VIRGINIA EMERSON HOPKINS, District Judge.
This is a civil action brought by the plaintiff, Randi A. Abbott, against the defendants, Elwood Staffing Services, Inc. ("Elwood"), and Honda Manufacturing of Alabama, LLC ("HMA"). (Doc. 53 at 1). The Third Amended Complaint was filed on October 24, 2013. It alleges the following claims against both Elwood and HMA: "Failure to Accommodate on the Basis of Pregnancy/Sex-Pregnancy Discrimination Act/Title VII" (Count One); "Unlawful Termination of Employment on the Basis of Pregnancy/Sex-Pregnancy Discrimination Act/Title VII" (Count Two); "Failure to Accommodate on the Basis of Disability-Americans with Disabilities Act" (Count Three); "Unlawful Termination on the Basis of Disability-Americans with Disabilities Act" (Count Four); "Retaliation on the Basis of Pregnancy/Sex-Pregnancy Discrimination Act/Title VII" (Count Five); "Retaliation on the Basis of Disability-ADA" (Count Six); and "Retaliation on the Basis of Race-Title VII/Section 1981" (Count Seven). (Doc. 53 at 2-13). As to HMA alone, the Third Amended Complaint alleges "Discrimination on the Basis of Race-Title VII/Section 1981" (Count Eight). Against Elwood alone, the Third Amended Complaint alleges "Retaliatory Discharge: § 25-5-11.1, Alabama Code 1975" (Count Nine). All counts arise out of the plaintiff's employment at an HMA facility.
The case comes before the court on the motions for summary judgment filed by the defendants. (Docs. 57, 60). Also before the court is Elwood's objections to portions of the evidence submitted by the plaintiff in opposition to the motions for summary judgment (doc. 67), and HMA's motion to strike portions of that evidence (doc. 69). For the reasons stated herein, Elwood's objections and HMA's motion to strike will both be treated as objections and will be
As explained above, and in this court's order of August 9, 2013 (doc. 50), the court treats both the objections, and the motion to strike, as objections under Federal Rule of Civil Procedure Rule 56(c)(2). Pursuant to that rule, "[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). The advisory committee's note to Rule 56(c)(2) provide that:
Fed.R.Civ.P. 56 advisory committee's note to 2010 amendments (emphasis added); see also, Priest v. U.S. Sec. Associates Inc., 5:11-CV-03938-HGD, 2014 WL 800900 at *1 (N.D.Ala. Feb. 28, 2014) (Davis, M.J.); Riley v. Univ. of Alabama Health Servs. Found., P.C., 990 F.Supp.2d 1177, 1186-87 (N.D.Ala.2014) (Hopkins, J.); Peeler v. KVH Indus., Inc., 8:12-CV-1584-T-33TGW, 2013 WL 3871420 at *8 (M.D.Fla. July 25, 2013) on reconsideration in part, 8:12-CV-1584-T-33TGW,
Despite the clear burden on the plaintiff, she writes:
(Doc. 70 at 1). As will be shown below, the plaintiff's failure to address the defendants' objections "line-by-line," almost always equates to a failure to show that the proffered evidence is admissible as presented or to explain the admissible form of the evidence that is anticipated. In its discussion of the evidence, the court will note where that has happened.
Similarly, the defendants sometimes argue that certain pieces of evidence are inadmissible, but never cite to specific portions of the evidence — instead focusing only on the "facts" submitted by the plaintiff which cite such evidence. Without a specific citation, the court cannot determine what, if anything, needs to be stricken. At other times, the defendants argue that some evidence does not support the proposition for which it is cited. While that may be a reason for the court not to adopt that proposition, it is not a reason to strike the evidence. These circumstances, too, will be noted by the court in its examination of the evidence.
As part of her submissions in opposition to the motions for summary judgment, the plaintiff submits several pages of handwritten notes, written by her, which memorialize the events of several days in July and August of 2011. (Doc. 64-2 at 1-4). Both defendants object to the consideration of the notes, in part, because they are hearsay, and because they cannot be made admissible at trial. (Doc. 67 at 3-4; doc. 69 at 5, 7; doc. 71 at 3). The plaintiff does not respond to the argument that the notes are hearsay, stating only:
(Doc. 70 at 2).
The plaintiff has not shown that the notes, and the statements therein, are either not hearsay, or fall within some exception to the hearsay rule. Thus, the plaintiff has failed to satisfy her burden "to show that the material is admissible as presented or to explain the admissible form that is anticipated," Fed.R.Civ.P. 56 advisory committee's note to 2010 amendments (emphasis omitted).
In addition, the court has reviewed the notes and affirmatively finds that they
Wyant v. Burlington N. Santa Fe R.R., 210 F.Supp.2d 1263, 1275-76 (N.D.Ala. 2002) (Ott, M.J.). Further, portions of the notes constitute double hearsay. For double hearsay to be admissible, "`each part of the combined statements [must] conform [] with an exception to the hearsay rule.'" United Technologies Corp. v. Mazer, 556 F.3d 1260, 1280 (11th Cir.2009) (quoting Fed.R.Evid. 805). Further still, the notes are unsworn, and the court does not consider unsworn statements. Dudley v. City of Monroeville, 446 Fed.Appx. 204, 207 (11th Cir.2011) ("Unsworn statements do not meet the requirements of Rule 56, so the district court could not — and properly did not — rely on the content of the citizen's [unsworn] statement.") (citing Carr v. Tatangelo, 338 F.3d 1259, 1273 n. 27 (11th Cir.2003)).
The objections to the notes (doc. 64-2 at 1-4) are
In response to the motion for summary judgment the plaintiff proffers document 64-3, which includes notes made, at least in part, by Alan Balmer, Elwood's Vice-President of its Workforce Solutions division. (Doc. 39-2 at 5(7)).
HMA and Elwood argue that the entire exhibit is unauthenticated, and therefore should not be considered. In its reply brief, HMA cites to Saunders v. Emory Healthcare, Inc., 360 Fed.Appx. 110, 113 (11th Cir.2010), where the Eleventh Circuit, citing to Fed.R.Civ.P. 56(e) as it existed at that time, wrote:
Saunders, 360 Fed.Appx. at 113.
First, Balmer testified in his deposition that he created this document, but only down to the black line which appears on
Further, authentication is not required at the summary judgment stage. Rule 56(e) was amended in 2010. It has been noted:
Foreword Magazine, Inc. v. OverDrive, Inc., 2011 WL 5169384, at *2 (W.D.Mich. 2011).
In re Gregg, 11-40125-JTL, 2013 WL 3989061 at *2-4 (Bankr.M.D.Ga. July 2, 2013) (Laney, C.B.J.). The court agrees with this well reasoned approach, and notes that the defendants do not argue that the document cannot be authenticated. The objections, to the extent that they are based upon the document not being authenticated, are
HMA argues:
(Doc. 69 at 8, n. 20). HMA then argues:
(Doc. 69 at 7-10) (footnotes omitted) (emphasis in original). Except in two footnotes, HMA never cites to the exhibit in question. The objection's reference to the plaintiff's brief in opposition to the motion for summary judgment provides no help either, since, as noted by the defendant, in her brief the plaintiff only generally cites to her exhibit without a pinpoint cite.
As indicated, HMA includes two footnotes which do reference a portion of the exhibit. The first is footnote 24, which references the portion of the notes which reads: "Randi Abbott told TC Issac [Henderson] that she started spotting after doing her process." (Doc. 69 at 9, n. 24) (quoting 64-3 at 1). The defendant argues that this statement is hearsay to the extent that it is offered to prove that the plaintiff actually started spotting after doing her process. The plaintiff does not
The only other specific section noted by HMA appears in footnote 26, which reads: "She presented a `doctor's note' on 8/11/11 (the note is dated 8/10/11 that indicates Randi is pregnant and needs to empty her bladder more often and will need to be able to use the restroom as needed.") (Doc. 69 at 9 n. 26) (quoting 64-3 at 2). Again, the defendant argues that, to the extent that the statement is offered to prove what was stated in the note, it is hearsay. Again, the plaintiff does not respond to this argument. Because the plaintiff has failed to carry her burden on this issue, and because the court affirmatively finds that the statement regarding the contents of the doctor's note is hearsay, subject to no exceptions, the objection is
Elwood writes: "The portions of Balmer's notes which he did not draft and the author of which is unknown, is hearsay." (Doc. 67 at 7). Assuming that is true, because the objection does not argue that that portion of the document cannot be made admissible, it fails. In re Gregg, 2013 WL 3989061 at *2-4.
Like the arguments presented by the defendants to strike the Balmer Notes, the arguments presented by HMA in opposition to the plaintiff's injury report also appear to mainly argue that the report does not support the proposition for which it is cited in the plaintiff's brief. (Doc. 69 at 4 (¶1), 5 (¶¶ 2-3)). Again, to that extent, the court will address those arguments when considering which facts to include in its opinion on the motion for summary judgment. Elwood's objections include the following paragraph:
(Doc. 67 at 7(¶ 14)). As far the court can tell, this paragraph, which is Elwood's first paragraph in this section, gives no reason
HMA argues that the report is "double hearsay, no exception applies, and cannot be used to prove that `straining to install doors caused [p]laintiff to experience bleeding.'" (Doc. 69 at 4). The plaintiff does not respond to this argument, except to say that HMA "does not explain why it attaches [this] label to the report." (Doc. 70 at 3-4).
The court disagrees with the plaintiff's argument that HMA has failed to explain why the report is hearsay. It identified the report (which is only one page long) and argues that it cannot be used to prove that "straining to install doors caused [p]laintiff to experience bleeding." This is a clear reference to three sections of the report. The first describes the "nature of the injury" as "abdominal strain caused spotting." (Doc. 64-1 at 1). The second described the task the plaintiff was doing as "while straining to install doors noticed spotting." (Doc. 64-1 at 1). The third notes that the injury occurred "from straining to install doors." (Doc. 64-1 at 1). It is clear that HMA is arguing that, to the extent that these portions of the report are cited to prove that the plaintiff started spotting because she was straining to install doors, they are hearsay. The plaintiff has made no attempt to show that the report is not hearsay, or to show that it falls within some exception to the rule. Further, the court affirmatively finds that, in the format presented,
Even assuming that the report is not hearsay, the report states that it was completed based upon information provided by the plaintiff. (Doc. 64-1 at 1). The plaintiff's conclusion, contained in the report, as to why she began spotting, is inadmissible expert testimony from a lay witness. See, Wingster v. Head, 318 Fed. Appx. 809, 815 (11th Cir.2009) ("[M]edical causation ... presents a technical and scientific issue that requires the specialized knowledge of an expert medical witness.") (citing Fed.R.Evid. 701, 702; Webster v. Offshore Food Serv., 434 F.2d 1191, 1193 (5th Cir.1970)); E.C. ex rel. Crocker v. Child Dev. Sch., Inc., 3:10-CV759-WKW, 2011 WL 4501560 at *9 (M.D.Ala. Sept. 29, 2011) ("[A] lay witness [cannot establish medical causation] ... or provide evidence that could be used as the basis for an inference of medical causation."). This argument too was presented by both defendants. (Doc. 67 at 7; doc. 69 at 5). Again, the plaintiff does not respond to this specific argument and so has not carried her burden on this issue. The objections to the report are
The plaintiff cites statements made in her narrative attached to her EEOC charge. She insists that the charge is properly authenticated and has been signed under penalty of perjury. However, it has been noted:
Johnson v. AutoZone, Inc., 768 F.Supp.2d 1124, 1134 at n. 82 (N.D.Ala.2011) (Smith, J.); see also, Roxbury-Smellie v. Florida Dep't of Corr., 324 Fed.Appx. 783, 785 (11th Cir.2009) ("The statements made by [EEOC interviewees], did not fall into the public records exception because they were not a factual finding made by the EEOC investigator, but rather a record of the interviews conducted by the EEOC investigator.... Accordingly, the district court did not abuse its discretion when it determined the interview notes did not fall within the hearsay exception for public records."). The plaintiff does not explain how the charge could be reduced to an admissible form at trial. The objections to the admissibility of the charge are
The defendants attack the following sections of the plaintiff's deposition testimony:
(Doc. 62-1 at 24(89)-25(92)). It is clear from this testimony that the plaintiff had
The plaintiff argues that these statements are not hearsay because Rule 801(d)(2) of the Federal Rules of Evidence provides that a statement offered against an opposing party, as this one is, is not hearsay if it is made by the party's "employee on a matter within the scope of that relationship and while it is existed." The court notes that this rule only protects such statements once a proper foundation is laid. See, Champ v. Calhoun Cnty. Emergency Mgmt. Agency, 226 Fed.Appx. 908, 912 (11th Cir.2007) (statements inadmissible if "made by someone [only] generally identified as an agent or employee"). There is no foundation for citing the statements of "[e]veryone from the zones." Such a vague reference does not satisfy the plaintiff's burden. Similarly, although "Jessica" is at least identified, she is only identified by a first name, and, although she, like the plaintiff, performed "processes," her job title is not identified in the testimony, and the plaintiff has pointed to no other evidence which would provide a foundation for her statement.
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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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
The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir.2000). 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, 106 S.Ct. 2505. 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, 106 S.Ct. 2505.
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, 116 S.Ct. 2174, 135 L.Ed.2d 606 (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.
HMA employs approximately 4,000 individuals at its Lincoln, Alabama plant. Certain employees, called "Process Associates" and "MSTs" by the parties, work on the assembly line, and are engaged in the daily tasks of assembling Honda Odyssey,
Elwood serves as a staffing agency for HMA, and provides a contingent workforce based on the labor needs of HMA. Elwood associates work with HMA associates to perform their production processes. Individuals who work directly for HMA have no relationship to Elwood. They are subject to different terms and conditions of employment than Elwood associates who work for HMA. (Doc. 59-5 at 3). HMA can bring information to Elwood about Elwood associates, which could be taken into consideration on employment issues. (Doc. 39-2 at 16(52)). However, Elwood is responsible for hiring, disciplining, compensating, and terminating its temporary associates assigned to HMA. Elwood employs on-site supervisors at HMA that supervise Elwood's temporary associates assigned to work at HMA. HMA plays no role in the administration of FMLA leave to Elwood associates. It is undisputed that, at all times during an assignment, Elwood associates remained employees of Elwood and could have their assignment ended only by Elwood.
Elwood associates who complete a certain number of hours, fulfill attendance requirements, and have satisfactory performance, may submit an application for employment at HMA, but are not guaranteed a position. Other than to provide HMA with performance evaluations, Elwood has no role in the permanent placement of employees with HMA. (Doc. 39-2 at 16(53)).
At all relevant times, HMA has had in effect an Equal Employment Opportunity Policy and Mutual Respect Policy, both of which strictly prohibit any form of discrimination and harassment in all terms and conditions of employment, including, but not limited to, discrimination and harassment based upon pregnancy, sex, race, and disability. The policies require an associate that believes he or she has been the target of, or who has observed, any form of discrimination or harassment to immediately report it to his or her Team Manager, Department Manager, an Associate Relations Representative, or the Department Manager of Human Resources. The policies also prohibit any form of retaliation against an associate who reports a concern about discrimination or harassment. The policies are found in HMA's Associate Handbook, and are distributed to associates upon hire.
Elwood trains all new hires assigned to HMA on discrimination and harassment and how to report such claims. At the outset of their assignment, Elwood associates receive an Assignment Guidebook and in-person training, which explains HMA's Mutual Respect Policy and tells them to whom they must report concerns. Elwood associate concerns must be immediately reported to the Elwood On-Site Manager or On-Site Supervisor, the HMA Team Manager, or an HMA Associate Relations Representative. Elwood's Assignment Guide Book ("the Guide Book"), which is provided to all new Elwood hires assigned to HMA, prohibits harassment on any unlawful basis as well as unlawful retaliation. The Guide Book contains a disclaimer making clear that: "[a]ssignments can end at any time;" Elwood "reserves the right to alter its policies and procedures at any
HMA provides a restriction placement search for associates who may be ADA-qualified or have permanent restrictions due to an occupational injury. HMA only creates so called "light duty" assignments for associates who have suffered compensable on-the-job injuries. (Doc. 62-5 at 3).
Elwood provides light duty in instances where its employees suffer an on-the-job injury, of which it is made aware, who need restrictions in order to continue working. (Doc. 36-4 at 19(65)). Additionally, Elwood engages in an interactive process to determine whether it can reasonably accommodate qualified individuals with disabilities as defined by the Americans With Disabilities Act. (Doc. 59-5 at 3). With regard to non-work-related medical conditions, including pregnancy, Elwood tries to work with its client locations to see if the associate's personal restrictions can be met, but it does not have a formal "light duty" program for personal medical restrictions. (Doc. 36-4 at 20(66)). Elwood handles requests for personal medical restrictions related to pregnancy in the same manner it handles requests for personal medical restrictions related to other non-work-related condition. (Doc. 59-5 at 3).
The plaintiff began working at the HMA facility on or about July 15, 2010, in the
MSTs generally were assigned four different two-hour processes each shift. The processes were rotated between employees "for ergonomical purposes because being on certain processes for a certain period of time prolonged can cause serious damage." (Doc. 39-1 at 76(295)). Accordingly, every 2 hours the plaintiff would stop working on one process and rotate to another. The plaintiff testified that the process rotation schedule was "supposed to be generated by [a] computer program," but that during her assignment it was done "[w]ith physical changes ... to it." (Doc. 39-1 at 76(294)). She explained that "physical changes" meant "[r]emoving people off line through the system to make sure the rotation was still balanced out." (Doc. 39-1 at 76(294)). Elwood plays no role in the process-rotation schedule or in the assignment of processes.
At different times while she was at HMA, the plaintiff worked on three models of vehicles: Accords, Pilots, and Ridgelines. She was certified to perform five processes which she identified as: "left front door," "left roof rail," "assist side cowl top," "installing DVD players," and "placing vehicle identification numbers on the vehicles." Her processes required her to lift, bend, and climb in and out of vehicles on a rotating basis. She did these same 5 processes the entire time she worked in the HMA plant. (Doc. 39-1 at 16(56-57)). As to what processes her co-employees were certified, or "signed off on" to perform, the plaintiff stated: "Like we all signed off on a list, but unless the same person did the same thing you wouldn't know it because you wouldn't be seeing it assigned." (Doc. 39-1 at 76(294)).
Elwood too had direct supervision over the plaintiff while she worked at the HMA plant. Elwood employed Alan Balmer, who is white, as a project plant manager at HMA. Additionally, Elwood employed several persons in the position of "On-Site Supervisor" ("OSS"), including Casey Green, Robin Webb, B.B. Campbell, and Amanda Souza. Green, Webb, Souza, and Campbell are all white. On-Site Supervisors are responsible for administering Elwood's policies and overseeing the staffing program on a daily basis. Balmer stated in his deposition that only "Elwood," and particularly Green, Webb, Souza, Campbell, and himself, had the authority to issue discipline to the plaintiff. (Doc. 39-2 at 16(52-53)).
When the plaintiff began her position at HMA she understood that she was not
Plaintiff has no complaint about her treatment by Elwood or HMA prior to April 2011. At that time, she learned that she was pregnant and informed Henderson shortly thereafter. Thereafter, before July 21, 2011, but after she became pregnant,
The plaintiff states that she was able to perform all functions of her job up until July 21, 2011. (Doc. 39-1 at 28 (103-104)). On July 21, 2011, the plaintiff began her shift at 4:30 p.m. Late in her shift, the plaintiff had to strain while installing doors on a Ridgeline vehicle. She later went to the restroom and discovered that she was experiencing vaginal bleeding. (Doc. 39-1 at 38(143)).
The plaintiff was seen by her outside doctor that night. The plaintiff testified that her doctor gave her "[j]ust basic treatment to make sure that everything was okay." (Doc. 39-1 at 56(217)). The doctor "said I could go back to work, just whatever that I was doing don't do that again, like take it real easy, let them know that it's an issue." (Doc. 39-1 at 39(149)). The doctor told her that "whatever [she] did to stress it and strain it, don't do it for a few days." (Doc. 39-1 at 83(323)).
She reported back to work the next day before beginning her shift at the regular time. However, from then on her ability to work was affected. She stated that
(Doc. 39-1 at 29(107)). She testified:
(Doc. 39-1 at 28(104-105)).
The plaintiff was not undergoing any kind of "treatment" for anything related to the spotting except normal prenatal care. (Doc. 39-1 at 56(217)). She had no further complications and nothing else happened during that time. She was given no medication and had only one follow up a week later to make sure the bleeding had stopped. (Doc. 39-1 at 56(217)).
The plaintiff states that the day she came back to work "I had to report to Casey or Robin, whichever one it was, and then go out on the line and that's when I said who is going to be paying the medical bill." (Doc. 39-1 at 30(111)). The following exchange took place in her deposition:
(Doc. 39-1 at 15(50-51)). Neither HMA nor Elwood ever treated the July 21 incident as an on-the-job injury; a First Report of Injury was never completed.
The plaintiff stated that her request for light duty was "to keep [her] from further stressing [her] pregnancy," and to prevent "complications." (Doc. 39-1 at 44(167), 53(203), 28(104)). Balmer asked the plaintiff to bring in specific information about her request for "light duty."
On August 11, 2011,
(Doc. 39-2 at 37). Again, that same day, Sanders responded: "Maybe AT Label. But she would have to bend over to install some of the labels. So, really none." (Doc. 39-2 at 37).
Henderson and Sanders both stated in their affidavits that they are familiar with the following processes performed within the plaintiff's zone: Left Front Door, Right Roof Rail, Assist Side Cowl Top, Right Roof Mold, RES, and AT Label. (Doc. 62-3 at 4; 62-4 at 5). They both stated that "[a]ll of these processes require the associate performing them to bend. Most of these processes require the associate to bend, lift, and/or climb in or out of vehicles." (Doc. 62-3 at 4-5; 62-4 at 5).
The plaintiff agreed that her "regular job duties as they were then in AF required some amount of lifting 25 pounds and some amount of climbing in and out of cars and bending." (Doc. 39-1 at 54(206)) (emphasis added). One of these processes, installing DVD players, required her to climb in and out of cars. (Doc. 39-1 at 53(205)). She agreed that this was a process she could not do. (Doc. 39-1 at 53(205)). When installing doors, she would have to lift weights up to and greater than 25 pounds. (Doc. 39-1 at 53(205)). She also testified that "[t]he bending had part
(Doc. 39-1 at 56(215)). In her deposition, she was clear that she did not know what HMA did to try to accommodate her restrictions. (Doc. 39-1 at 81(316)).
At the time of the events at issue in this action, Kimberly White was employed by HMA as an Associate Administrator of Associate Relations at the plant. (Doc. 62-5 at 2). Her job included various human resources functions. (Doc. 62-5 at 2). In her affidavit she stated:
(Doc. 62-5 at 7-8).
On August 17, 2011, Balmer e-mailed the Oxford Elwood Branch to see if there were any available positions with other clients which would meet the plaintiff's personal medical restrictions. (Doc. 59-5 at 4). He then called the branch office and learned that there were no such assignments available. (Doc. 59-5 at 4). Balmer also sent an e-mail to White asking if there were any other positions at HMA where the plaintiff could work within her restrictions. White responded that HMA could not accommodate the plaintiff's specific personal medical restrictions. The plaintiff specifically inquired with Elwood about a job as a receptionist that she thought she could do with her restrictions, but Elwood told her that "it couldn't meet [her] restrictions either." (Doc. 39-1 at 43(164-165)).
Because the plaintiff could not perform her processes at HMA, and because Elwood had no other positions available which could meet her personal medical restrictions, she was approved to take FMLA leave based on her FMLA Certification. (Doc. 59-5 at 4). Elwood approved the plaintiff's request for FMLA leave associated with her pregnancy starting August 15, 2011, and she received twelve weeks of FMLA leave. The extent of her FMLA retaliation claim is that she was required to take her FMLA leave "too early," which meant she did not have leave available to cover her recovery time after childbirth.
On November 9, 2011, Balmer informed the plaintiff that she had exhausted her FMLA leave. (Doc. 39-1 at 55(210)).
The plaintiff made clear to Balmer that she was scheduled for a C section approximately two weeks after her FMLA leave expired. She told Balmer that her recovery period would be over in February 2012, when her restrictions would be lifted. Balmer told the plaintiff that if she wanted to be considered for future assignments with Elwood, she would need to contact the Oxford branch office. Balmer further instructed the plaintiff that, if she wanted to return to work at HMA, she would need to provide information from her physician that her restrictions had changed.
The plaintiff gave birth to her child on November 22, 2011. She was released to work full duty in February 2012. At that time, the plaintiff was on "inactive" status with Elwood but would be eligible for assignment upon contacting Elwood to update her file. The plaintiff contacted the Oxford branch office in February 2012, and informed it that her restrictions had been lifted and that she was available to work. (Doc. 39-1 at 55(212), 57(219)). She called back a few weeks later to ask if there were any positions available for her and was told "they would have to get back with [her] on that." (Doc. 39-1 at 57(221)). In her affidavit, the plaintiff states that, in May 2013, she "contacted the Montgomery office of Elwood Staffing Services and requested to be placed back on active status." (Doc. 64-5 at 1). She states that she "received an email from Elwood on May 15, 2013 informing [her] that Elwood would contact [her] when `an opening comes available that matches your skills and work experience.'" (Doc. 64-5 at 1-2). She states that "Elwood has not contacted me since receipt of the May 15 email." (Doc. 64-5 at 2).
The plaintiff has never contacted anyone at HMA regarding her restrictions being lifted, or her ability to work. (Doc. 39-1 at 82(318); doc. 62-5 at 8). It is undisputed that HMA played no role in any attempt by the plaintiff to be assigned to another Elwood client company.
The plaintiff identified Josh Wade as a male associate who she believes was provided a light duty assignment. (Doc. 39-1 at 18(64)).
It is undisputed that the plaintiff understood that, if she experienced unlawful treatment, she should report her concerns to an OSS, her HMA Team Coordinator, her HMA Team Manager, or HMA's Human Resources personnel. Still, the plaintiff never made a complaint of pregnancy, sex, race, or disability discrimination or harassment under HMA's Mutual Respect Policy. (Doc. 62-3 at 8; 62-4 at 9; 62-5 at 10). The following exchange took place in the plaintiff's deposition:
(Doc. 39-1 at 68(263)-69(266)). On August 7, 2011, the plaintiff sent an e-mail to OSS Webb stating simply that she was "filling [sic] a report to EEOC about pregnancy discrimination;" she provided no other substantive information in this e-mail. That e-mail stated: "I know you have no idea what is going on."
At no time did Elwood attempt to place the plaintiff on assignment at HMA following her release to full duty. Numerous Elwood and HMA associates have taken FMLA leave related to pregnancy and returned to work at HMA.
The plaintiff testified that no one ever told her that she was fired or could not come back. (Doc. 39-1 at 34(128)). In May 2013, after Balmer claimed in his deposition that the plaintiff was on inactive status, she again attempted to gain reinstatement but has received no offer to return to work. Elwood receives weekly orders from HMA for a set number of associates — sometimes for as many as 80 per week. (Doc. 39-2 at 8(21)-9(23)). Elwood sent the plaintiff an email on May 15, 2013, informing her that it would contact her when "an opening comes available that matches [her] skills and work experience." (Doc. 64-5 at 1). Since that email, Elwood has not contacted the plaintiff. (Doc. 64-5 at 1). When asked in his deposition whether he received such requests in February and March 2012, Balmer stated: "I don't have a specific memory of it, I mean, typically we received communication each week regarding whether the orders are zero or any number above zero, so most likely yes, but I don't have a specific recollection of that." (Doc. 39-2 at 19(62)).
The plaintiff testified: "I claim that I was fired for asking for my medical bills to be paid and I was harassed for restrictions. Like they wanted to see restrictions, I got restrictions. They wanted detailed restrictions, I got them detailed restrictions and next thing I know I wasn't working anymore." (Doc. 39-1 at 29(109)).
On October 10, 2013, the court noted that the Second Amended Complaint was "the quintessential `shotgun' pleading," and stated:
(Doc. 52 at 4). The court then ordered the plaintiff to file a Third Amended Complaint "which clearly (and separately) sets out each count, specifies the facts which apply to each count, and clearly states as to which defendant each count applies." (Doc. 52 at 5). Unfortunately, the Third Amended Complaint continues to miss the mark.
The problems with Count One begin at the beginning — the title of the claim. The plaintiff's first count
Next, despite this court's order to "clearly (and separately) set[] out each count, specif[y] the facts which apply to each count, and clearly state[] as to which defendant each count applies" (doc. 52 at 5), the Third Amended Complaint continues to lump together, in the same count, both defendants, and multiple allegations of wrongdoing.
Count One sets out three different acts of wrongdoing. The first alleged act is that, after the plaintiff "experienced bleeding from her vagina ... [she] requested an accommodation in the form of light duty [but] ... [i]nstead of putting her on light duty, [p]laintiff's supervisors returned [p]laintiff to regular duty putting on doors." (Doc. 53 at 3). This language does not explain which defendant is responsible for this alleged wrong and why. The answer cannot be discerned by merely looking at who employed the plaintiff's supervisors, since she was supervised by individuals employed by both defendants.
In addition, Count One adds an allegation that the plaintiff "was qualified for placement through Elwood at other positions that would have accommodated her restrictions but received no accommodation." (Doc. 53 at 3). This allegation seems to be directed only at Elwood, despite the fact that this count as a whole is supposedly is aimed at both defendants. Further, the allegation contains no facts or other specifics through which the court could discern for what positions the plaintiff was supposedly qualified with her restrictions, if she applied for those positions, when she applied, etc.
Because the plaintiff has repeatedly failed to comply with this court's orders, dismissal of Count One is appropriate. FED.R.CIV.P. 41(b); Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.1985). The court has, the best it can, reviewed the allegations of each count along with the arguments in the briefs, and determines that summary judgment is also appropriate on the merits of Count One. Accordingly, even if the plaintiff had requested leave to amend yet again, which she has not, amending the complaint would be futile.
Title VII provides:
42 U.S.C.A. § 2000e-2(a)(1). The Pregnancy Discrimination Act expanded the definition of the Title VII phrases "because of sex" and "on the basis of sex" to include "because of or on the basis of pregnancy, childbirth or related medical conditions." See, Newport News Shipbuilding & Dry Dock Co. v. E.E.O.C., 462 U.S. 669, 684, 103 S.Ct. 2622, 2631, 77 L.Ed.2d 89 (1983) ("The Pregnancy Discrimination Act has now made clear that, for all Title VII purposes, discrimination based on a woman's pregnancy is, on its face, discrimination because of her sex.") Accordingly, at its core, this count actually alleges only that the plaintiff was discriminated against because of her sex.
Where, as in this case, the plaintiff's case is based upon circumstantial (as opposed to direct) evidence, the court employs the familiar three part framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that framework,
Kidd v. Mando Am. Corp., 731 F.3d 1196, 1202 (11th Cir.2013). Further, in disparate treatment cases, such as this one, the plaintiff must prove discriminatory intent. E.E.O.C. v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1273 (11th Cir.2000). "In order to show discriminatory intent, a plaintiff must demonstrate that the decisionmaker... selected or reaffirmed a particular course of action at least in part "because of," not merely "in spite of," its adverse effects on an identifiable group." Joe's Stone Crab, Inc., 220 F.3d at 1273.
A prima facie case of pregnancy discrimination requires the plaintiff to show that: (1) she is a member of a group protected by Title VII; (2) she was qualified for the position or benefit sought; (3) she suffered an adverse effect on her employment; and (4) she suffered from a differential application of work or disciplinary rules. Sampath v. Immucor, Inc., 271 Fed.Appx. 955, 961 (11th Cir.2008) (citing Spivey v. Beverly Enterprises, Inc., 196 F.3d 1309, 1312 (11th Cir.1999)). In her brief, the plaintiff not only fails to set out and argue these elements, she does not even mention the McDonnell Douglas framework. Because the plaintiff has neither acknowledged nor attempted to satisfy her burden, her Title VII disparate treatment claims fail.
Despite the shotgun nature of this count, it is clear that the plaintiff alleges, albeit vaguely and conclusorily, that the defendant, or defendants, somehow and someway, refused light duty to the plaintiff after her spotting incident on July 21, 2011. However, even under the Pregnancy Discrimination Act, the plaintiff "was not entitled to a modified duty assignment solely because she was pregnant." McQueen v. AirTran Airways, Inc., 3:04-CV-00180-RS-EMT, 2005 WL 3591100 at *5 (N.D.Fla. Dec. 30, 2005) (Smoak, J.). "[A]n employer violates the [Pregnancy Discrimination Act] when it denies a pregnant employee a benefit generally available to temporarily disabled workers holding similar job positions." Spivey v. Beverly Enterprises, Inc., 196 F.3d 1309, 1313 (11th Cir.1999).
In a case with similar facts to the instant case, the court in Spivey explained:
Just like in Spivey, it is clear in this case that the plaintiff could not perform all of the duties of her job as a "process associate" or MST. HMA only provides light duty assignments to employees who have suffered on-the-job injuries. It was therefore free to deny light duty to the plaintiff as long as it did the same to other employees who were not injured on the job.
The plaintiff argues that this was an on-the-job injury, and cites the court to the example of Josh Wade, who was given a light duty assignment after such an injury. (Doc. 63 at 14-15). However, just because the plaintiff first noticed spotting while working, does not mean that she was "injured" at work, or that the work caused the injury.
The plaintiff's deposition testimony also clearly shows that her restrictions were only because of her pregnancy and not the result of an on-the-job injury. When asked in her deposition whether "the light duty restrictions [she] sought were simply because [she was] pregnant," she answered: "Yes, to keep me from further stressing my pregnancy." (Doc. 39-1 at 44(167)). Also, she stated that while she was still pregnant, she could not return to work. (Doc. 39-1 at 55(210)). Most tellingly, she testified that she was upset when Balmer asked her for more specific restrictions because
(Doc. 39-1 at 44(167)) (emphasis added). It is clear that the plaintiff merely wanted the same restrictions "as any other pregnant woman working at Honda," not special restrictions because of an on-the-job injury.
There is simply no evidence that HMA treated the plaintiff differently than any other non-pregnant employee with similar restrictions, who was not injured on the job. Any claim under the PDA and Title VII, again HMA, based upon the failure to provide the plaintiff with "light duty" fails on the merits.
The plaintiff's brief in response to the motion for summary judgment focuses on Elwood's failure to find the plaintiff another assignment that met her restrictions, not the failure to give her light duty at HMA. Regardless, it is undisputed that Elwood has no control over the processes which were assigned to the plaintiff at HMA. The plaintiff has made no argument that Elwood otherwise should be held responsible for not giving the plaintiff light duty at HMA. Summary judgment therefore is appropriate for Elwood to the extent that the plaintiff alleges that it is responsible for the failure to assign the plaintiff to light duty at HMA.
The plain wording of the complaint indicates that this claim is brought only against Elwood. Further, it is undisputed that HMA played no role in any attempt by the plaintiff to be assigned to another Elwood client company. Summary judgment is due on Count One, in favor of HMA, to the extent that count is based on these allegations.
Elwood provides light duty in instances where its employees suffer an on-the-job injury, of which it is made aware, who need restrictions in order to continue working. Additionally, Elwood engages in an interactive process to determine whether it can reasonably accommodate qualified individuals with disabilities as defined by the Americans With Disabilities Act. With regard to non-work-related medical conditions, including pregnancy, Elwood tries to work with its client locations to see if the associate's personal restrictions can be met, but it does not have a formal "light duty" program for personal medical restrictions. Elwood handles requests for personal medical restrictions related to pregnancy in the same manner it handles requests for personal medical restrictions related to other non-work-related conditions.
On August 17, 2011, Balmer e-mailed the Oxford Elwood Branch to see if there were any available positions with other clients which would meet the plaintiff's personal medical restrictions. (Doc. 59-5 at 4). He then called the branch office and learned that there were no such assignments available. (Doc. 59-5 at 4). Balmer also sent an e-mail to White asking if there were any other positions at HMA where the plaintiff could work within her restrictions. White responded that HMA could not accommodate the plaintiff's specific personal medical restrictions.
The plaintiff cites only one other job which she claims Elwood had, but did not give her. She argues that she specifically inquired with Elwood about a job as a receptionist that she thought she could do with her restrictions. (Doc. 63 at 16). Elwood informed her that "it couldn't meet [her] restrictions either." (Doc. 39-1 at 43(164-165)). The plaintiff cites no evidence as to where this job was located, or what the requirements of this job were. She has not shown that she could have performed the duties of this job with her restrictions. Regardless, even if she could perform the requirements of the receptionist job, she has not shown that her pregnancy was the reason she was denied the job. Further, she has not shown that other,
Summary judgment is appropriate in favor of Elwood as to Count One, to the extent that it is based upon these allegations.
The plaintiff states that "[d]efendants also denied [p]laintiff's reasonable request for extended unpaid leave until she had recovered form her pregnancy." (Doc. 53 at 3). It is undisputed that HMA played no role in the administration of FMLA leave to Elwood associates. Summary judgment in favor of HMA is appropriate on Count One to the extent that it is based on these allegations.
The evidence is undisputed that, after Balmer tried to find positions which met the plaintiff's restrictions and found none, he approved the plaintiff to take FLMA leave. The plaintiff's brief does not address the claim that Elwood failed to extend the leave.
Summary judgment in favor of Elwood is appropriate on Count One to the extent that it is based on these allegations.
Even assuming that the plaintiff has established a prima facie case of discrimination, HMA states that it did not give the plaintiff light duty because it never gives employees light duty when they are not injured on the job. Elwood argues that it did not place the plaintiff in any other assignments because none were available.
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087-88 (11th Cir.2004) (citations omitted). "[A] reason cannot be proved to be "a pretext for discrimination" unless it is shown both that the reason was false, and that discrimination was the real reason."
The plaintiff makes no argument, much less a showing, that these reasons were a mere pretext for discrimination.
This count alleges that the plaintiff was terminated after her FMLA leave expired. She contends that Elwood forced her to take her FMLA leave early, so that it would be exhausted before her child was born. (Doc. 63 at 17). Then, the argument goes, when the plaintiff did not return to work, it could, and did, terminate her. However, the count also alleges that the defendants refused to accommodate her with light duty after her leave expired. The count is brought against both defendants.
Like Count One, Count Two is "shotgun" in nature as it lumps both defendants together, and appears to allege multiple acts of wrongdoing without specifying each defendant's culpability separately. It is due to be dismissed as not in compliance with this court's order of October 10, 2013 (doc. 52). FED.R.CIV.P. 41(b). Further, the plaintiff fails to set out and argue the elements of her claim under the McDonnell Douglas framework. Because the plaintiff has neither acknowledged nor attempted to satisfy her burden, her Title VII claims fail for that additional reason. For the reasons shown below, the count is also due to be dismissed on its merits.
These allegations were addressed in the previous section. Both defendants are due summary judgment on Count Two to the extent that it is based on these allegations.
It is undisputed that HMA had nothing to do with the plaintiff's FMLA leave. As to HMA, summary judgment is appropriate on Count Two to the extent that it is based on these allegations.
In her brief in opposition to the motion for summary judgment, the plaintiff discusses termination in the context of Title VII only in passing, in one paragraph. (Doc. 63 at 17) ("I believe it is the intention of Elwood ... to force me to exhaust my FMLA leave before the child is born, and then, when I am out for more than twelve weeks, to terminate me."). As with Count One, the plaintiff makes no attempt to set out, or prove, the prima facie elements of her termination claim. She therefore has not satisfied her initial burden and summary judgment is appropriate. Even if she had, there is no evidence that the plaintiff has in fact been "terminated." Indeed, the evidence establishes
Finally, as noted above, Elwood argues that it did not place the plaintiff in any other assignments because none were available. The plaintiff has not argued or shown that this reason was a mere pretext for discrimination. Summary judgment is appropriate as to Elwood on Count Two to the extent that it is based on these allegations.
In Counts Three and Four the plaintiff shifts from referring to herself as injured on the job, to having a "disability" under the Americans With Disabilities Act (the "ADA"). Count Three alleges that the plaintiff was not given a reasonable accommodation of light duty; Count Four alleges that the plaintiff was terminated after her FMLA leave expired while Josh Wade was allowed to remain.
Again, Counts Three and Four are "shotgun" in nature as they lump both defendants together without specifying each defendant's culpability separately. They are due to be dismissed as not in compliance with this court's order of October 10, 2013 (doc. 52). FED.R.CIV.P. 41(b). Further, the plaintiff fails to set out and argue the elements of her claim under the McDonnell Douglas framework.
"To establish a prima facie case of discrimination under the ADA, a plaintiff must show: (1) he is disabled; (2) he is a qualified individual; and (3) he was subjected to unlawful discrimination because of his disability." Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1255-56 (11th Cir.2007). The defendants correctly argue that the plaintiff cannot show that she was "disabled" under the ADA. Among other things, the ADA defines a "disability" as "a physical or mental impairment that substantially limits one or more ... major life activities," 42 U.S.C. § 12102(2)(A).
29 C.F.R. § 1630.2(i)(1)-(2). The ADA Amendments Act of 2008 ("ADAAA") was intended to make it easier for plaintiffs to prove they are disabled under the ADA. 29 C.F.R. Part 1630, App. § 1630.2(g) (citing 154 Cong. Rec. 13,766 (2008) (Joint Statement of Reps. Hoyer and Sensenbrenner on the origins of the ADA Restoration Act of 2008, H.R. 3195) ("the primary purpose of the ADAAA is to make it easier for people with disabilities to obtain protections under the ADA")). The ADA, as amended by the ADAAA, provides that a disability "shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter." 42 U.S.C. § 12102(4)(A); 29 C.F.R. § 1630.1(c)(4). The EEOC has further explained that the "substantially limits" requirement is to be "construed broadly in favor of expansive coverage" and "is not meant to be a demanding standard." 29 C.F.R. § 1630.2(j)(1)(i). Additionally, the term "`major [life activity]' shall not be interpreted strictly to create a demanding standard for disability." Id. § 1630.2(i)(2).
"Pregnancy, absent unusual circumstances, is not considered a disability under the ADA." Mayorga v. Alorica, Inc., 12-21578-CIV, 2012 WL 3043021 at *5 (S.D.Fla. July 25, 2012). However, under the ADA and the ADAAA, a pregnancy-related impairment may be considered a disability, if it substantially limits a major life activity. 29 C.F.R. pt. 1630, App. § 1630.2(h) (emphasis added). The plaintiff acknowledges in her brief that a pregnancy related impairment must substantially limit a major life activity. (Doc. 63 at 18). She then argues:
(Doc. 63 at 18-19).
The plaintiff's argument misses the point. First, there is no evidence that the plaintiff's pregnancy was not "healthy," or that there was some complication or other issue regarding her pregnancy. In support of her position that her condition is disabling, the plaintiff cites Mayorga v. Alorica, Inc., 2012 WL 3043021. In that case, the plaintiff, Mayorga, had suffered complications during her previous pregnancies. Because of this, "Mayorga's obstetrician determined that her pregnancy
Id. at *6.
The facts of the instant case are easily distinguishable from those in Mayorga. The plaintiff has provided evidence of only one incident of spotting, and only one trip to the doctor. She has produced no evidence that she experienced the kind of "pregnancy related symptoms" as the plaintiff in Mayorga. Further, Mayorga was decided on a motion to dismiss, whereas this case is before the undersigned on a developed evidentiary record at summary judgment.
Further, even assuming that the plaintiff had a pregnancy related impairment, the plaintiff was not suffering from a disability unless that impairment substantially limits a major life activity. The plaintiff fails to argue that any major life activity was so limited.
Finally, and tellingly, in her deposition the plaintiff stated that her condition "wasn't a disability, it was pregnant and on-the-job injury, I wasn't disabled. I was at all times physically able to work with requirements and restrictions." (Doc. 39-1 at 28(103)). She never considered herself disabled when she was at HMA. (Doc. 39-1 at 28(103)). She also stated that she was limited to light duty "solely as a result of [her] pregnancy."
Because the plaintiff was not "disabled" under the ADA, Summary Judgment is appropriate in favor of the defendants as to Counts Three and Four.
The plaintiff claims that her termination/lack of being placed in another assignment, was in retaliation for complaints and charges to the EEOC. (Doc. 53 at 9-12). The counts are brought against both defendants. As with the previous counts, these counts are "shotgun" in nature as they lump both defendants together without specifying each defendant's culpability separately. They are therefore due to be dismissed as not in compliance with this court's order of October 10, 2013 (doc. 52). FED.R.CIV.P. 41(b). Further, the same McDonnell Douglas analysis applies to retaliation claims whether they are brought under Title VII, the ADA, or Section 1981. See, Bryant v. Jones, 575 F.3d 1281, 1307 (11th Cir.2009); Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir.1997). Summary judgment is also appropriate because the plaintiff does not set out this framework, or attempt to argue it. As shown below, summary judgment is also appropriate on the merits of these claims.
"[A] plaintiff alleging retaliation must first establish a prima facie case by showing that: (1) he engaged in a statutorily protected activity; (2) he suffered an adverse employment action; and (3) he established a causal link between the protected activity and the adverse action." Bryant v. Jones, 575 F.3d 1281, 1307-08 (11th Cir.2009) (citing Raney v. Vinson Guard Serv. Inc., 120 F.3d 1192, 1196 (11th Cir.1997); Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir.1993)). In her brief, the plaintiff identifies two alleged acts of protected conduct. She states: "As noted above, [p]laintiff complained to the EEOC before her employment ended that she was being forced to use her FMLA leave though she had requested light duty." (Doc. 63 at 22). She further writes that she "additionally engaged in protected activity when she filed her second EEOC charge in November 2012." (Doc. 63 at 23).
The only alleged retaliatory conduct the plaintiff identifies in her brief is the failure of Elwood, initially and to this date, to place her in a new position.
The sole basis for the plaintiff's claim against Elwood is that it "terminated" her and/or has refused to place her in another assignment. However, the plaintiff is merely speculating that, because Elwood has not placed her into a position, that must mean that it is retaliating against her. She states that she contacted the Oxford office in February 2012, and informed it that her restrictions had been lifted and that she was available to work. (Doc. 39-1 at 55(212), 57(219)). She called back a few weeks later to ask if there were
Importantly, the plaintiff cannot show that any adverse employment action has been taken against her, because she has offered no evidence that, during this time, Elwood had any open positions, which matched her qualifications and experience, and which Elwood denied her because she had engaged in protected conduct. The best the plaintiff is able to do is point a section of Balmer's deposition where he states that, on a weekly basis, HMA would ask Elwood to send them a certain number of employees and that "[s]ome weeks it's zero [but] [i]t's been as many as maybe 80 in a week." (Doc. 39-2 at 9(22-23)). Nothing about this testimony narrows down how many employees HMA has actually asked for since the plaintiff left, what types of positions the employees were meant to fill, and if the plaintiff was qualified for any of those positions.
Further,
Butts v. Ameripath, Inc., 794 F.Supp.2d 1277, 1294 (S.D.Fla.2011). The plaintiff has not shown or argued that any persons who might have considered her for any alleged positions had any knowledge of her complaints to the EEOC.
Finally, the plaintiff has not shown that the reasons given for not rehiring her were pretextual. Elwood is entitled to summary judgment on Counts Five, Six, and Seven.
The plaintiff alleges this claim only against HMA. (Doc. 53 at 13). This claim is based only on the allegation that
The plaintiff does not set out these elements, and not attempted to satisfy her burden. Further, in this case, "Jessica" is the plaintiff's only comparator, and all evidence regarding Jessica's assignments, duties, etc. will be stricken. Summary judgment in favor of HMA on Count Eight is appropriate.
This claim is brought only against Elwood. (Doc. 53 at 14). It alleges that, after the plaintiff requested workers compensation benefits, "she was forced to go on unpaid FMLA leave and denied reasonable accommodation, after which she was not allowed to work for [d]efendants." (Doc. 53 at 14-15). The elements of this claim are: "1) an employment relationship, 2) an on-the-job injury, 3) knowledge on the part of the employer of the on-the-job injury, and 4) subsequent termination of employment based solely upon the employee's on-the-job injury and the filing of a workers' compensation claim." Alabama Power Co. v. Aldridge, 854 So.2d 554, 563 (Ala.2002). As shown above, the plaintiff did not have an "on-the-job" injury. She did not file a worker's compensation claim. Neither HMA nor Elwood ever treated the July 21 incident as an on-the-job injury; a First Report of Injury was never completed. Balmer stated in his deposition that he "never knew that Ms. Abbott suffered any purported on-the-job injury." (Doc. 59-5 at 4). Further, the plaintiff has not shown that the reason she has not gotten more positions was because she allegedly applied for workers compensation benefits. Indeed, as noted above, she did not apply for workers' compensation benefits. Additionally, she has not shown that there were any positions available. Summary judgment in favor of Elwood is appropriate as to this claim.
Based on the foregoing, the motion to strike/objections, treated by the court as objections to the evidence offered by the plaintiff in opposition to the motions for summary judgment, shall be disposed of as noted above. The motions for summary judgment shall be
(Doc. 69 at 10). Elwood similarly argues:
(Doc. 67 at 7). Again, because HMA and Elwood do not argue that these portions of the exhibit cannot be authenticated, the arguments fail.
HMA may also be arguing not that the exhibit is inadmissible, but that it does not support some proposition for which it is cited. Elwood makes that argument where it states:
(Doc. 67 at 6-7). To the extent that a reference to an exhibit does not support a "fact" proffered by a party, the court can and will address that issue in its statement of facts on the motion for summary judgment, without striking the exhibit.
(Doc. 69 at 11). This vague argument again addresses no specific portion of the exhibit and is therefore
FED.R.EVID. 803(6). No such showing has been made, argued, or even suggested.
(Doc. 63 at 3). This general denial of several facts is inadequate. The court's summary judgment scheduling order clearly states:
(Doc. 5 at 17) (emphasis in original). The court will not search through the record in an attempt to determine which evidence disputes what fact.
(Doc. 63 at 13). Exhibit 3 is Balmer's notes. (Doc. 64-3). Exhibit 1 is the aforementioned "injury report." (Doc. 64-1). As noted above, document 64-1 will be stricken to the extent that it is cited to prove the cause of the plaintiff's bleeding was an injury at work. The vague and general reference to exhibit 3, without pinpoint citation or further explanation, is insufficient. Rule 56 of the Federal Rules of Civil Procedure requires citation "to particular parts of materials in the record." FED. R. CIV. P. 56(c)(1)(A). Further, this court's summary judgment scheduling order has similar requirements. Doc. 5 at 16 ("All statements of fact must be supported by specific reference to evidentiary submissions."), 7 ("Any statements of fact that are disputed by the non-moving party must be followed by a specific reference to those portions of the evidentiary record upon which the dispute is based."), 18 ("Each statement of allegedly disputed facts must be followed by specific reference to those portions of the evidentiary record which both support and contradict the alleged fact."). The proffered facts will not be included.
(Doc. 39-2 at 18(60-61)).
(Doc. 63 at 3). This general denial of several facts, with the inclusion of argument, is inadequate to dispute the defendants' proffered facts. The court's summary judgment scheduling order clearly states:
(Doc. 5 at 17) (emphasis in original). The court will not search through the record in an attempt to determine which evidence disputes what fact.
(Doc. 63 at 13).
Id. at 487, n. 3 (quoting Ensley-Gaines v. Runyon, 100 F.3d 1220, 1226 (6th Cir.1996)). The Ensley-Gaines decision, and Latowski, are inconsistent with existing, and binding, Eleventh Circuit precedent in Spivey. Further, Ensley-Gaines, a 1996 opinion, was available to the Eleventh Circuit when it issued Spivey in 1999.
