues the alleged "nitpicking" plaintiff endured, and her 2009 performance evaluation, do not constitute materially adverse actions.143 The court agrees. To satisfy the adverse action prong, plaintiff "must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006). However, in speaking of material adversity, the Court felt it "important to separate significant from trivial harms." Id. Based upon this guidance, it is clear that the "nitpicking" (i.e., the requirement that plaintiff attend weekly meetings with Recca, Recca's criticism of plaintiff's calendar entries, and Pallozzi's comments that plaintiff was "insubordinate") amounts to trivial harms. Further, although a negative performance evaluation may be materially adverse in some circumstances, it is not in this case. In light of plaintiff's positive overall score in her performance evaluation (which was consistent with her 2007 and 2008 performance reviews), and the constructive nature of the purportedly negative comments which were accompanied by positive comments, plaintiff's 2009 performance evaluation falls squarely in the trivial versus significant harm category the Supreme Court cautioned courts to refrain from finding materially adverse. Id. at 68; see, e.g., Forbes v. City of North Miami, No. 11-21200-CIV, 2012 WL 1135820, *12 (S.D. Fla. Apr. 4, 2012) ("A critical review of an employee's work product in and of itself would not deter a reasonable employee from making or supporting a charge of discrimination. On the contrary, a reasonable employee who received numerous warnings about his work product may be more inclined to expect such a review."). Accordingly, plaintiff's prima facie of retaliation based upon the "nitpicking" and her 2009 performance evaluation fails.

Next, Benjamin Moore contends that there is no causal connection between plaintiff's protected activity and the removal of her FWA and her termination.144 Specifically, defendant notes that plaintiff's FWA was removed seven months after she amended her charge of discrimination, and her employment was terminated nine months after she amended her charge of discrimination.145 Generally, a plaintiff can satisfy the causation prong by "prov[ing] that the protected activity and the negative employment action are not completely unrelated." Meeks v. Computer Assocs., 15 F.3d 1013, 1021 (11th Cir. 1994) (internal citation and quotation mark omitted). This is satisfied when the plaintiff "provides sufficient evidence that the decision-maker became aware of the protected conduct, and that there was close temporal proximity between this awareness and the adverse employment action." Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999).

In this case, the delay between plaintiff's amended charge of discrimination and the removal of her FWA and termination is too remote to establish a causal connection by itself. See Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) (four month delay between protected activity and adverse action insufficient to establish a causal connection without other evidence). However, plaintiff has presented sufficient evidence that she engaged in a Title VII protected activity immediately prior to her FMLA leave. Specifically, plaintiff's April 29, 2010 letter to Pallozzi complained about unlawful discrimination, and was protected by the "opposition clause" of Title VII. See E.E.O.C. v. Total System Services, Inc., 221 F.3d 1171, 1174 (11th Cir. 2000) ("Under the opposition clause, an employer may not retaliate against an employee because the employee `has opposed any practice made an unlawful employment practice by this subchapter.'") (quoting 42 U.S.C. § 2000e-3(a)); Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1312 (11th Cir. 2002) ("To establish that a plaintiff engaged in statutorily protected expression, we have held that a plaintiff must show that she `had a good faith, reasonable belief that the employer was engaged in unlawful employment practices.'") (quoting Little v. United Tech., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997)).146 Accordingly, plaintiff can establish a prima facie case of retaliation under Title VII based upon the removal of her FWA and termination.147

Thus, the only conduct for which plaintiff may be able to establish a prima facie case of retaliation are her increased workload, her exclusion from engineering communications, Benjamin Moore's failure to promote plaintiff, the removal of her FWA, and her termination.

3. Pretext

In light of plaintiff's prima facie case of racial discrimination and retaliation based upon plaintiff's increased workload, her exclusion from engineering communications, Benjamin Moore's failure to promote her to the Senior Controls Engineer position, the removal of plaintiff's FWA, and the termination of plaintiff's employment, the burden shifts to Benjamin Moore to articulate a non-discriminatory and non-retaliatory reason for its actions. Benjamin Moore asserts several reasons for its various employment decisions. First, the company contends that plaintiff's workload increased as a result of the 2008 RIF and subsequent staff shortages. Second, the company contends that plaintiff's exclusion from engineering communications was because many of the engineers Recca communicated with outside of plaintiff's presence were located with Recca in Flanders, New Jersey, and Recca encountered them more often than he encountered plaintiff. Third, the company asserts that plaintiff's FWA was removed due to her failure to abide by her manager's instructions to properly update her calendar entries. Fourth, the company asserts that plaintiff was not promoted to the Senior Controls Engineer positions because: "(1) she had shown a lack of leadership skills resulting from her inability to communicate appropriately with her managers; (2) Yama had significantly more management experience and more recent experience; and (3) Yama had a more extensive background in both chemical engineering and controls."148 Finally, Benjamin Moore asserts that Marino terminated plaintiff because she failed to provide a completed questionnaire from her medical provider after repeated requests. According to the company, the essential functions of plaintiff's position required on-call responsibilities, and, after multiple attempts to obtain information regarding the expected length of accommodations from Sori, Benjamin Moore instructed plaintiff to obtain the information.

These reasons initially satisfy Benjamin Moore's burden under the McDonnell Douglas framework because Benjamin Moore "need only produce evidence that could allow a rational fact finder to conclude that [the adverse actions were] not made for a discriminatory [or retaliatory] reason." Standard, 161 F.3d at 1331. "In light of this, [plaintiff] must now create a genuine issue of material fact as to whether the reasons advanced are pretextual. In other words, [plaintiff] must provide sufficient evidence to allow a reasonable fact finder to conclude that the proffered reasons were not actually the motivation for" the various adverse employment actions. Id. at 1332; see Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (internal quotation marks and citations omitted) ("The district court must evaluate whether [plaintiff] has demonstrated such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [Benjamin Moore's] proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.").

Plaintiff offers no evidence or argument to rebut Benjamin Moore's articulated reasons for her increased workload and exclusion from engineering communications. Indeed, plaintiff was the only controls engineer after the RIF, and the only engineer located at Benjamin Moore's Pell City facility. In fact, plaintiff does not dispute that "[t]he RIF required employees across the company to take on additional responsibilities of those employees who had been terminated in the reduction or who chose to leave the company in the face of the reduction,"149 or that she "was not present at the same facility during the alleged communications that Recca had with other engineers."150 For these reasons, summary judgment is due to be granted as to plaintiff's claims of discrimination and retaliation based upon her increased workload and exclusion from engineering communications.

Plaintiff does, however, attempt to establish pretext regarding Benjamin Moore's articulated reasons for removing her FWA, failing to promote her to the Senior Controls Engineer position, and terminating her.151 The court addresses these employment actions in turn below.

i. Removal of Plaintiff's FWA

Plaintiff contends that Benjamin Moore's articulated reason for removing her FWA was pretextual because her calendar issues were from the previous year, and Benjamin Moore waited until after she returned from FMLA leave to terminate her FWA.152 Initially, the court notes that plaintiff disputed her calendar issues (the asserted reason her FWA was terminated) based upon Recca's letter stating: "When in attendance at your regular work location no [calendar] entry required."153 However, Recca still required plaintiff to keep an updated calendar regarding the projects assigned while she worked from home (i.e., not her regular work location), and Recca's letter was sent months before a new FWA was granted requiring plaintiff "to get a detailed calendar listing of the projects and tasks being worked on."154

Plaintiff also disputes her calendar issues because, in response to an email from Recca telling plaintiff there were gaps for 8 hours of planned or actual activity in her calendar, she stated: "You have to open the WFH to see the day's agenda/activity, I save the actual time slots for actual appointments."155 However, Recca sent another email later stating:

Doc. no. 66-4 (Exhibits to Plaintiff Deposition), at ECF 20. Although plaintiff's email does support the fact that she updated her calendar, it does not address the specific issues plaintiff was having with updating her calendar (i.e., that plaintiff was simply copying the same schedule, and was not updating her calendar based on what she was actually prioritizing for that day). Thus, it is undisputed that plaintiff was having calendar issues in 2009.

It is peculiar, however, that Benjamin Moore terminated plaintiff's FWA only after her return from FMLA leave, as opposed to at any point in the previous year. Based on the significant temporal gap between Benjamin Moore's decision to terminate plaintiff's FWA and plaintiff's initial calendar issues (over a year), and the close temporal proximity between said decision and plaintiff's return from FMLA leave (only a few days), a jury could conclude that the calendar issues were a pretext for retaliating against plaintiff for taking FMLA leave.

ii. Failure to Promote Plaintiff

Plaintiff contends that Benjamin Moore's articulated reasons for failing to promote her to the Senior Controls Engineer position were pretextual because Yama was not qualified for the position, and Benjamin Moore cannot produce a single discipline showing that plaintiff was insubordinate.156 The court disagrees. Plaintiff's primary reason for contending that Yama was not qualified for the position is because "[t]he job requirements include `BS degree in Electrical Engineering or Electronic Engineering Technology' which Yama does not have."157 However, plaintiff omits a material portion of the required qualifications for the Senior Controls Engineer position: that the applicant have experience equivalent to a BS degree in Electrical Engineering or Electronic Engineering Technology.158 Yama had experience in controls engineering, as well as thirty-four years of management experience — certainly meeting the "equivalent experience" requirement in lieu of a degree in Electrical Engineering or Electronic Engineering Technology.

Plaintiff also directs the court's attention to Recca's testimony regarding Yama's qualifications.159 However, it was Marino, not Recca, who was the ultimate decision-maker in this case. The fact that Recca did not know what qualifications Yama possessed is irrelevant in light of Marino's testimony.160

Finally, plaintiff's contention that she was never disciplined for insubordination is also irrelevant, considering the voluminous amounts of evidence demonstrating her inability to communicate effectively with her superiors (i.e., one of the articulated reasons Benjamin Moore gave for choosing Yama over plaintiff).161 In short, there is no evidence that Marino's reasons for selecting Yama over plaintiff for the Senior Controls Engineer position were pretextual.

iii. Termination

Plaintiff initially contends that Benjamin Moore's articulated reason for terminating her was pretextual because she was not sent the reasonable accommodation questionnaire until after September 13, 2010.162 However, regardless of whether plaintiff was sent the questionnaire at the time Benjamin Moore initially attempted to contact Sori, plaintiff testified that she received it around the time it was sent to her on September 13, 2010.163 That means that plaintiff had possession of the questionnaire when Edwards sent the October 6, 2010 letter instructing plaintiff to have her medical provider complete the questionnaire and return it before October 12, 2010, or risk termination.164 Plaintiff's failure to receive the questionnaire prior to the Edwards's letter does not evidence pretext because it is consistent with the company's efforts to have the questionnaire completed by plaintiff's medical providers. In other words, the company attempted to have Sori complete the questionnaire on its on, and when she would not, they instructed plaintiff to have Sori complete it. Thus, plaintiff was given ample opportunity to have Sori compete the questionnaire and return it to Benjamin Moore, and the company's reasons for terminating plaintiff were not pretextual based upon the timing of Edwards's letter and plaintiff's receipt of the questionnaire.

Next, plaintiff contends that there is pretext because there is a genuine dispute regarding whether plaintiff's on-call responsibilities were "essential."165 Under the FMLA, "an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period" for "a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). An employee is unable to perform the functions of her position if she is "unable to work at all or . . . unable to perform any one of the essential functions of the employee's position." 29 C.F.R. § 825.123.

Grace v. Adtran, Inc., 470 F. App'x 812, 815-16 (11th Cir. 2012).

The court is satisfied that there is no genuine dispute regarding whether on-call responsibilities were an "essential function" of plaintiff's position. Although her written job description did not originally include on-call responsibilities, plaintiff assumed those responsibilities following the RIF, and maintained them for almost two years up until her return from FMLA leave, when Benjamin Moore temporarily re-assigned them in an effort to temporarily accommodate plaintiff. In fact, Benjamin Moore made it clear that the accommodation would be temporary, and that plaintiff was expected to resume on-call responsibilities eventually. Edwards noted that "although [on-call responsibilities are] not specifically highlighted in the Job Description, it's a responsibility that was communicated to you in the past and we foresee On-Call coverage continuing to be a part of this job responsibility in the future."166 It is disingenuous for plaintiff to claim that on-call responsibilities were not essential when, for two years, she attempted to have Benjamin Moore reassign the duties, but the company never did (i.e., it was necessary that plaintiff, the only Controls Engineer for almost two years, perform these duties). Based upon these facts, plaintiff cannot establish that Benjamin Moore's articulated reason for terminating her was pretextual because her job duties were not actually "essential."

For the aforementioned reasons, summary judgment is due to be granted as to plaintiff's discrimination and retaliation claims based upon the purported "nitpicking," plaintiff's 2009 performance evaluation, her increased workload, her exclusion from engineering communications, Benjamin Moore's failure to promote plaintiff, and plaintiff's termination. Summary judgment is due to be denied as to plaintiff's discrimination and retaliation claims based upon the removal of her FWA.

B. FMLA Interference

To establish an interference claim under the FMLA, "an employee must demonstrate that he was denied a benefit to which he was entitled under the FMLA." Martin v. Brevard Cnty. Pub. Sch., 543 F.3d 1261, 1266-67 (11th Cir. 2008). Plaintiff contends that Benjamin Moore interfered with her right to reinstatement under the FMLA by changing her core hours, removing her FWA, re-imposing her on-call responsibilities, and instituting bi-weekly meetings with Yama.167 After an employee's qualifying FMLA absence, a covered employer must reinstate the employee to his or her former position or an alternate one with equivalent pay, benefits, and working conditions. 29 U.S.C. § 2614(a)(1); 29 C.F.R. § 825.214. The Eleventh Circuit has concluded, however, that an employee who is unable to perform an essential job function is not entitled to reinstatement upon returning from FMLA leave. See Grace, 470 F. App'x at 816 ("Because Grace was still restricted from lifting more than 10-pounds at the end of her FMLA leave, she remained unable to perform an essential function of her position and, thus, was unentitled to return to her position."). As previously determined, on-call responsibilities were an essential function of plaintiff's employment position.168 Plaintiff has admitted that she was unable to perform on-call responsibilities following her 12 weeks of FMLA leave. Accordingly, she was not entitled to reinstatement, and Benjamin Moore did not interfere with her FMLA rights by removing her FWA following her return.

C. Retaliatory Hostile Work Environment

Benjamin Moore barely addresses plaintiff's retaliatory hostile work environment claim. The company argues that the underlying acts were discrete and cannot form the basis of a hostile work environment claim, and that the underlying acts were not objectively and subjectively severe and pervasive.169 Benjamin Moore presents no discussion or analysis regarding its contentions; it only states, in conclusory fashion, that the underlying acts were discrete, and were not objectively and subjectively severe and pervasive such that plaintiff could establish a prima facie case. The court will not entertain those contentions without any substantive argument.

D. State-Law Claims

Benjamin Moore contends that plaintiff's claims of negligent or wanton supervision must be dismissed because plaintiff cannot prove that the company committed an underlying Alabama common-law tort.170 The court agrees. See Thrasher v. Ivan Leonard Chevrolet, Inc., 195 F.Supp.2d 1314, 1320 (N.D. Ala. 2002) ("In order to establish a claim against an employer for negligent supervision, training, and/or retention, the plaintiff must establish that the allegedly incompetent employee committed a common-law, Alabama tort.") (citing Stevenson v. Precision Standard, Inc., 762 So.2d 820, 824 (Ala. 1999)). Plaintiff does not offer any argument to dispute this contention. Accordingly, plaintiff's state law claims of negligent or wanton supervision are due to be dismissed.

E. Unjust Enrichment

Benjamin Moore contends that it is entitled to summary judgment on its unjust enrichment counterclaims.171 "[T]o prevail on a claim of unjust enrichment, the plaintiff must show that the defendant holds money which, in equity and good conscience, belongs to the plaintiff." Mantiply v. Mantiply, 951 So.2d 638, 654 (Ala. 2006); see also Matador Holdings, Inc. v. HoPo Realty Investments, L.L.C., 77 So.3d 139, 145 (Ala. 2011) ("To prevail on a claim of unjust enrichment under Alabama law, a plaintiff must show that: (1) the defendant knowingly accepted and retained a benefit, (2) provided by another, (3) who has a reasonable expectation of compensation.") (citations omitted). Enrichment may be "unjust" for purposes of this doctrine if "the donor of the benefit . . . acted under a mistake of fact or in misreliance on a right or duty." Mantiply, 951 So. 2d at 654-55.172 According to Benjamin Moore, plaintiff received a salary continuation and long term disability benefits for the same time period, resulting in an overpayment of $24,533.36.173 Plaintiff contends that the salary continuation was not a mistake, but was retaliatory in order to cause Aetna to suspend plaintiff's long term disability benefits.174 Plaintiff's contention is based on speculation. She has not cited any evidence that the overpayment was anything more than a mistake. Even so, the court cannot discern exactly how much plaintiff owes Benjamin Moore for the deposits, and it is unsure of how Benjamin Moore arrived at the value of $24,533.36. Accordingly, the court will deny Benjamin Moore's motion for summary judgment on its unjust enrichment claims.

IV. CONCLUSION

For the aforementioned reasons, Benjamin Moore's motion for summary judgment is due to be DENIED as it relates to the company's counterclaims, plaintiff's retaliatory hostile work environment claim, and her discrimination and retaliation claims pursuant to Title VII, § 1981, and the FMLA, based upon the company's removal of plaintiff's FWA. The motion is due to be GRANTED in all other respects. The defendant's motion to strike plaintiff's evidentiary submission in opposition to summary judgment is due to be GRANTED IN PART and DENIED IN PART. A separate order, consistent with this memorandum opinion, will be entered contemporaneously herewith.