KRISTI K. DuBOSE, District Judge.
This matter is before the Court on Plaintiff's motion for partial summary judgment (Docs. 39, 40, 41, 48), Defendants Cumulus Media, Inc. and Cumulus Broadcasting, LLC's Response (Doc. 49), and Plaintiff's Reply (Doc. 58); Defendants Cumulus Media, Inc. and Cumulus Broadcasting, LLC's' motion for summary judgment (Docs. 43, 44, 45), Plaintiff's Response (Docs. 50, 51, 52, 53, 55, 62) and Defendants Cumulus Media, Inc. and Cumulus
On June 17, 2010, Plaintiff Daphne Leslie ("Leslie") initiated this action against Defendants for legal and equitable relief to redress unlawful discrimination and harassment on the basis of sex, disability and retaliation. (Doc. 1). Specifically, Leslie asserts claims against the Cumulus Defendants for sexual harassment/hostile work environment in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Count I),
Cumulus Broadcasting, LLC ("Cumulus") is a radio broadcasting company which owns and operates radio stations in midsized markets throughout the United States, including in Mobile, Alabama ("the Mobile market"). (Doc. 43-1 (Dep. Pizzati (Senior VP) at 7, 32)).
Defendant Johnnie Coleman ("Coleman"), hired in 1999 and rehired in 2007 after a few years' absence, was employed by Cumulus in the Sales Department as a Cumulus Account Executive. (Doc. 43-10 (Dep. Coleman at 22-23); Doc. 43-1 (Dep. Pizzati at 68-69)). Coleman voluntarily resigned on March 2, 2009, after Cumulus' Senior Vice President and General Counsel Richard Denning ("Denning") investigated a January 12, 2009 e-mail text message (with attached photograph of his
On September 23, 2002, Daphne Leslie ("Leslie") began at-will employment with Cumulus as an Account Executive in the Sales Department. (Doc. 43-2 (Dep. Leslie at 21, 26-27); Doc. 43-2 at 51-53). Leslie's immediate supervisor was Mark McMillen ("McMillen"), and Leslie also worked under the direction and supervision of Cumulus Senior Vice President Gary Pizzati ("Pizzati"). (Doc. 43-2 (Dep. Leslie at 26, 96-97, 101-102); Doc. 43-1 (Dep. Pizzati at 7, 28)). Leslie's job responsibilities included developing new business, handling outside sales calls, attracting/closing advertisers to sell products and services, presenting marketing/advertising ideas to area businesses, selling commercial advertising time, attaining budgeted revenue goals, and subscribing to daily, weekly and monthly accountability requirements of the sales system. (Doc. 43-2 (Dep. Leslie at 47-48)). Regular work attendance was expected and was important for Leslie's job. (Id. (Dep. Leslie at 97)). Cumulus was flexible with its absentee policy, and employees such as Leslie could call in to the Sales Manager or Monte Saunders and self-designate available leave as sick or vacation days. (Id. (Dep. Leslie at 97-99)).
Leslie was a good employee and "a good seller" and prior to 2009 was rarely absent. (Doc. 43-1) (Dep. Pizzati at 7, 28; Doc. 43-2 (Dep. Leslie at 101-102)). However, in 2008 Leslie experienced a 25% decline in sales for the year. (Doc. 43-1 (Dep. Pizzati at 54)). According to Pizzati, this would require some management action as it is a performance based business: "there'd be a conversation first. And if the pattern or performance continued, then we could go and sit down and formulate a document and put that employee on notice." (Id. (Dep. Pizzati at 54-57)). In December 2008, McMillen counseled the entire sales staff on all of their collective performance. (Id. (Dep. Pizzati at 58)). While there was no blanket policy for performance standards that would require discipline if an employee dropped below a certain level, the company had fired sales or market managers if they did not perform up to standards, after first counseling them and giving them written discipline. (Id. (Dep. Pizzati at 66-67)).
Subsequently on March 23, 2009, Cumulus issued Leslie a work performance memorandum noting "several serious deficiencies that need to be addressed in order for you to be a successful account executive". Cumulus refers to the memo as "an action step probably because her performance wasn't where it needed to be." (Doc. 43-1 (Dep. Pizzati at 93, 96); Doc. 43-2 at 159-164; Doc. 43-12 (Aff. McMillen at 2-3); Doc. 43-17 (e-mails); Doc. 51-8 (3/23/09 Memo)).
Specifically, on April 3, 2009, McMillen e-mailed Pizzati and Denning about Leslie's sick days and her use of same since January 1, 2009, noting that her taking of time off was recurring and when she was going to be absent "we usually find out at the moment." (Doc. 43-2 at 169). On April 22, 2009, Leslie's treating physician Dr. Blanchard submitted a note to Cumulus stating that she would be out of work for two (2) weeks due to medical problems. According to Leslie, when she returned to work McMillen requested that she have her physician fill out FMLA paperwork for that time off even though she thought it had been designated as vacation time.
According to Saunders (and Cumulus) Leslie was out on FMLA leave as of May 4, 2009. (Doc. 53-4 (Dep. Saunders at 93)). Specifically, on May 13 and 14, 2009, McMillen e-mailed Leslie (noting that he had previously e-mailed her and called her on her cell phone) requesting that she update him on when she expected to return to work (stating that he had heard from Hazel Dyess at Cumulus that she would be sending in a doctor's note covering her absences for the week). (Doc. 43-2 (Dep. Leslie at 200-201); Doc. 43-2 at 168). On May 14, 2009, Leslie requested, via e-mail, FMLA documents from Hazel Dyess at Cumulus (per Saunders' discussion with her), and on May 15, 2009, Dyess faxed the FMLA paperwork to Leslie. (Doc. 59-7 at 1-5). Also on May 15, 2009, McMillen sent a letter memo with FMLA paperwork to Leslie, notifying her of her FMLA rights so that she could use FMLA leave if she qualified and noting that her FMLA leave would start on May 4, 2009.
Leslie's request for FMLA leave was "approved" by Cumulus on May 15, 2009 (Doc. 51-12 at 2-3), and it was noted that she would be required to present a fitness for duty certificate to be restored to employment. (Doc. 43-2 at 99). Before May 15, 2009, Leslie had not told anyone at Cumulus the medical condition for which she needed FMLA leave; Cumulus only learned of her condition when she submitted her FMLA leave paperwork. (Doc. 43-2 (Dep. Leslie at 122-123, 129)). According to her May 2009 paperwork, Cumulus was notified of an "estimated" September 2009 return to work date. (Id. (Dep. Leslie at 124)). Leslie did not return to work after May 29, 2009.
On June 1, 2009, Leslie notified Cumulus that she would be absent that day; Saunders asked McMillen to follow-up with Leslie to ascertain the reason why and Leslie told them through a memo to Laura Bouhan cc'd to Denning, that she was still having some problems in the Mobile market. (Doc. 43-2 (Dep. Leslie at 132-133); Doc. 43-2 at 170; Doc. 43-20 at 2). Cumulus contacted Leslie in response and discussed her concerns via telephone. (Doc. 43-20 at 2; Doc. 43-2 at 166-167).
On June 2, 2009, Denning notified Leslie of the need for her to provide a doctor's note. (Doc. 43-2 at 171-172). "[Y]ou have not accrued any more vacation nor do you have any sick time to apply, so it is critical that this leave be supported under FMLA.... If you don't have accrued time to take, and FMLA is not available, you must come to work." (Id.) Leslie responded the following day only to say that she would "submit the needed documents." (Doc. 43-2 at 173).
On June 3, 2009, Leslie's attorney submitted a request to Cumulus, on behalf of Leslie, for "immediate" FMLA leave due to "severe mental anguish" due to "outrageous sexual harassment, discrimination and retaliation". (Doc. 43-2 at 107). Leslie's attorney stated that "Leslie will provide medical documentation supporting her request for leave as soon as possible." (Id.) See also (Doc. 43-2 (Dep. Leslie at 140)). Leslie had not previously notified Cumulus that she was suffering from severe mental anguish. (Doc. 43-2 (Dep. Leslie at 141)).
On July 20, 2009, a Certificate of Health Care Provider for Employee's Serious
On July 23, 2009, psychiatrist Dr. Wilkerson stated in an Attending Physician's Statement provided to Leslie's short-term disability provider (not Cumulus), that her diagnosis was major depression, she had poor sleep, depressed energy, lack of interest in activities, anxiety, weeping and poor concentration; it was "undetermined" as to when she could return to work; and marked "no" in response to whether her job could be modified to handle same with her impairment. (Doc. 43-2 at 177-178). See also (Doc. 43-2 (Dep. Leslie at 155-156)).
On July 30, 2009, defense counsel wrote Leslie's attorney (and Leslie) concerning the expiration of her FMLA benefits on July 24, 2009
Leslie applied for short-term disability benefits (as also referenced in the July
On August 4, 2009, Dr. Wilkerson completed a Work Requirements form for the State of Alabama Department of Human Resources Food Stamp Program. (Doc. 43-2 at 178). Dr. Wilkerson stated that Leslie was not mentally and physically able to work based on her medical condition of "major depression, poor concentration, depressed mood, poor sleep, no energy[ ]" which commenced in February 2009, adding that the duration of her condition was "undetermined" and her ability to return to work was "undetermined." (Id.)
On August 20, 2009, Cumulus' counsel wrote a letter to Leslie's attorney (which she received and read), stating that no information had been received regarding her ability or intentions to return to work, the proposed timeline for a return to work, or the feasibility of a medical release for her return to work, such that "her leave continues to be of an indeterminant [sic] and unknown nature." (Doc. 43-2 at 128-129). Cumulus noted that it had continued Leslie's employment and the provision of health benefits beyond the expiration of her FMLA leave but that "[a] this point, we have no choice but to consider Ms. Leslie's job abandoned. Her last day with the company, therefore, will be deemed August 20, 2009." (Id. at 128). See also Doc. 43-2 (Dep. Leslie at 153-155); Doc. 43-3 (Dep. Denning at 167). As of August 20, 2009, Leslie had not provided Cumulus with a specific date to return to work or a medical release stating that she could return to work. (Doc. 43-2 (Dep. Leslie at 154)). Leslie did not respond to the letter. (Doc. 43-3 (Dep. Denning at 167, 169-170, 173)).
According to Leslie, she did not use all of her FMLA leave before she was terminated. (Doc. 43-2) (Dep. Leslie at 117); (Doc. 52-1 (Decltn. Leslie at ¶ 11)). Nevertheless, Leslie admits that as of the August 20, 2009 date that Cumulus deemed that she had abandoned her job, she had not been released to return to work from her treating physician(s), and the only specific date when she was going to be released was the estimated date of September 2009. (Doc. 43-2 (Dep. Leslie at 144-145)).
On September 21, 2009, Leslie's treating psychiatrist Dr. Wilkerson sent a letter to Leslie's short-term disability provider stating "[i]n my professional opinion she is not able to return to work at this point and requires further psychiatric care." (Doc. 43-2 at 130; Doc. 43-2 (Dep. Leslie at 157)). Dr. Wilkerson had previously estimated her return to work date as "September 2009." (Doc. 43-2 (Dep. Leslie at 157)). Dr. Wilkerson did not release Leslie to return to work within September 2009. (Id.) Leslie never provided a fitness for duty certificate to Cumulus. (Id. (Dep. Leslie at 147-148, 213)).
On November 20, 2009, the State of Alabama Department of Industrial Relations Unemployment Compensation Agency mailed to Leslie a Notice of Determination disqualifying her or determining her ineligible for benefits because she obtained a leave of absence from Cumulus but failed to return to work. (Doc. 52-2). Leslie appealed that determination and on July 2, 2010, the decision was reversed and she was deemed eligible for benefits. (Doc. 52-3).
According to the Cumulus defendants, they are an Equal Opportunity employer
(Doc. 51-6 at 1-2). Cumulus' complaint procedure provides alternative avenues of complaint, allowing Leslie to go over the heads of local management to take a complaint all the way to the top, directly to the corporate headquarters in Atlanta, Georgia:
(Doc. 43-2 (Dep. Leslie at 38); Doc. 43-2 at 60; Doc. 51-6 at 1-2). The policy provides that Cumulus "will investigate harassment complaints as discreetly and confidentially as possible. No one will be retaliated against for making a complaint of harassment ..." (Doc. 43-2 at 60).
Although she does not recall whether she received copies, on November 16, 2007, Leslie acknowledged receipt and understanding of Cumulus' Policy Prohibiting Unlawful Discrimination, Harassment and Retaliation, the Code of Business Conduct and Ethics, and the Whistleblower Hotline, among other policies, and she received a handbook that discusses sexual harassment and discrimination before starting employment. (Doc. 43-2 (Dep. Leslie at 30-34, 35-37, 41); Doc. 43-2 at 58). Leslie understood that if she felt she was a victim of sexual harassment at the workplace, she had the right to complain. (Id. (Dep. Leslie at 33)).
Leslie allegations of sexual harassment consist of a few isolated comments, and the receipt of one (1) text message of a sexually explicit photograph from co-worker Johnnie Coleman (the "breaking point"). (Doc. 43-2 (Dep. Leslie at 52, 179-185)). Apart from "some of the language that was used in the office[,]" the photograph was the first time that Leslie experienced anything that she considered rising to the level of sexual harassment directed to her at Cumulus. (Id. (Dep. Leslie at 179-180)).
Regarding the comments, in 2007 or 2008, Leslie complained to Sales Manager Janet Armstead ("Armstead") about one comment made by co-worker Ben Gordon ("Gordon"): "[i]t's the weekend. I want you to come back with smiles on your faces[ ]" or "I want the females in the office to make sure you get some dick over the weekend[ ]" within earshot of management including McMillen and then-Market Manager Candice Houston. (Id. (Dep. Leslie at 79-81, 86-87)). Leslie complained about Gordon's comment to Houston, who responded "you know how they are" and nothing was done. (Id. (Dep. Leslie at 87)). In December 2008, while Leslie was sharing a sales call ride with Gordon and McMillen, Gordon and/or McMillen used the phrase "busting balls" which made her "very uncomfortable" as she felt it was a sexual comment. (Id.
Concerning the sexually explicit photograph, on January 12, 2009 at 11:02 a.m., Leslie received a text message on her cellular phone from co-worker Johnnie Coleman, which she opened 2-3 weeks after receipt of same; the message attachment was a photograph of Coleman's erect penis. (Id. (Dep. Leslie at 169-173); Doc. 48 (Sealed)). Coleman had never said, joked, e-mailed or texted anything personal or offensive to Leslie before January 12, 2009. (Id.) (Dep. Leslie at 174-177). Coleman's e-mailing of the photograph is the only inappropriate thing that Coleman ever did to her. (Id. (Dep. Leslie at 177)). About three (3) days after opening the attachment, Leslie sent her complaint to the corporate office. (Id. (Dep. Leslie at 171)). Leslie testified that neither Denning nor anyone at the corporate level knew about her complaints of what was occurring to her in terms of sexual harassment at Cumulus, until she formally complained to the corporate office. (Id. (Dep. Leslie at 222)).
Specifically, on February 13, 2009, when Leslie was absent from work, Leslie e-mailed her first Formal Complaint of sexual harassment to Cumulus' corporate office in Atlanta, Georgia, c/o the Director of Human Resources Laurie Bouhan ("Bouhan"), requesting an investigation of "[v]arious forms of verbal harassment" and "sexual harassment (explicit documentation)." (Doc. 43-2 (Dep. Leslie at 69-77, 113, 159-161, 164); Doc. 43-2 at 131; Doc. 51-1; Doc. 51-2). Leslie described an "anything goes" environment that was a hostile and unprofessional setting. (Doc. 43-2 (Dep. Leslie at 69-77, 113, 159-161, 164)). Leslie stated that she would provide specific documentation once contacted. (Id.) Leslie also expressed concern about the lack of confidentiality when she submitted the complaint, specifically that it would be discussed within the Cumulus office. (Doc. 43-2 (Dep. Leslie at 165-167)).
In response, Bouhan e-mailed and spoke with Leslie requesting specific information so that Cumulus could investigate. (Doc. 43-2 at 135-140, 145-146; Doc. 43-2 (Dep. Leslie at 162, 181-182; Doc. 43-9 (e-mails))). Subsequently, Leslie e-mailed Bouhan a photograph of an erect penis and a four (4) page memo detailing 11 specific concerns, the first nine (9) of which focused on account handling/confidentiality concerns at Cumulus, not sexual harassment. (Doc. 43-2 (Dep. Leslie at 182-183, 187); Doc. 43-2 at 134, 141, 147-150; Doc. 51-3). Leslie's "Concern # 10" was for "inappropriate language" on a daily basis (which she discussed with management), citing the December 2008 incident of Gordon and McMillen having a "discussion [which] consisted of sexual comments[ ]" (the "busting balls" comment). (Doc. 43-2 (Dep. Leslie at 34, 183, 186)). Leslie also cited Market Manager Gary Pizzati's apology to her for a sexual comment made by a sales representative. (Id.) Leslie's "Concern # 11" was regarding the photograph from Coleman. (Id. (Dep. Leslie at 179-180)).
On March 2, 2009, Denning telephoned Coleman to ask him about the photograph. (Doc. 43-3 (Dep. Denning at 104-105, 164); Doc. 43-3 at 19). After Coleman admitted sending the photograph, Denning told him it "was very inappropriate" and he was going to be terminated. (Doc. 43-3 (Dep. Denning at 164-167); Doc. 43-3 at 19). Coleman elected instead to resign. (Id.) That same day Denning wrote Leslie detailing Cumulus' investigation of her complaints. (Doc. 43-2 (Dep. Leslie at 192); Doc. 43-2 at 151-156; Doc. 60-1 at 19-22). Denning confirmed that Coleman sent Leslie the inappropriate photo
Also on March 2, 2009, Leslie completed an Intake Questionnaire with the EEOC. (Doc. 62-1). In this questionnaire, Leslie noted that she did not have a disability (Id. at 1), and that the basis for her claim of employment discrimination was sexual harassment and verbal harassment (Id. at 2). She specified receipt of a sexually explicit photograph by a co-worker in January 2009, and "various verbal abuse and overall harassment via management[ ]" in December 2009. (Id. at 2). On March 4, 2009, Leslie filed an EEOC Charge against Cumulus alleging sex discrimination by Coleman and "other instances of sexual harassment and offensive language" occurring from February 1, 2009-March 2, 2009. (Doc. 43-2 (Dep. Leslie at 206-208); Doc. 43-2 at 175).
On March 24, 2009, Leslie faxed a memorandum to Bouhan "to request additional assistance concerning possible retaliation incidents." (Doc. 43-2 (Dep. Leslie at 192-193, 195); Doc. 43-2 at 157-158, 165). At that time, her primary concern was the March 23rd work performance memo. (Doc. 43-2 (Dep. Leslie at 192-193, 198); Doc. 51-9 (3/24/09 Memo)). Leslie stated that after filing her EEOC Charge, Cumulus retaliated against her by subjecting her work performance to high scrutiny and issuing her a performance memo. (Doc. 43-2 (Dep. Leslie at 193)). Specifically, according to Leslie, after she made her complaint in February 2009, McMillen let Leslie know that he knew who filed the complaint and that "a lot of the areas were being investigated[ ]" and made "smart remarks"
On June 1, 2009, while absent from the office, Leslie requested a telephone conference and spoke with Bouhan detailing "unnecessary/unprofessional and disrespectful incidents" since she filed her EEOC Charge, which was communicated to Denning. (Doc. 43-2 (Dep. Leslie at 196); Doc. 43-2 at 166-167, 171-174). Leslie reported that she was bothered that: 1) several of her accounts were not serviced while she was on FMLA leave in May; 2) her Manager arrived 20 minutes late for a client appointment; and 3) McMillen told her to get her personal laptop computer fixed rather than use the "community computer." (Doc. 43-2 (Dep. Leslie at 196-197)). At this time, Leslie had not actually been present at work but she felt that McMillen retaliated against her due to the issue with the computer and turning his back to her when talking with the sales team. (Id. (Dep. Leslie at 198-199)). Denning investigated Leslie's complaints, responding to each concern in detail on June 2, 2009 and suggesting a call that afternoon. (Doc. 43-2 (Dep. Leslie at 219); Doc. 43-2 at 171-172).
On September 4, 2009, Leslie filed an Amended EEOC Charge for sex discrimination, retaliation and disability discrimination alleging that since filing her charge, she had been subjected to "almost daily retaliation" and that she was terminated by Cumulus while "absent on temporary disability." (Doc. 43-2) (Dep. Leslie at 213); (Doc. 43-2 at 176). Cumulus does not have "disability leave" separate from permissible FMLA leave and Leslie's participation in the short-term disability program was a matter between Leslie and the carrier. (Doc. 43-3 (Dep. Denning at 189-197)).
Plaintiff moves to strike the entirety of the Affidavit of Monte Saunders (Doc. 43-4), and the Cumulus defendants move to strike portions of Leslie's Declaration (Doc. 52-1). At the outset, the motions to strike are construed as Rule 56(c)(2) Objections.
Plaintiff's objections to the Monte Saunders' Affidavit are
Cumulus' objections to paragraph 4 are
"The 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) (Dec. 2010). The recently amended Rule 56(c) governs Procedures, and provides as follows:
FED.R.CIV.P. Rule 56(c) (Dec. 2010). Defendant, as the party seeking summary judgment, bears the "initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If the nonmoving party fails to make "a sufficient showing on an essential element of her case with respect to which she has the burden of proof," the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. "In reviewing whether the nonmoving party has met its burden,
Title VII of the Civil Rights Act prohibits employers from discriminating in the workplace on the basis of an individual's "race, color, religion, sex, or national origin." 42 U.S.C. § 2000e et seq. In this case, Leslie alleges sexual harassment/hostile work environment.
To establish a prima facie case of Title VII hostile work environment and/or sexual harassment Leslie must show: 1) she belongs to a protected group; 2) she has been subjected to unwelcome sexual harassment such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; 3) the harassment was based on a protected characteristic (i.e., sex) of the employee; 4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and 5) the employer is responsible for such environment under a theory of vicarious or direct liability. See, e.g., Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir.1999) (en banc) (citation omitted). See also e.g., Reeves v. DSI Sec. Servs., Inc., 395 Fed.Appx. 544, 545-546 (11th Cir.2010); McCann v. Tillman, 526 F.3d 1370, 1378 (11th Cir.2008); Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.2002). "Workplace conduct is not measured in isolation." Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (per curiam). Evidence of harassment is considered cumulatively—in the totality of the circumstances. Mendoza, 195 F.3d at 1242.
Assuming the existence of the first three elements—as the Court views the facts in the light most favorable to plaintiff on summary judgment—the Court turns to element four. As to whether the conduct was severe and pervasive, Leslie relies upon her complaints concerning a few sporadic and isolated remarks,
To be actionable as severe or pervasive, the harassment "must result in both an environment that a reasonable person would find hostile or abusive and an environment that the victim subjectively perceive[s] ... to be abusive." Miller, 277 F.3d at 1276 (internal citation and quotation marks omitted). In other words, the severe or pervasive element has an objective and subjective component. McCann, 526 F.3d at 1378. The court will assume that there is sufficient evidence, if
The Court turns to whether Leslie's perception was objectively reasonable. In so determining, Eleventh Circuit precedent mandates that courts consider "the totality of the circumstances." See, e.g., Miller, 277 F.3d at 1277. To determine the objective severity, courts consider: 1) the frequency of the discriminatory conduct; 2) the severity of the conduct; 3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and 4) whether the conduct unreasonably interferes with an employee's job performance. Reeves, 395 Fed.Appx. at 546. See also Faragher v. City of Boca Raton, 524 U.S. 775, 787-788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Allen v. Tyson Foods, 121 F.3d 642, 647 (11th Cir. 1997) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). "The conduct is considered cumulatively instead of in isolation." Reeves, 395 Fed.Appx. at 546.
In this case, Leslie has not submitted sufficient evidence from which a reasonable jury could find that the alleged sexual harassment was frequent, severe, physically threatening, humiliating, demeaning and/or unreasonably interfered with her job. A few isolated offhand or offensive comments do not constitute actionable sexual harassment. Additionally, one (1) instance of a co-worker sending a sexually explicit e-mail photograph does not arise to "severe or pervasive." See, e.g., McCann v. Tillman, 526 F.3d 1370, 1379 (11th Cir.2008) (noting that "sporadic and isolated" conduct even if offensive, is not enough). It is "repeated incidents of... harassment that continue despite the employee's objections [that] are indicative of a hostile work environment." Miller, 277 F.3d at 1276 (citation and quotation omitted). "`[S]imple teasing,'... offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the `terms and conditions of employment.'" Faragher, 524 U.S. at 788, 118 S.Ct. 2275 (citations omitted). "These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a `general civility code.' Properly applied, they will filter out complaints attacking `the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.' We have made it clear that conduct must be extreme[.]" Id. See also e.g., Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 (5th Cir.1999) (providing that "[a]ll of the sexual hostile environment cases decided by the Supreme Court have involved patterns or allegations of extensive, long lasting, unredressed, and uninhibited sexual threats or conduct that permeated the plaintiffs' work environment[ ]"). In sum, "`Title VII ... does not operate as a general ban on ... rude or offensive behavior.'" Weaver v. Potter, Slip Copy, 2010 WL 2465423, at *4 (S.D.Ga. Apr. 21, 2010) (citation omitted).
Under the totality of the circumstances and considering the allegations in the light most favorable to Leslie, she has not produced sufficient evidence—if believed by a jury—to create an issue of fact as to whether she was subjected to sexual harassment that was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment. As a result, because Leslie has failed to satisfy this fourth element of her prima facie case for hostile work environment, the Court need not reach the fifth element (employer liability) and summary judgment is
Leslie asserts a claim against the Cumulus defendants for retaliation brought pursuant to the Family Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq. ("FMLA"). (Doc. 1 at 7-8). The FMLA grants an eligible employee the right to take up to 12 workweeks of unpaid leave during any 12 month period "[b]ecause of 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). To be "eligible" for FMLA leave, the employee must be employed: "(i) for at least 12 months by the employer with respect to whom leave is requested under section 2612 of this title; and (2) for at least 1,250 hours of service with such employer during the previous 12-month period." 29 U.S.C. § 2611(2)(A). "The Act creates a private right of action to seek equitable relief and money damages against employers who `interfere with, restrain, or deny the exercise of or the attempt to exercise' FMLA rights." Hurlbert v. St. Mary's Health Care Sys., Inc., 439 F.3d 1286, 1293 (11th Cir.2006). Additionally, the FMLA creates two types of claims: interference claims (in which an employee asserts that his employer denied or otherwise interfered with his substantive rights under the Act, see 29 U.S.C. § 2615(a)(1)), and retaliation claims (in which an employee asserts that his employer discriminated because he engaged in activity protected by the Act, 29 U.S.C. § 2615(a)(1)-(2) and 29 C.F.R. § 825.220(c)). Leslie alleges FMLA retaliation. As noted in Strickland v. Water Works and Sewer Bd. of City of B'ham, 239 F.3d 1199, 1206-1207 (11th Cir.2001): "[t]o succeed on a retaliation claim, an employee must demonstrate that his employer intentionally discriminated against him in the form of an adverse employment action for having exercised an FMLA right ... a plaintiff ... faces the increased burden of showing that his employer's actions `were motivated by an impermissible retaliatory or discriminatory animus.'"
Leslie does not contend that there is direct evidence of retaliation but instead addresses her FMLA retaliation claim in the context of the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this framework, Leslie bears the initial burden of establishing a prima facie case of discrimination, i.e., retaliation, by a preponderance of the evidence and if she does so, a presumption of discrimination arises. See, e.g., Christian v. Cartersville City Schools Bd. of Educ., 167 Fed.Appx. 89, 91 (11th Cir.2006); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). "Demonstrating a prima facie case is not onerous; it requires only that the plaintiff establish facts adequate to permit an inference of discrimination." Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997). In order to establish a prima facie case of retaliation, Leslie must show the following: 1) she engaged in statutorily protected activity; 2) she experienced an adverse employment action; and 3) a causal connection between the protected activity and the adverse action. Hurlbert, 439 F.3d at 1297. Once the employee establishes a prima facie case, the burden shifts to the employer "to articulate a legitimate reason for the adverse action." Id. If the employer does so, the employee must then show that the employer's proffered reason was pretextual by presenting evidence "sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision." Id. at 1298 (internal quotation marks omitted). In so doing, the employee may rely on evidence that she already produced. See, e.g., Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir.1997); Hairston
Leslie contends that Cumulus retaliated against her for taking FMLA leave by terminating her on August 20, 2009. (Doc. 1 at ¶¶ 31-35). The Cumulus defendants contend that Leslie never returned or attempted to return to work upon the expiration of her FMLA leave, or for several weeks thereafter.
The Court finds that Leslie has failed to provide sufficient evidence to establish a prima facie case of FMLA retaliation. As a threshold matter, Leslie must establish that she engaged in statutorily protected activity. Leslie's statutorily protected conduct was her use of 12 weeks of FMLA leave during 2009 for her serious medical condition of severe depression. As her FMLA leave expired on August 7, 2009, Leslie's absence beyond that date was not statutorily protected conduct. Specifically, Leslie's FMLA leave absences (12 weeks or 84 days) consist of the following: May 4-May 19, 2009 (16 days); June 1-June 30, 2009 (30 days); July 1-July 31, 2009 (31 days); and August 1-7, 2009 (7 days). See supra Section I. Cumulus gave Leslie her a full 12 weeks of FMLA leave, plus 13 extra days, but Leslie failed to return to work. While Leslie contends, in conclusory fashion, that she had FMLA leave remaining such that her leave did not expire on August 7, 2009, she has failed to present sufficient evidence in support of her contention, choosing instead to essentially ignore the record evidence which confirms that she had already taken a number of days of FMLA leave prior to her June 3, 2009 request.
A plaintiff is entitled to FMLA leave for 12 workweeks during any 12-month period because of a serious health condition that makes that employee unable to perform the functions of her position. 29 U.S.C. § 2612. However, "taking more leave than is allowed by the FMLA is not protected conduct." See, e.g., Johnson v. Morehouse College, Inc., 199 F.Supp.2d 1345, 1362 (N.D.Ga.2002). "[A]s long as the employee has been given the requisite leave period under the FMLA, the FMLA does not forbid an employer from firing an employee who simply refuses to come back to work[,]" and thus, an employer is not liable under the FMLA for firing an employee who does not return to work after her FMLA leave has expired. Id. at 1360-1361. See also e.g., McGregor v. Autozone, Inc., 180 F.3d 1305, 1308 (11th Cir.1999); Bender v. City of Clearwater, 2006 WL 1046944, *12 (M.D.Fla. Apr. 19, 2006). As noted in Carter v. Dialysis Clinic, Inc., 2008 WL 4722070, *6 (M.D.Ala. Oct. 22, 2008): "an employer does not violate the FMLA when it fires an employee who is indisputably unable to return to work at the conclusion of the 12-week period of statutory leave." (citations omitted). Moreover, "[a]n employee's insistence on taking more leave than is allowed by the FMLA is not protected conduct." Bender, 2006 WL 1046944, *12. In other words, Leslie has not established that her termination was motivated by anything other than by her continued unauthorized absence from work after her FMLA leave expired.
In sum, Leslie's FMLA retaliatory termination claim fails because she has not established that she was engaged in a FMLA protected activity at the time of her August 20, 2009 termination by Cumulus. Given Leslie's failure to establish the first requisite element of her prima facie case, the Court need not address the remaining elements.
In Count III of the Amended Complaint, Leslie alleges a claim for wrongful termination in violation of the American with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"). Specifically, Leslie contends that she is a qualified individual with a disability; Cumulus perceived her as disabled and had a record of her disability; Cumulus terminated her while she was out on medical leave due to her disability in violation of the ADA; and upon receiving notice from her physician that she was suffering from severe depression, terminated her employment. (Doc. 24 at 9).
The ADA mandates that no covered employer shall discriminate against "a qualified individual with a disability because of the disability of such individual" in any of the "terms, conditions [or] privileges of employment." 42 U.S.C. § 12112(a). Employers have the duty to provide reasonable accommodations for known disabilities unless doing so would result in undue hardship to the employer. Morisky v. Broward County, 80 F.3d 445, 447 (11th Cir.1996). To establish a prima facie case of discrimination in violation of the ADA, Leslie must prove that: 1) she has a disability; 2) she is a qualified individual; and 3) she was subjected to unlawful discrimination because of her disability. Id. See also Durley v. APAC, Inc., 236 F.3d 651, 657 (11th Cir.2000); Witter v. Delta Air Lines, Inc., 138 F.3d 1366, 1369 (11th Cir.1998).
First, "[i]n order to state a claim for wrongful termination under the ADA, a plaintiff must first prove that he has a disability, as defined by the Act." Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1327 (11th Cir.1998). Disability is defined in three ways as "(1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such impairment; or (3) being regarded as having such an impairment[ ]." 42 U.S.C. § 12102(2). "Merely proving the existence of a physical or mental impairment, without addressing any limitation on major life activities, is not sufficient to prove disability under the Act." Standard, 161 F.3d at 1327. Here, Leslie's alleged disability is severe depression. Depression is a mental impairment. Pritchard v. Southern Co. Servs., 92 F.3d 1130, 1132 (11th Cir.1996).
A "qualified individual with a disability" is an "individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). Thus to be a "qualified individual"
Cumulus asserts that Leslie is not a "qualified individual" because she cannot perform an essential function of her job— regular attendance—much less other functions "such as interacting with people as a salesperson must." (Doc. 44 at 27). Leslie sought an indefinite leave of absence to accommodate her alleged disability of severe depression. If a disabled employee requires an accommodation to perform the essential functions of her job, she must make "a specific demand for an accommodation" and must prove that the proposed accommodation is reasonable. See, e.g., Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363-1364 (11th Cir. 1999). Leslie has not established that she was able to "perform the essential functions of the job in question with or without reasonable accommodations" or that she even made any demand (much less a specific demand) for an accommodation which was reasonable. Specifically, as detailed supra, Leslie did not provide the requested information to Cumulus concerning a return to work date and/or her ability to perform her essential job functions. Moreover, while Leslie alleges in her Complaint that she requested "reasonable accommodation in the form of short-term disability leave" (Doc. 1 at ¶ 39) and received short-term disability, there is no evidence that she requested any reasonable accommodation from Cumulus. Leslie's request to Cumulus for a leave of absence so that she could return to work at some uncertain point in the future was an unreasonable accommodation. See Wood v. Green, 323 F.3d 1309, 1313-1314 (11th Cir.2003) (providing that "[t]he ADA covers people who can perform the essential functions of their jobs presently or in the immediate future[ ]"). Accordingly, Leslie was not a "qualified individual" under the ADA. As such, the Cumulus Defendants' motion for summary judgment as to Leslie's ADA claim for wrongful termination (Count III) is
Leslie contends that Cumulus negligently hired, trained and/or supervised its former Cumulus employee Johnnie Coleman. In the context of a sexual harassment claim, "[t]o recover on negligent supervision and training claims against an employer, `[a] plaintiff must establish by affirmative proof' that the employer actually knew of the incompetence [of the employee], or that the employer reasonably should have known of it. Southland Bank v. A & A Drywall Supply Co., 21 So.3d 1196, 1215-16 (Ala.2008) (citation omitted) (explaining that claims for negligent supervision and training are treated as one claim subject to the same standard) ... The plaintiff meets this burden by either showing `specific acts of incompetency and bringing them home to the knowledge of the master, or by showing them to be of such nature, character,
Accordingly, the Cumulus Defendants' motion for summary judgment as to Leslie's state law claim for negligent hiring, training and/or supervision (Count IV) is
Leslie contends that Defendant Coleman's act of e-mailing one photograph of his penis to her cellular telephone constitutes invasion of privacy and intentional infliction of emotional distress.
A court's exercise of supplemental jurisdiction over remaining state law claims is discretionary. Under 28 U.S.C. § 1367(c)(3), the court may "decline to exercise supplemental jurisdiction over a [state law] claim if the district court has dismissed all claims over which it has original jurisdiction...." This Court's discretion is advised by United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), in which the Court held that "[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. [] Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well." Id. at 726, 86 S.Ct. 1130. Likewise, in Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988), the Supreme Court reiterated that "when the federal-law claims have dropped out of the lawsuit in its early stages and only statelaw claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice ..." The Eleventh Circuit has further explained that "if the federal claims are dismissed prior to trial, Gibbs strongly encourages or even requires dismissal of state claims." Mergens v. Dreyfoos, 166 F.3d 1114, 1119 (11th Cir.1999), cert. den., 528 U.S. 820, 120 S.Ct. 63, 145 L.Ed.2d 55 (1999). See also e.g., Arnold v. Tuskegee University, 212 Fed.Appx. 803, 811 (11th Cir.2006) (unpublished) (providing that "[w]hen the district court has dismissed all federal claims from a case, there is a strong argument for declining to exercise supplemental jurisdiction over the remaining state law claims"); Rowe v. City of Ft. Lauderdale, 279 F.3d 1271, 1288 (11th Cir.2002) (finding that "[b]oth comity and economy are served when issues of state law are resolved by state courts[ ]"). Moreover, a federal district court may exercise subject matter jurisdiction over a civil action in which only state law claims are alleged if the civil action arises under the federal court's diversity jurisdiction. 28 U.S.C. § 1332(a)(1). The diversity statute confers jurisdiction on the federal courts in civil actions "between citizens of different
The Complaint (and Answers thereto) indicates that Plaintiff Leslie is a resident of Mobile County, Alabama and a citizen of the State of Alabama, but provides no state citizenship information for Defendant Coleman. (Doc. 1 at 2-3; Doc. 9; Doc. 23 at 2).
Accordingly, it is
