SHARON LOVELACE BLACKBURN, District Judge.
This case is presently pending before the court on defendant's Motion for Summary Judgment. (Doc. 22.)
Pursuant to Fed. R. Civ. P. 56(a), summary judgment is appropriate "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); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once the moving party has met its burden, the non-moving party must go beyond the pleadings and show that there is a genuine issue of fact for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Fed. R. Civ. P. 56(c)(1); see also Clark, 929 F.2d at 608 ("it is never enough simply to state that the non-moving party cannot meet its burden at trial").
In deciding a motion for summary judgment, the court's function is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. "[C]ourts are required to view the facts and draw reasonable inferences `in the light most favorable to the party opposing the [summary judgment] motion.'" Scott v. Harris, 550 U.S. 372, 378 (2007)(quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam)). Nevertheless, the non-moving party "need not be given the benefit of every inference but only of every reasonable inference." Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999)(citing Brown v. City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir. 1988)); see also Scott, 550 U.S. at 380 ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.").
In 1997 Peterson, African-American, began working for the Foundation as a Receptionist/Assistant at the Substance Abuse Clinic. (Doc. 24-1 at 22, 24-25; doc. 39-3 ¶ 1.) After the Substance Abuse Clinic closed, Peterson held various positions with the Foundation, before transferring to the Dermatology Clinic in January 2011 as a Patient Encounter Specialist [hereinafter "PES"]. (Doc. 24-1 at 27, 29-31, 36, 67; doc. 33 ¶ 2.) She worked primarily at the check-out desk performing clerical and customer-service responsibilities, such as documenting charges, accepting payments, verifying the patient's identity, answering the phone, and scheduling appointments. (Doc. 33 ¶¶ 2, 3.) She received an excellent evaluation in October 2011 from her then-supervisor, Kimberley Turnley, African-American. (See doc. 27 at 2-5; doc. 25 at 100.)
On November 15, 2011, Turnley met with Peterson and her coworker, Heather Moody, white PES also assigned to the check-out desk, to discuss "teamwork" and "communications." (See doc. 24-1 at 64; doc. 25 at 102, 104; doc. 27 at 37.) Shortly thereafter, Erika Sanso, white RN Practice Manager, replaced Turnley as Peterson's supervisor. (Doc. 24-1 at 37; doc. 25 at 100; doc. 33 ¶ 2.) The Practice Manager supervises the 34-36 employees in the Dermatology Clinic. (Doc. 25 at 22.)
On January 19, 2012, Peterson fell from her chair at work and suffered a rotator cuff injury to her left shoulder. (Doc. 24-1 at 107, 110, 112; doc. 39-3 ¶ 30.) She notified Loretta Nicholson, an employee in the medical records area, who called her supervisor, Betty Franks, and Franks sent Peterson to UAB Highlands Hospital for evaluation that day. (Doc. 24-1 at 66, 108-09.) Peterson subsequently attended doctor visits and physical therapy sessions, for which she received worker's compensation benefits and coverage. (Id. at 113-17.) She testified, "There were times in 2012 that I had to be absent or leave early to go to doctor[`s] appointments or physical therapy." (Doc. 39-3 ¶ 31.)
On January 30, 2012, Peterson emailed Towana Pardue, white Chief Nursing Officer and Sanso's supervisor. (Doc. 29 at 7.) She complained:
(Id.; see also doc. 24-1 at 65, 68-69, 73-74.) Peterson testified that Sanso had said, "Sarah, it's been taken care of," and that she believed Sanso was "rude" based on the tone of her voice. (Doc. 24-1 at 70-71.) She also complained to Pardue that Sanso had not offered to help her that day when she was working the check-out desk alone. (Doc. 29 at 7.)
Peterson met with Pardue several days later, at which time she told Pardue that Sanso treated white employees better than African-American employees based on the fact Sanso was friendlier to white employees and she was more concerned about them.
According to Sanso, she received a number of complaints about Peterson's behavior and job performance between January and May 2012. (Doc. 25 at 72-73, 79-80, 88-93, 95-96.) Sanso testified that the Dermatology Clinic rarely got negative feedback from patients, but, in the first few months of 2012, she had received two patient comment cards complaining about customer service at the check-out desk. (Doc. 33 ¶ 7.)
In January 2012 an unidentified patient rated the "black lady at checkout" as "poor" with regard to courtesy and sensitivity. (Doc. 28 at 12.) The patient indicated that his or her likelihood of returning or recommending the clinic was "very poor." (Id.) Peterson was the only "black lady" assigned primarily to the check-out desk during this time period. (Doc. 25 at 163.) However, during this time, Melanie Jones, an African-American PES, occasionally covered for check-out personnel while they were on breaks. (Doc. 39-3 ¶ 7.)
In March 2012, Sanso received another anonymous patient comment card, which stated that his or her visit could have been better with "faster checkout" and that the courtesy of the check-out desk was only "fair." (Doc. 28 at 13.) This comment card did not identify or describe Peterson as the PES involved with the patient's check-out, (see id.); therefore, it could have referred to any PES.
One of Peterson's coworkers, Aubrey Gamble, the white PES primarily assigned to the check-out desk with Peterson after Moody took a maternity leave, reported to Sanso that she was concerned about Peterson's inappropriate interactions with patients. (Doc. 24-1 at 63-64; doc. 25 at 73-74.) According to Sanso, Gamble complained that Peterson "doesn't interact well with patients," and Sanso asked Gamble to provide her with specific incidents. (Doc. 25 at 74.) Thereafter, in April 2012, Gamble emailed Sanso about two incidents of poor customer service: (1) Peterson had interrupted an elderly patient, and (2) she had not ended a personal telephone call to help a waiting patient. (Id. at 72-73, 77-78; doc. 27 at 29.)
Cheryl Goodwin, white Team Lead, talked to Sanso about Peterson's rude reaction when asked a question about charge tickets or entries, including exhibiting negative body language. (Doc. 25 at 80; doc. 33 ¶ 8.) Goodwin reported to Sanso that, although Peterson ultimately would answer her questions, she "acted as though she did not want to answer and would act rudely." (Doc. 25 at 80) On April 19, 2012, Goodwin reported to Sanso that Peterson appeared to be working unnecessary overtime; she told Sanso that she had seen Peterson at work at 5:25 p.m. and that all the patients had left the clinic by 4:30 p.m. or 4:45 p.m. (See doc. 27 at 31.) Peterson generally disputes that she worked unnecessary overtime. (See doc. 39-3 ¶ 8 ["I did not work unnecessary overtime. I communicated with Ms. Sanso if there was a need for me to stay late or come in early. There was always a lot to do after the last patient left, and we would get telephone calls from patients asking questions regarding appointments after 5:00 p.m. on occasion."].) Also, she contends that "the record supports the fact that during this time period, [she] was communicating with Sanso when there was a need to work over." (Doc. 38 at 6 [citing doc. 25 at 62-64 [Sanso testified as to three instances of plaintiff communicating with her regarding working outside her normal schedule in February 2012]; doc. 27 at 19-21 [emails regarding the three February 2012 communications].) She has not presented evidence that she had communicated with Sanso on April 19, 2012, about working late or that she was performing work-related activities on that day.
Peterson testified that Sanso did not bring Goodwin's complaints to her attention. (Doc. 39-3 ¶ 10.) Moreover, she denies that she responded negatively to Goodwin. (Id. ¶ 11.)
The two PESs that were assigned primarily to the check-in desk—Brittney Bettison, African-American, and Vicki Frye, white—reported to Sanso that Peterson was away from the check-out desk and that she had failed to help them. (Doc. 25 at 95-96; doc. 24-1 at 62, 64.) Peterson denies that she ever failed to help the check-in desk when needed. (Doc. 39-3 ¶ 12). Also, she sent an email offering to help others on March 8, 2012, (doc. 27 at 22); however, Sanso testified that she sometimes doesn't get email till a later time, so she preferred that Peterson simply ask her coworkers if they needed help, rather than sending an email, (doc. 25 at 65-66).
Sanso testified that she had "coached" Peterson about the concerns raised by her coworkers and reminded her periodically of the Foundation's expectations regarding customer service, team work, and working overtime.
In early 2012 three doctors in the Dermatology Clinic complained to Sanso about Peterson's job performance, including that (1) she booked patients in the wrong appointment slots, (2) she was unable to answer questions about patient charges, (3) she was staying late, and (4) she displayed a negative attitude and negative body language when they asked her questions. (Doc. 25 at 88-93.) Sanso testified that she had talked with Peterson about all of these issues as part of her day-to-day coaching discussions with employees. (Id.) Peterson testified that the only complaint she received from the doctors was a complaint about scheduling that applied to everyone. (Doc. 39-3 ¶ 14.)
On April 27, 2012, Peterson gave one patient [hereinafter "Patient A"] the depart summary of another patient [hereinafter "Patient B"]. (Doc. 24-1 at 55-60; doc. 34 ¶ 3.) According to Peterson, Patient A had given her the charge ticket for Patient B. (Doc. 24-1 at 57-58.) During the check-out process, she had called Patient A by Patient B's name, to which Patient A had responded without correcting her. (Id. at 57.) The error was discovered sometime later when Goodwin brought Patient B to the check-out desk, looking for his/her charge ticket. (Doc. 39-3 ¶ 17; doc. 33 ¶¶ 11-12; doc. 24-1 at 56-57.)
Sanso investigated the incident. (Doc. 33 ¶ 10.) She testified that her investigation showed that Dr. Elmet discovered he had Patient A's charge ticket for Patient B, his patient. (Id. ¶ 11.) He gave Patient A's charge ticket to Goodwin and asked her to find Patient B's charge ticket. (Doc. 33 ¶ 11.) Goodwin asked Peterson about Patient B's charge ticket and Peterson told her that she had checked out Patient B. (Id. ¶ 12.) Sanso determined that Peterson had failed to confirm Patient A's name and his/her birthday at check-out, and she had not compared the name on Patient A's check and driver's license with the name on his/her charge ticket. (Id. ¶ 13.)
Sanso testified that she could not determine how the charge tickets were switched in the first place. (Id. ¶ 14.) Peterson testified that she believed Goodwin had given Patient B's charge ticket to Patient A, but she did not see Goodwin give Patient A the wrong charge ticket. (Doc. 24-1 at 100.) During the course of Sanso's investigation, Peterson advised her that she had received the wrong charge ticket directly from Patient A and that another doctor had signed that charge ticket, which had Dr. Elmet's name at the top. (Doc. 39-3 ¶¶ 15, 16.)
Sanso determined that Peterson had failed to confirm Patient A's name and date of birth when she checked him/her out and that she had failed to confirm that the name on his/her check and his/her driver's license was the same as the name on the depart summary. (Doc. 33 ¶ 13.) Peterson does not dispute that she failed to verify Patient A's birthday and/or compare the name on his/her check and driver's license with the name on the charge ticket. She states only that she called Patient A by Patient B's name and he/she did not correct her. (Doc. 38 at 8 [citing doc. 39-3 ¶ 14].) According to Sanso, verifying the patient's name and date of birth and checking the driver's license for a personal check are all part of the regular protocol for check-out. (Id.) Sanso testified that she concluded that Peterson had not properly verified Patient A's identity causing her to give him/her Patient B's depart summary. (Id. ¶ 14.)
Also, Sanso testified that her investigation did not identify any other employee who had improperly disclosed patient information. (Doc. 25 at 111-13.) Nevertheless, she arranged for additional education on patient confidentiality compliance for all clinic employees, and she documented the HIPAA/privacy violation in the files of all the clinic employees that had encountered Patients A or B that day—including Goodwin, white, Bettison, African-American and LaShundra Turner, African-American. (Doc. 33 ¶ 19; doc. 34 ¶ 5; see doc. 28 at 11.)
Following her investigation, Sanso contacted Jeannie Singer, the Director of Sourcing and Workforce Development in Human Resources [HR], to report the patient confidentiality breach. (Doc. 33 ¶ 15; Doc. 35 ¶¶ 1, 2.) Singer told Sanso to talk to Jann Robinson, HIPAA Privacy Coordinator. (Doc. 33 ¶ 15.) Generally, violations of patient confidentiality are referred to Robinson for a determination of the level of the violation and whether it is a reportable incident. (Doc. 34 ¶ 2; Doc. 35 ¶ 3.) Sanso contacted Robinson, who confirmed that Peterson's disclosure of the wrong depart summary was an incidental, as opposed to an intentional, violation of the Foundation's policy on use and disclosure of health information and HIPAA. (Doc. 33 ¶ 16; 34 ¶ 3.) Singer and Sanso decided not to terminate Peterson based on the incidental violation; rather, they decided to address the HIPAA/privacy violation together with other performance issues. (Doc. 33 ¶ 17; doc. 35 ¶ 4.)
On May 18, 2012, Sanso met with Peterson and gave her a written warning [hereinafter "the May 18 Warning"]. (Doc. 33 ¶ 20; doc. 24-1 at 44.) The May 18 Warning stated, "This disciplinary action is being taken for the following reason[s]: Job Performance [and] Behavior." (Doc. 29 at 4.) Under the heading, "Facts of Occurrence(s)," the May 18 Warning noted:
(Id.) The "action plan" attached to the May 18 Warning stated:
(Doc. 29 at 5-6 [footnote added].) Sanso and Plaintiff discussed each of the action plan areas, as well as specific improvement goals. (Doc. 24-1 at 45-53; see doc. 29 at 6.)
In the Employee Comments section, Peterson wrote, "I do not agree with this Written Warning because there was never a verbal warning. Also this [has] no merit[;] it is hearsay. I am put in a hostile environment, and no matter how well I perform [there] will be no change." (Doc. 29 at 4.) Peterson testified that she felt she was in a "hostile environment" because she "was constantly called into [Sanso's] office about someone saying this or someone saying that," and "it seemed like [she] was a bother to [Sanso] and [Sanso] was rude." (Doc. 24-1 at 61, 65.) Despite her testimony that she was constantly called into Sanso's office, she testified that, prior to May 18, 2012, she "was not previously coached by Ms. Sanso regarding the items in the May 18, 2012, write-up." (Doc. 39-3 ¶ 18.) She denies "that she was lacking in teamwork, productivity, [and] non-compliance with provider preferences," and that she "abused overtime." (Id.)
A few days after the May 18 Warning, Peterson went to HR to complain that no other employees had been disciplined for the patient confidentiality violation.
Peterson, Wilson, and Sanso met on May 22, 2012, and discussed the May 18 Warning and Peterson's working relationship with Sanso. (Doc. 24-1 at 145; doc. 36 ¶ 5; see doc. 29 at 9.) Wilson told Sanso that Peterson had called her racist, a fact that Peterson thought Wilson would keep confidential. (Doc. 24-1 at 139.) Peterson stated that she felt Sanso treated white employees better than African-American employees and that Sanso considered African-American employees to be "a problem". (Doc. 36 ¶ 5; doc. 24-1 at 140, 145-46; doc. 29 at 9.) Sanso replied that said she hated that Peterson felt that way, that she did not feel that way about the employees, and that she would be more aware of the way she communicated in the future. (Doc. 24-1 at 140, 145-46; doc. 36 ¶ 5.) Wilson felt this meeting was successful and she was "hopeful that [Peterson would] receive the admonishments and improve her performance." (Doc. 36 ¶ 6; see doc. 29 at 9.)
On or about May 24, 2012, Sanso learned of a second patient confidentiality violation involving Peterson.
Sanso investigated the incident and discovered that, on May 16, 2012, Peterson had failed to verify the patient's name and date of birth and that she had given the wrong depart summary to a patient. (Doc. 25 at 117-20; doc. 24-1 at 95-97.) In her deposition, Peterson testified that she did not know what happened that day or even if she had given the patient the wrong depart summary. (See doc. 24-1 at 95-96.) However, in her Declaration, she testified, "I recall that the reason for the HIPAA violation on May 16, 2012, was that the patient who was checking out had a name that was extremely similar to another name in the system."
As a result of this May 16, 2012, incident, Peterson received a Final Warning on June 4, 2012. (Doc. 24-1 at 92-94; doc. 29 at 8.) This Final Warning stated:
(Doc. 29 at 8.)
On June 5, 2012, Gamble was written up for a HIPAA violation. (Doc. 25 at 136.) Gamble's violation involved stapling together the depart summaries for two different patients and giving them to the first patient. (Id. at 137.) The two depart summaries were printed at the same time to the same printer. (Id.) Gamble picked up a stack of paper from the printer and stapled them together without verifying that all the pages in the stack of papers were for the same patient. (Id.) Sanso determined that Gamble had verified the patient's name and date of birth before handing him/her the stack of papers, but she had failed to check the stack of papers. (Doc. 26 at 206-07.) Peterson testified that she told Sanso that she had asked Gamble if she had papers belonging to the patient Peterson was checking out. (Doc. 39-3 ¶ 20.) Gamble simply said, "no," and did not check the stack of papers before handing them to the patient. (Id.) Gamble received a verbal warning because, according to Sanso, Gamble had verified the patient's identity consistent with protocol. (Doc. 25 at 136-37; doc. 26 at 206-07; doc. 33 ¶ 22.)
Peterson contends that Gamble should have received the same discipline as she did — written warning and final warning. (See doc. 39-3 ¶ 20.) However, Peterson's May 18 Warning included issues other than a single HIPAA violation, (see doc. 29 at 4-6), and the Final Warning was Peterson's second HIPAA violation caused by her second failure to verify the patient's name and birthday, (see doc. 29 at 8).
On June 27, 2012, Peterson filed a Charge of Discrimination with the EEOC, alleging race and retaliation. (See doc. 1-1.) In this Charge, Peterson stated:
(Id.) She did not mention the Final Warning. (See id.)
Between June 19, 2012, and July 5, 2012, Peterson had surgery on her shoulder and was on leave. (Doc. 24-1 at 142-44.) Following her leave, she returned to work with a note from her doctor releasing her to normal duties, provided that she could keep her left arm in a sling. (Doc. 25 at 124; doc. 33 ¶ 23; doc. 33-1 at 2.) On or about August 1, 2012, Peterson gave Sanso a note from a different doctor, limiting her to light duty. (Doc. 33 ¶ 24; doc. 33-1 at 3.) Sanso accommodated the restrictions, and, on August 6, 2012, she gave Peterson a memo outlining her light duty responsibilities. (Doc. 25 at 124; doc. 27 at 43.) Peterson remained on light duty until October 2012. (Doc. 24-1 at 165.)
On August 22, 2012, Peterson sent an email to Sanso complaining that Tracey Foster, an African-American CMA, was rude to her and she felt she was working in a hostile environment. (See doc. 30 at 4; doc. 24-1 at 169, 173.) Peterson did not specify that she believed the hostility was based on her race, her prior protected activity, or her worker's compensation claim. (See doc. 30 ¶ 4.) Two days later she met with Sanso and Wilson to discuss her concerns. (Doc. 24-1 at 177-78; see doc. 30 at 5.)
When asked by Sanso and Wilson what she meant by a "hostile environment," Peterson told Sanso "that she felt everyone was being rude, [and] that she was disliked. She felt that it was a challenge at times to do her job." (Doc. 25 at 132.) During this meeting, Peterson raised several other issues concerning her relationships with her coworkers, including:
(Doc. 30 at 5 [Wilson's notes memorializing the meeting with Sanso and Peterson]; see doc. 24-1 at 178 [Peterson testified that Wilson's summary was accurate].) In response to these concerns, Sanso suggested that she and Wilson facilitate one-on-one meetings between Peterson and her coworkers and Peterson agreed. (Doc. 36 ¶ 8; doc. 24-1 at 190; doc. 30 at 5; doc. 39-3 ¶ 3.)
On September 5, 2012, Sanso, Wilson, and Peterson met with Foster, Turner, and Gamble, as well as Ashley Wells, a white employee in the Call Center, and Laura Puckett, a white employee in Medical Records. (Doc. 24-1 at 175-77, 191-94, 196-97, 199, doc. 24-2 at 201-02; see doc. 30 at 6.) According to Wilson and Sanso, Peterson raised her concerns with her coworkers about how they were treating her and some of the coworkers, specifically Turner and Gamble, voiced concerns about how Peterson treated them. (Doc. 36 ¶¶ 10-11; doc. 33 ¶ 28.) Gamble stated that she did not like Peterson because she reported people to HR and because she had filed a lawsuit against the Foundation.
After the individual meetings, Sanso and Wilson pointed out to Peterson that she appeared to be the "common denominator" in the conflicts among her coworkers. (Doc. 33 ¶ 30; doc. 36 ¶ 12.) However, they testified that, after these meetings, they were hopeful that Peterson would improve her communication with her coworkers and would be more sensitive to how she came across to others. (Doc. 33 ¶ 30; doc. 36 ¶ 12.)
According to Sanso, after the September 5, 2012, meetings, the issues between Peterson and her coworkers appeared to improve for a time. (Doc. 33 ¶ 31.) However, Peterson testified, "After I had returned from having surgery, . . . Ms. Gamble's attitude had changed toward me. . . . She would change the passwords and codes and this would prevent me from doing my job. She did not leave any code on a sticky note for me." (Doc. 39-3 ¶ 21.) On October 10, 2012, Peterson emailed Sanso complaining that Gamble had changed the telephone code at the check-out desk without telling her the new code; she complained to Sanso that "nothing has change[d] since the [September 5] meeting." (Doc. 25 at 137-38; doc. 27 at 46.) Sanso investigated Peterson's complaint and she determined that Gamble had put the new telephone code on a sticky note at the check-out desk, which was the appropriate procedure. (Doc. 25 at 130.) She testified that she had been unable to determine whether Gamble was otherwise appropriately communicating with Peterson, but she coached Gamble to be more aware in her interactions with Peterson. (Doc. 33 ¶ 31.)
Shortly after the September meetings, Gamble was promoted to a position in the Call Center, a position for which Peterson had also applied. (Doc. 39-3 ¶ 34.) Peterson has not raised a claim based on her failure to be promoted to the Call Center position.
Peterson received her yearly evaluation from Sanso on October 30, 2012. (See doc. 30 at 9-12.) Sanso rated Peterson as "meet[ing] some expectations," which means that the employee "[g]enerally did not meet criteria relative to quantity and quality of job performance/behavior required," on all four of the Foundation's core values— "Integrity (Do Right)," "Ownership (Own It)," "Caring (Always Care)," and "Collaboration (Work Together)"—and on four out of nine applicable job responsibilities. (See id. at 9-10; doc. 33 ¶ 33.)
Under the core value of "Integrity," Sanso noted that Peterson had been disciplined for overtime, personal phone calls, communication problems, customer complaints, and work concerns. (Doc. 30 at 9.) Peterson indicated that she believed her performance in this area had "exceeded some expectations." (Id.)
Under the core value of "Ownership," Sanso noted that Peterson had multiple entry errors and HIPAA violations. (Id.) Peterson indicated that she believed her performance in this area had "exceeded some expectations." (Id.)
Under the core value of "Caring," Sanso noted that Peterson "usually" related well to patients but that she had concerns about team work and Peterson's negative comments to coworkers. (Id.) She also noted that Peterson complained and that she had spent "a great deal of [her] time . . . mediating conflicts with coworkers." (Id.) Peterson indicated that she believed her performance in this area had "met expectations." (Id.)
Finally, under the core value of "Collaboration," Sanso noted that Peterson had been disciplined for "team work concerns," and she repeated that she had spent time mediating conflict between Peterson and her coworkers. (Id. at 9-10.) She stated that Peterson needed to respect her coworkers and improve her communication, although she noted that Peterson had participated in training new individuals. (Id.) Peterson indicated that she believed her performance in this area had "exceeded some expectations." (Id. at 9.)
Peterson's evaluation states the following with regard to those job responsibilities for which Sanso rated Peterson as "Met Some Expectations." With regard to "Checks patients out of the clinic after their visit" job responsibility, Sanso noted that Peterson had HIPAA violations as a result of her failure to verify patient information. (Id, at 10.) Peterson indicated that she believed her performance of this job responsibility "exceeded some expectations." (Id.)
With regard to "accurately completes tasks related to patient financial responsibilities" of the clinic after their visit" job responsibility, Sanso noted that "We did have some circumstances arise where inaccurate billing measures occurred for which [Peterson] reviewed and was unsure of what happened[,] which resulted in further training." (Id.) Peterson indicated that she believed her performance of this job responsibility "met some expectations." (Id.)
With regard to "schedule patient appointments" job responsibility, Sanso noted that she had complaints of patients arriving for appointments at the wrong time or on the wrong day because Peterson had put a different time/date on the depart summary than on the computer schedule. (Id.) Peterson indicated that she believed her performance of this job responsibility "exceeded some expectations." (Id.)
With regard to "financial and billing responsibilities" job responsibility, Sanso noted that Peterson had "payments [that] were not accounted for appropriately resulting in financial loss to the institution and further training." (Id. at 11.) Peterson indicated that she believed her performance of this job responsibility "exceeded expectations." (Id.)
During this same time period, Sanso gave Gamble an excellent evaluation. (Doc. 25 at 145; doc. 28 at 1-4.)
In December 2012, a patient had complained she was "disappointed and offended" when Peterson "rudely" told her to "step back for privacy." (Doc. 28 at 49-50.) The patient reported that Peterson was very rude and that other patients had commented about it. (Id. at 50.) Peterson denied she was rude to a patient. (Doc. 24-2 at 229.) She testified that, during this time period, she "kindly" told several patients, "Would you please step back for privacy?," when one patient was standing too close to the patient at the desk. (Id.) She does not know if any patient complained and, if so, such complaint was not brought to her attention at the time. (Id. at 229-30.)
In her Declaration, Peterson testified:
(Doc. 39-3 ¶¶ 37-38.)
The EEOC Conducted an on-site investigation on December 10, 2012. (Doc. 25 at 148-49.) During their visit, employees from the EEOC questioned a number of Foundation employees, including Sanso. (Id.) Sanso told the EEOC investigator that she had no concerns about Peterson's teamwork at that time. (Id. at 149.) The record contains no evidence that Peterson participated in the on-site investigation.
Following the EEOC's on-site visit, Ashley Carter, African-American PES who replaced Gamble at the check-out desk, complained about Peterson's behavior. (Doc. 24-1 at 188; doc. 25 at 29; doc. 33 ¶ 34.) According to Sanso, Carter came to her in tears and said she was considering quitting. (Doc. 33 ¶ 34.) Carter's complaints to Sanso and Peterson's responses were:
Sanso reported Carter's concerns to Singer in an email dated December 14, 2012. (Doc. 33 ¶ 34.) Peterson testified that Sanso did not tell her about Carter's complaints in December 2012. (Doc. 39-3 ¶ 24.)
The EEOC issued Peterson a right to sue letter on her EEOC Charge on January 2, 2013. (Doc. 16-3.)
On January 4, 2013, the Patient Ambulatory Access Department reported that Peterson had failed to obtain a patient's driver's license information, as required by the Foundation's check verification protocol. (Doc. 33 ¶ 35.) The Foundation's agreement with its check-processing company does not cover returned checks without the proper identification information. Therefore, the Foundation was financially responsible for the returned check, which did not contain the patient's driver's license information. (Doc. 33 ¶ 35.) On January 10, 2013, Sanso also discovered that Peterson had accepted three checks for which she had failed to obtain the requisite identification information. (Doc. 33 ¶ 37.)
Peterson testified that she had no control over whether a check was returned. (Doc. 39-3 ¶ 25.) She also testified that she was aware that the Foundation's policy required her to write a telephone number and driver's license number on the face of each check. (Id.) However, she does not dispute that she failed to record the patient's driver's license information on the returned check, which made the Foundation—and not the check-processing company—responsible for the unpaid check, and she does not dispute that Sanso found she had accepted three other checks without the required driver's license information.
On January 9, 2013, Carter complained again to Sanso about Peterson leaving the check-out desk for approximately fifteen minutes at a time other than her break, while a line of eight to ten people waited at the check-out desk. (Doc. 33 ¶ 36; doc. 33-1 at 9.) Peterson denied that she was away for fifteen minutes, but she did not deny that Carter made such a complaint. (See doc. 39-3 ¶ 26.) Sanso met with Wilson for guidance on handling Carter and Peterson's conflict and Peterson's continuing behavioral and performance issues, including leaving the check-out desk. (Doc. 33 ¶ 38; doc. 36 ¶ 14; see also id., exh. E, at 16.)
The following day, Carter complained to Sanso that she was carrying a heavier load than Peterson, and she pointed to the number of charges she had entered on January 9th and 10th as compared to Peterson. (Doc. 33 ¶ 37.) After comparing their entries, Sanso determined that Carter appeared to be processing significantly more payments and money items than Peterson. (Doc. 33 ¶ 37.) Peterson testified that, on January 8, 2013, Carter told her that she had been told that Peterson was to do all precertifications. (Doc. 39-3 ¶ 27.) She told Sanso that she had spent "a great deal of time" doing the precertifications on January 9th and 10th. (Id.)
On January 11, 2013, Sanso and Wilson, along with Annalee Hudson, a white HR Generalist, met with Peterson and Carter to discuss their interpersonal conflicts. (Doc. 24-2 at 225; doc. 33 ¶ 39; doc. 36 ¶ 15.) Following this discussion, and after Carter had left the meeting, Sanso told Peterson that she had previously addressed teamwork and communications concerns with her and she had not seen Peterson change her behavior. (Doc. 24-2 at 225-26; doc. 36 ¶ 15; doc. 33 ¶ 39.) Peterson stated that when she raised a concern about her coworkers, Wilson (African-American) and Sanso did not believe her and they always believed the other employee. (Doc. 39-3 ¶ 35.) Wilson told Peterson, again, that she was the common denominator in the interpersonal conflicts with coworkers and such behavior in the future would not be tolerated. Wilson told Peterson that this was her last chance. (Doc. 24-2 at 226-27; doc. 33 ¶ 39; doc. 36 ¶ 15; see also id., exh. F, at 18.) Wilson said, "This is the last time we will talk with you about anything. The next time, you will be out the door." (Doc. 24-2 at 226-27.) Sanso testified that she had considered terminating Peterson at this time because she felt that they had been clear about their expectations and Peterson was unable or unwilling to change her behavior and improve her performance. (Doc. 33 ¶ 40.)
On January 25, 2013, Sanso noticed that two patients were waiting to check-out while Peterson was on duty, but no one was at the check-out desk. (Doc. 33 ¶ 41; doc. 26 at 167-69; doc. 28 at 51; doc. 39-3 ¶ 36.) Sanso got the employees at the check-in desk to check-out the patients. (Doc. 33 ¶ 42.) According to Sanso, she saw Peterson come out of the restroom ten minutes later. (Id.; doc. 28 at 51.) Peterson told Sanso that she had been in a hurry to blow her nose, to which Sanso responded that she had tissue at the check-out desk. (Doc. 33 ¶ 42; doc. 28 at 51 ["When you came back to your desk I asked where you had been and you told me you had to `blow your nose'. I noted you had been gone for about ten minutes (and that you had tissue at your desk) . . . ."].) Sanso asked Peterson why she had not told the check-in staff that she needed to step away, and Peterson told Sanso that no one was at the check-in desk for her to tell. (Doc. 33 ¶ 42.) Peterson testified that she had followed protocol by looking for a PES in check-in to cover for her, turning off her light, and leaving a note at the check-out desk when she could not find a PES employee to cover for her. (Doc. 39-3 ¶ 36; see also doc. 31 at 9.) Sanso did not believe Peterson because she had seen the check-in employees at the check-in desk the entire time Peterson was away. (Doc. 33 ¶ 42.)
At this point, Sanso decided to terminate Peterson because she felt that Peterson was not going to improve her performance or her relationships with her coworkers and that additional disciplinary action would not be effective. (Doc. 33 ¶ 43) On January 30, 2013, Sanso and Wilson met with Peterson and terminated her employment based on her continuing behavioral and performance issues. (Id. ¶ 44; doc. 36 ¶ 17.) During this meeting, Sanso gave Peterson a Memorandum, which set forth Sanso's reasons for Peterson's termination. (Doc. 31 at 6-9.) This Memorandum stated:
(Doc. 31 at 6-9 [footnotes added].)
Following Peterson's termination, the Foundation hired two white PESs—Leigh Davis and Shelby Pierce. (Doc. 25 att 41, 43-44.) Pierce primarily worked the check-out desk, although both she and Davis rotated between the check-in and check-out desks. (Id. at 43, 44.) Peterson did not file an EEOC charge following her termination.
Peterson filed for unemployment compensation benefits following her termination. (Doc. 24-2 at 239.) The State of Alabama's Department of Industrial Relations [DIR] ruled in Peterson's favor on her claim. (Doc. 39-1 at 1.) Specifically, it found:
(Id.) Based on this finding, DIR concluded:
(Doc. 39-1 at 1.)
On April 5, 2013, Peterson filed a Complaint, which was subsequently amended, alleging that the Foundation (1) discriminated against her on the basis of her race in violation of Title VII and § 1981, (2) retaliated against her for complaining of racial discrimination in disciplining her and terminating her employment in violation of Title VII and § 1981, and (3) wrongfully discharged her in violation of Alabama law in retaliation for her worker's compensation claim. (See generally doc. 1; doc. 16.) The court finds that Peterson has alleged race discrimination and retaliation claims based on disparate discipline with regard to the May 18 Warning and the Final Warning and with regard to her termination.
The Foundation asks the court to enter a summary judgment on Peterson's race discrimination and retaliation claims brought pursuant to Title VII, 42 U.S.C. §§ 2000e-2, 2000e-3, and 42 U.S.C. § 1981. (See doc. 22; doc. 23 at 24-30.) In response, Peterson argues that there are genuine issues of fact with regard to whether she was terminated because of her race or in retaliation for protected activity. (See doc. 38 at 23-31.) She does not respond to the Foundation's Motion for Summary Judgment as to her claims based on the May 18 Warning or the Final Warning. Therefore, to the extent Peterson's Complaint and/or Amended Complaints contain race discrimination and retaliation claims based on adverse actions other than her termination, those claims will be dismissed as abandoned. See Case v. Eslinger, 555 F.3d 1317, 1329 (11th Cir. 2009)(citing Johnson v. Board of Regents, 263 F.3d 1234, 1264 (11th Cir. 2001)); see also Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599-600 (11th Cir. 1995).
Because Peterson relies upon circumstantial evidence to prove her termination claims, the court's analysis is governed by the tripartite framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and later refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000). The Supreme Court has explained this framework as follows:
Id. at 142-43 (internal citations and quotations omitted).
The Foundation contends that Peterson's race discrimination termination claims are due to be dismissed because she "cannot establish that [the Foundation] treated similarly situated employees outside the protected category more favorably." (Doc. 23 at 24.) Peterson argues that she has established her prima facie case by proving she was replaced by a white employee. (Doc. 38 at 24.)
A plaintiff may establish a prima facie case of discriminatory discharge by showing (1) she is a member of a protected class, (2) she was qualified for the job, (3) she was terminated, and (4) either she was replaced by someone outside the protected class or she was terminated for misconduct that was "nearly identical to [misconduct] engaged in by [an employee outside the protected class] whom [the employer] retained." Cuddeback v. Florida Bd. of Educ., 381 F.3d 1230, 1235 (11th Cir. 2004)(citing Reeves, 530 U.S. at 142); Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1185 (11th Cir. 1984)(quoting Davin v. Delta Air Lines, Inc., 678 F.2d 567, 570 (5th Cir. Unit B 1982) and citing McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 282-84 (1976); see also Burke-Fowler, 447 F.3d at 1323 ("When a plaintiff alleges discriminatory discipline, to determine whether employees are similarly situated, [the court] evaluates `whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways.'")(quoting Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999)).
The parties do not dispute that Peterson can show the first three elements of a prima facie case. Peterson has presented evidence that she was replaced by Shelby Pierce, white. Therefore, the court finds that she has established a prima facie case of race discrimination with regard to her termination.
In order to establish a prima facie case of retaliation in violation of Title VII and Section 1981, Peterson must establish: (1) a statutorily protected expression or activity; (2) an adverse employment action; and (3) a causal relationship between the protected expression and the adverse action. Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 978 n.52 (11th Cir. 2008). The Foundation contends that Peterson cannot establish the necessary causal connection between any protected activity and her termination. Peterson argues that she can establish the causal link element by proof of "an intervening pattern of antagonism." (Doc. 38 at 29 [citing Woods v. Bentsen, 889 F.Supp. 179 (E.D. Pa. 1995)].)
"The causal link element [of the retaliation prima facie case] is construed broadly so that a plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated." Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001)(quoting Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir.1998)(quoting E.E.O.C. v. Reichhold Chem., Inc., 988 F.2d 1564, 1571-72 (11th Cir.1993)))(internal quotations omitted); see also McCann, 526 F.3d at 1376.
According to Peterson, she engaged in protected activity (1) when she complained to Pardue in January 2012, (2) when she complained to Wilson in May 2012, and (3) when she filed an EEOC Charge in June 2012. (Doc. 38 at 28.) Defendant notes that as of the May 18, 2012 warning, the only protected activity in which plaintiff had engaged was her January Complaint to Pardue. (Doc. 23 at 26.) However, there is no evidence that the decision makers with regard to the May 18 warning were aware that plaintiff had engaged in protected activity. Although Sanso was aware of plaintiff's protected activity by the time of the final warning, there is no evidence on which a reasonable jury could find that the final warning was related to the protected activity.
Plaintiff was terminated in January 2013. This gap of six months between the date she filed her EEOC charge and the date of her discharge is too long to support a causal connection based solely on temporal proximity. See Brown v. Alabama Dept. of Transp., 597 F.3d 1160, 1182 (11th Cir. 2010)(citing and quoting Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2008)). "Thus, in the absence of other evidence tending to show causation, if there is a substantial delay between the protected expression and the adverse action, the complaint of retaliation fails as a matter of law." Id.
She also points to the EEOC on-site investigation as "the trigger for Sanso's renewed campaign against[her]." (Doc. 38 at 31.) Nothing in the record indicates that Peterson participated in any way in the EEOC on-site investigation. Therefore, the on-site investigation cannot be considered "protected activity" for purposes of determining a connection between protected activity and adverse action. See Clark County School Dist. v. Breeden, 532 U.S. 268, 273 (2001)(noting as "utterly implausible" the plaintiff's "suggestion that the EEOC's issuance of a right-to-sue letter—an action in which the employee takes no part—is a protected activity of the employee"); Gray v. City of Montgomery, 756 F.Supp.2d 1339, 1350-51 (M.D. Ala. 2010)(mere pendency of lawsuit is not "protected activity;" noting that a plaintiff could have multiple instances of protected activity at different stages of a lawsuit).
The court finds that Peterson has not established a causal connection between the alleged protected activity and her termination. Therefore, the court finds that defendant's Motion for Summary Judgment is due to be granted and plaintiff's retaliation claim is due to be dismissed.
Nevertheless, even if the court assumes a prima facie case of retaliation, Peterson's retaliation claim is due to be dismissed because she cannot establish that the reasons for her termination are a pretext for unlawful retaliation based on her protected activity.
The Foundation contends that Peterson's race discrimination and retaliation claims are due to be dismissed because its "reasons for [her termination] were legitimate business judgments that had nothing to do with race or retaliation." (Doc. 23 at 28-29.) Peterson disagrees and argues that she has presented evidence that shows defendant's articulated reasons for her termination are unworthy of credence and that the real reason she was discharged was her race and/or retaliation. (See doc. 38 at 24-31.)
The law in this circuit is well established: A plaintiff may not establish pretext merely by quarreling with the wisdom of the alleged discriminatory and/or retaliatory decision. Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997). "A plaintiff may show pretext by either directly persuading the court that a discriminatory reason motivated the employer, or by indirectly showing that the employer's proffered explanation is unworthy of credence." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). The relevant inquiry on the issue of pretext is "highly focused"—"The district court must, in view of all the evidence, determine whether the plaintiff has cast sufficient doubt on the defendant's proffered nondiscriminatory reasons to permit a reasonable factfinder to conclude that the employer's proffered legitimate reasons were not what actually motivated its conduct." Combs, 106 F.3d at 1537-38 (11th Cir. 1997)(citing Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 605 (11th Cir. 1994)).
"To satisfy this threshold showing of pretext, a plaintiff may discredit the employer's proffered legitimate reasons by showing (1) that the proffered reasons [have] no basis in fact, (2) that the proffered reasons did not actually motivate the employment decision, or (3) that they were insufficient to motivate the employment decision." Walker v. NationsBank of Florida N.A., 53 F.3d 1548, 1564 (11th Cir. 1995)(Johnson, J, concurring)(citations omitted). However, "If the proffered reason is one that might motivate a reasonable employer, a plaintiff cannot recast the reason but must meet it head on and rebut it." Springer v. Convergys Customer Management Group Inc., 509 F.3d 1344, 1350 (11th Cir. 2007)(quoting Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir.2004)). "In other words, it does not matter whether the plaintiff is
Peterson contends that she "has refuted each and every reason that led to her termination other than the HIPAA violations," and a white employee, Aubrey Gamble, had two HIPAA violations and was not terminated. (Doc. 38 at 24.) However, the court finds the record contains no evidence of disputed issues of material fact sufficient to allow a reasonable jury to find that all of the Foundation's articulated reasons for Peterson's termination are unworthy of credence.
As set forth above, the termination memorandum listed a number "current issues," not including the two HIPAA violations, that were the Foundation's reasons for terminating Peterson: (1) leaving check-out desk unattended; (2) continuing "interpersonal working relationship issues" with her coworkers; (3) failing to follow protocol when accepting checks; (4) another patient complaint; and (5) lack of productivity as compared to her coworker Carter. (See doc. 31 at 7-9.)
One of the current issues on the termination memorandum was the incident on January 25, 2013, when, according to Sanso, Peterson was "away from [her] desk for 10 minutes and had not taken any steps to re-route patients." (Doc. 31 at 9.) Sanso noted that Peterson told her that no one was at the check-in desk, but Sanso had "observed that the check-in staff was present." (Id.)
In opposition to the Foundation's Motion for Summary Judgment, Peterson argues, State of Alabama Department of Labor Hearings and Appeals Division found that Plaintiff did not violate her employer's standards in the last event that led to her termination, i.e., her leaving her work station to go to the restroom because of a medical condition on January 25, 2013." (Doc. 38 at 25 [citing doc. 39-1].) As set forth above, the court notes that DIR found Peterson had followed appropriate procedures and was away from her desk for only 3 minutes. Significantly, it did not find that Sanso made up the incident—she saw Peterson was not at the desk when patients were present and she had not asked any employee at the check-in desk to cover for her. Although the court credits the facts as found by DIR, these facts are not sufficient to create a question of fact as to whether or not Peterson's absence from the check-out desk was one of the reasons Sanso decided to terminate her.
As the Alabama Court of Civil Appeals has held:
Hale v. Hyundai Motor Mfg. Alabama, 86 So.3d 1015, 1025 (Ala. Civ. App. 2012).
The court finds that the DIR decision does not compel a conclusion that Sanso did not rely upon Peterson's absence from the check-out desk without informing the check-in personnel when patients were present as a reason for her decision to terminate plaintiff. The court notes that the record contains evidence that Sanso had coached and counseled Peterson about leaving the check-out desk unattended, taking lengthy and/or unscheduled breaks, and not communicating with other employees. Indeed, Sanso had recently received complaints from Carter that Peterson was leaving the check-out desk at times other than her scheduled break time. Peterson admits she left the check-out desk unattended and that she did not notify the check-in employees. Even if she had good and/or legitimate reasons for her actions, these reasons do not rebut head-on this articulated reason for her termination. The fact that Sanso may have been mistaken about the circumstances or length of Peterson's break or that she acted harshly or unfairly, under these circumstances, does not support a finding that she has lied about Peterson's absence from the check-out desk motivating her termination decision.
The termination memorandum lists the January 2013 meeting with Peterson, during which Wilson and Sanso discussed her continuing problems with coworkers and "the importance of making the patient/customer priority over all other `duties'." (Doc. 31 at 8.) Carter had made recent complaints about Peterson's behavior that echoed the prior complaints of Peterson's coworkers. Peterson argues that she did not have any conflicts with her coworkers based on the fact that Sanso had told the EEOC in December 2012 that there were no teamwork problems. (Doc. 38 at 22 [citing doc. 25 at 149].) The record evidence reveals that Sanso received the complaints from Carter and from Peterson after the EEOC's on-site visit, demonstrating on-going tension between these employees. Given the significant history of tension and conflict between Peterson and other employees, the court finds Peterson has not presented substantial evidence that this articulated reason for her termination was a lie.
The termination memorandum states:
(Doc. 31 at 8.) Peterson does not rebut this reason for her termination. She states only that she was not responsible for returned checks and that she knew the proper protocol for accepting checks, including the requirement that specific information, such as driver's license number, must appear on the front of the check. These facts do not rebut Sanso's testimony that she had at least four checks without the proper information and that this was one of the reasons she decided to terminate Peterson. Indeed, the evidence of the improper processing of these checks indicates that Sanso had reason to believe that Peterson was not following established protocol despite knowing the proper procedure and that her failure to record the driver's license information on a check was an on-going concern with her job performance.
The termination memorandum stated that Sanso received a patient complaint that Peterson had been rude during check-out. (Doc. 31 at 7.) Peterson denies that she was rude to a patient; however, she has not presented evidence that Sanso did not receive such a report. Moreover, the court notes that the complaint that Peterson was rude is similar in nature to other complaints Sanso had received about Peterson's interaction with patients and coworkers. The court finds that Peterson has not rebutted this reason for her termination.
The termination memorandum states that one of the current issues with Peterson's job performance was that her productivity was much lower that her coworker's productivity, and "Inequality with workload causes co-worker tension when you are not perceived as being proactive or responsive with your job responsibilities." (Doc. 31 at 8.) The court notes that on January 10, 2013, Peterson performed less than 50% as many transactions as Carter. Peterson contends that Carter, her coworker, told her to do all the precertifications and this caused her numbers to be lower than Carter's numbers. Assuming Sanso was responsible for the adjustment in job duties and further assuming she was aware that precertifications required a significant amount of time to complete, a jury could find that Sanso had reason to believe that Peterson was not unproductive but had merely been otherwise occupied on the days at issue. Therefore, the court finds an issue of fact as to whether this articulated reason for Peterson's termination was insufficient to motivate Sanso to terminate Peterson. See Walker, 53 F.3d at 1564. Nevertheless, assuming evidence of pretext of this single reason is insufficient to establish the remaining reasons are pretext and insufficient to withstand the Foundation's Motion for Summary Judgment. See Crawford, 482 F.3d at 1308-09.
Based on the foregoing, the court finds that Peterson has not shown that all the reason for her termination were a pretext for unlawful discrimination and/or retaliation. Therefore, the Foundation's Motion for Summary Judgment will be granted and Peterson's Title VII and § 1981 termination and retaliation claims will be dismissed.
Peterson alleged that she was terminated because she had filed a claim for unemployment benefits. Alabama law provides, "No employee shall be terminated by an employer
Smith v. CPI, Corp., 417 F.Supp.2d 1253, 1256 (M.D. Ala. 2006).
The parties generally agree that Peterson can establish the first three parts of the prima facie case of retaliatory discharge; however, they disagree as to whether she can establish that she was terminated solely because of her on-the-job injury and her filing of a worker's compensation claim. The Alabama Supreme Court has "identified . . . certain factors that can be considered as circumstantial evidence of a causal connection between an employee's filing a workers' compensation claim and that employee's discharge," including "proximity in time between the filing of the workers' compensation claim and discharge," as well as:
Id. at 248 (quoting Aldridge, 854 So. 2d at 564-65 (quoting Chhim v. University of Houston, 76 S.W.3d 210, 218 (Tex. Ct. App. 2002); Rebarchek v. Farmers Coop. Elevator & Mercantile Ass'n, 35 P.3d 892, 899 (Kan. 2001))).
Peterson was terminated over a year after her on-the-job injury and six-months after she returned to work from surgery. Although she alleges that her coworkers were unhappy she had missed work for reasons related to her injury, she has presented no evidence that Sanso, the decision maker, expressed any negative attitude toward her "injured condition." She has pointed to no discriminatory treatment in comparison to similarly-situated employees or a failure to adhere to some company policy. Moreover, as set forth above, Peterson has not presented evidence that all the reasons for her termination were pretextual. Based on the evidence, the court finds that no reasonable jury could find that Peterson was terminated solely because of her on-the-job injury or her workers' compensation claim, and, therefore, Peterson has not demonstrated a prima facie case of retaliatory discharge.
The Foundation's Motion for Summary Judgment will be granted and Peterson's retaliatory discharge claim will be dismissed.
For the foregoing reasons, the court is of the opinion that there are no material facts in dispute and the Foundation is entitled to judgment as a matter of law. An Order granting the Foundation's Motion for Summary Judgment, (doc. 22), will be entered contemporaneously with this Memorandum Opinion.
Combs, 106 F.3d at 1543 (11th Cir. 1997)(emphasis in original).
