Patterson v. AJ Services Joint Venture I, LLP, No. 1:2015cv00138 - Document 54 (S.D. Ga. 2017)
Court Description: ORDER granting 31 Motion for Summary Judgment. The Court directs the Clerk to enter Judgment in favor of Defendant on all of Plaintiff's claims, TERMINATE all other pending motions, and CLOSE this case. Signed by Judge J. Randal Hall on 03/02/2017. (maa)
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Patterson v. AJ Services Joint Venture I, LLP Doc. 54 IN THE UNITED FOR THE STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION TONYA K. PATTERSON, * • Plaintiff, * v. * AJ SERVICES JOINT VENTURE I, 115-138 * LLP CV * • Defendant, * ORDER Presently before the Court is Defendant's motion summary judgment on all of Plaintiff's claims. (Doc. Clerk of of Court gave Plaintiff timely notice judgment motion and the summary judgment rules, file affidavits consequences of or other default. (Doc. requirements of Griffith v. Cir. 1985) (per curiam), materials in 38.) Wainwright, opposition, Therefore, 772 F.2d 822, have been satisfied. The time for filing materials the The summary of the right to and the 825 the notice (11th Plaintiff filed a response brief, and Defendant filed a reply brief.1 53.) 31.) for (Docs. 52, in opposition has expired, 1 Defendant also filed a motion seeking to exclude, in whole or in part, several of the declarations filed by Plaintiff in opposition to Defendant's motion for summary judgment, while Plaintiff filed a motion seeking to withdraw and/or substitute several of the aforementioned declarations and submit an amended response brief. (Docs. 45, 46.) The Court resolved these motions, at least in part, through its Order dated September 30, 2016. (Doc. 51.) Dockets.Justia.com and the motion is ripe for consideration. the record evidence, relevant law, and Upon consideration of the briefs of counsel, the Court GRANTS Defendant's motion for summary judgment. I, The present dispute BACKGROUND arises out of Defendant's of Plaintiff's employment in April 2014. termination Plaintiff alleges that she was terminated on a pretextual basis approximately ten days after sustaining physical injuries at work a worker's compensation claim) medical leave. Plaintiff (for which she filed and several days after requesting maintains that Defendant's termination of her employment was an act of retaliation for taking medical leave as gender and injuries. 2015, as her discrimination disabilities Plaintiff § 2601, 42 Civil U.S.C. Rights VII"). arising instituted et seg. ("FMLA"), § 12101, Act of et seg. 1964, 42 the her from based these instant upon as her work-related suit on June 10, 29 the Americans with Disabilities ("ADA"), U.S.C. and Title VII § 2000e, et seg. of the ("Title Viewing the evidence and factual inferences in the light most favorable to Plaintiff, are against alleging violation of the Family and Medical Leave Act, U.S.C. Act, well the relevant facts of this dispute follows. Plaintiff was assistant pursuant hired to an by Defendant as an administrative offer letter dated December 4, 2011. (PL's Resp. 16. )2 to Def.'s St. of Mat. On January 1, 2012, Defendant at the Moncrief Columbia, Facts ("PSMF"), Doc. 42-1, f Plaintiff began her employment with Hospital South Carolina.3 located (Id.) at Fort Jackson in In March or April of 2012, Plaintiff was transferred to Defendant's worksite at the Dwight D. Eisenhower Army Medical Georgia ("Fort administrative 2014.4 Gordon"), assistant (Id. H 18.) Plaintiff's direct Center where until at she her Fort Gordon remained in Augusta, employed termination on as April an 24, From August 6, 2012 through April 24, 2014, supervisor was Environmental Services at Fort Gordon, Defendant's Mr. Director Claude Edouard. of (Id. HH 21-22.) 2 All material facts set forth in a moving party's statement of material facts that are supported by a citation to a particular part of materials in the record are deemed to be admitted unless controverted by a statement served by the opposing party containing its own citation to a particular part of materials in the record, although the Court retains discretion to consider other portions of the record. See Fed. R. Civ. P. 56(c) (1); LR 56.1, SDGa. 3 Defendant is a joint venture between American Eagle Protective Services Corporation and J&J Worldwide Services, Inc. and provides housekeeping and environmental services for medical centers owned and operated by the United States Army, including those facilities located at the Dwight D. Eisenhower Army Medical Center at Fort Gordon in Augusta, Georgia. (PSMF H 1-2.) 4 In her role as administrative assistant, Plaintiff's job duties included, inter alia, "prepar[ing] invoices, reports, memos, letters, [and] financial statements; fil[ing] and retriev[ing] corporate documents, reports and records; answer[ing] the telephones; maintain[ing] the record management systems; d[oing] basic book keeping work; issu[ing] employee checks and statements; compil [ing] employee time and payroll data from time sheets and other records; . . . review[ing] time sheets and other information to detect and reconcile payroll discrepancies; verif[ying] attendance, hours worked and pay adjustments; record[ing] employee information such as exemptions, transfers and resignations in order to maintain up to date payroll records; and prepar[ing] background security clearance procedures for new associates." (Doc. 19.) 52, at 4-5; Patterson Dep. at 33:2-37:16 & Ex. D-4; see also PSMF % In Mr. files, April 2013, while reviewing Defendant's personnel Edouard noticed that several employee evaluations had not been placed into their respective personnel files. 29j see also Dep. 183:3-184:8, his of Claude Edouard, 185:4-22.) direct On April 11, supervisor, Curry Newton, that Mr. Doc. Defendant's 34, 2013, at Mr. Director of 174:21-175:4, Edouard advised Operations, [Plaintiff] provided Ex. P-ll.) Plaintiff Mr. in regards to documents not being filed in a timely manner to personnel files." Dep., % Edouard would wbe doing a written note to file and to review with Edouard (Id. with On a April memorandum 15, 2013, dated that (PSMF t 30; Mr. Edouard same day in which he outlined Plaintiff's job duties and specifically noted that it was wimperative date at all times Patterson, Doc. understood this failure to On employee . . . ." 33, Ex. records (PSMF UK 31-34; D-7.) memorandum properly Patterson Dep. that to maintain Dep. Plaintiff be a are for files. August you 13, 2013, Mr. were Ex. P-13.) Edouard going to In response, get multiple increases this year. increase." to (PSMF she alleged ^ 36; at 67:10-69:23.) Edouard Dep., thought that her emailed Mr. regarding whether Plaintiff should receive a pay raise. 38; up of Tonya K. admits reprimand employee kept (PSMF K 39; rid of Mr. her, Newton (PSMF f Newton wrote, also she has UI had I would say no to the anniversary Edouard Dep., Ex. P-13.) In response thereto, yet. be Mr. Edouard wrote, "Not going to get rid of her just Trying to give her the opportunity to improve. surprised if she looks into moving on once she Wouldn't realizes no raise." (PSMF % 40; Edouard Dep., 2013, Edouard again emailed Mr. Newton regarding Plaintiff's Mr. Ex. P-13.) Ex. P-17.) On April 1, 2014, to Plaintiff. Mr. different "were not submitted over (PSMF stated, 1| 45, Mr. employee reprimands were in files Edouard issued an employee reprimand (PSMF f 45; Patterson Dep., April 1, 2014 reprimand, two a up to Patterson inter alia, and found employee [s'] date month ago D-8.) Edouard stated that he files [these] Ex. to Dep., with be Ex. that "not In the had pulled all later than] documents placed that had in employee's D-8.) Mr. Edouard been files." further that Plaintiff was "expected and required to three (3) days from (PSMF % 45, Patterson Dep., Ex. D-8.) the April 1, 2014 reprimand, had all "file[d] noted file [s] " and that these update employee records with all documents presented NLT not 16, (PSMF % 41; Edouard alleged failure to satisfy her job duties. Dep., On August documents receipt documents." Plaintiff refused to sign stating that it was received of [i.e., immediately" "bogus" or as she "had other obligations or responsibilities that prevent her from filing . . . documents in a timely manner." (PSMF % 46; Patterson Dep., Ex. D-8; Decl. of Claude Edouard, Doc. 31-3, Ex. D.) On April 3, 2014, Mr. Edouard drafted regarding Plaintiff in which he stated that, discovered issuing deficiencies the April 1, in Plaintiff's 2014 employee which prepared he followed another stated that through verifications" on he a On memorandum concerned for other 11, reprimand inquired her employment f 14 & Ex. job regarding discovered Mr. basis Edouard Plaintiff, of and him in as whether opportunities F.) 5 Plaintiff baldly alleges memorand[a] [were] to to Plaintiff. On April 8, 2014, Mr. Plaintiff, that she with had the - prepared which he to whether she should both of allegedly replied to in the affirmative. Decl. subsequent in "not background (PSMF t 51 ;5 Edouard Decl. 2014, regarding had he had for new hires by Defendant in alleged dereliction April Plaintiff had consistent of her assigned duties. E.) memorandum memorandum inter alia, filings (PSMF H 47; Edouard Decl. f 12 & Ex. D.) Edouard a % 13 & Ex. yet another stated she be which (PSMF f that should looking Mr. 52; be for Edouard Edouard Mr. Edouard further stated in this April that "the evidence tends to show that [several] created after Plaintiff went out on medical leave," namely those memoranda dated April 8 & 11, 2014. (See PSMF %% 51, 52.) Plaintiff, however, offers no evidence in support of this claim, but rather directs the Court to u[s]ee [the] brief [in opposition to summary judgment] filed by Plaintiff herewith." (See PSMF % 52.) Yet the Court is unable to locate any reference in Plaintiff's brief regarding this issue, let alone any evidence in the record contesting the date on which these memoranda were authored. Indeed, the only evidence conceivably related to this assertion is the testimony of Mr. Edouard that, on or about February 1, 2016, the computer on which he drafted his memoranda regarding Plaintiff failed. (Edouard Dep. at 212:21-25, 215:11-217:10.) Standing alone, however, this computer failure does not create a factual dispute as to the date these memoranda were created, particularly given that Plaintiff has never brought any concerns of spoliation to the Court's attention. 11, 2 014 memorandum would be the that he had informed Plaintiff replaced as administrative assistant at future due (Edouard Decl., to her Ex. allegedly F.) that referenced in this memorandum ever occurred. she some point in inconsistent Plaintiff denies that performance. the conversation (Patterson Dep. at 105:6-21.) On April 14, 2014, to her knee, wrist, and shoulder after tripping over a telephone cord while at Plaintiff's accident, medical work. attention Plaintiff suffered work-related injuries (PSMF Mr. Edouard (which she memorializing the event. Later that day, Mr. t 53.) being instructed did) and (PSMF f 54; notified Plaintiff created a afternoon. seek memorandum Edouard Decl., Ex. G.) We are in stating: the process of actively bringing on board a new Administrative Assistant various to of Edouard sent an email to Defendant's Human Resources Director, Ms. Denise Garza, Good After reasons. The attached ["Administrative Assistant files Issues.pdf"] and for memorandums will give you a clearer picture as to why. Please provide any input and/or feedback that you have so that we can take all appropriate actions/steps on our part, especially taking into consideration the "accident" that took place earlier today with [Plaintiff] . (Doc. 42-9.) Plaintiff did not return to work - either that day or at any other time - after her injury. days after her injury, Approximately three Plaintiff called Defendant to inquire about receiving leave under the FMLA.6 Dep. at 109:7-9, 110:4-25.) "unable to perform her job, October 2014." (PSMF f 55; Plaintiff admits Patterson that she with or without restrictions, (PSMF t 84; 2014, Mr. Patterson Dep. at was until 24:18-25:22, 112:24-113:25.) On April 23, Edouard prepared another memorandum regarding Plaintiff. (PSMF % 62; Edouard Decl., this Edouard memorandum, another alleged reprimands failure in an Edouard Decl., his Mr. attention Ex. on by stated Plaintiff employee's personnel I.) that to he 22, 2014 failed to properly verify payroll that had properly file. He also stated that April Ex. Plaintiff entries In discovered file (PSMF it I.) written ^% 61-62; was brought had to allegedly and pay rates, which had led to overpayments to two employees for approximately nine months. (PSMF ft 58, 60, 62; Edouard Decl., Ex. I.) On or about April 24, 2014, terminate Plaintiff's employment. Mr. Edouard prepared a written Mr. Edouard (PSMF f 63.) employee decided to That same day, reprimand in which he restated his aforementioned allegations of Plaintiff's poor work performance set forth in those memorandum/reprimands dated April 15, 2013, April 1, 2014, and April 23, 2014, and announced his decision to terminate Plaintiff's employment effective that day. (PSMF % 64; Edouard 6 Plaintiff also filed a incident. (Compl. % 7.) Decl., workers' Ex. J.) Mr. compensation 8 Edouard claim in then relation called to this Plaintiff and advised her of her termination (but did not give any reason for her termination) . Patterson Dep. at 114:3-116:3, & 119:1-16; P-32.) On Dep. April (PSMF K 66; of Curry Newton, 28, 2 014, Mr. Doc. 37, Edouard Exs. P-30 prepared a termination/transfer form memorializing Plaintiff's termination, wherein he repeated the content of the April 24, and checked the box Job Satisfactorily" thereon entitled as reason the *Fired for - 2014 reprimand Unable Plaintiff's to Perform termination. (PSMF % 67; Patterson Dep., Ex. D-12.) On June questionnaire 30, 2014, ("Charge") 19, 2014, Rights" which (PSMF t noted 2015, from that the the filed Charge 92-94; Plaintiff received a EEOC EEOC 7 In her Charge, Plaintiff states: 2011, a (PSMF ft in response was " [b] ased upon its investigation, 16, an intake 95; Decl. of Patrick Lail, Plaintiff with the EEOC.7 about March 30, of submitted to the United States Equal Employment Opportunity Commission (uEEOC"). On August Plaintiff to "closing of Doc. Ex. A.) Discrimination 1-2.) On or "Dismissal and Notice Plaintiff's its file," Charge, and that the EEOC is unable to conclude "I began working for as an Administrative Assistant. [Defendant] On April 14, 2014, I on August suffered an on the job injury and went on medical leave. I am a person with a disability and made company officials aware of my medical condition. On April 24, 2014, I was discharged. I was told by Claude Edouard, Director, that I was discharged for failure to submit leave to cover my absence. I believe I have been discriminated against because of my sex (female) , in violation of Title VII of the Civil Rights Act of 1964, as amended, and because of my disability, in violation of Title I of the Americans with Disabilities Act of 1990, as amended." (Doc. 1-2.) Notably, Plaintiff checked boxes indicating that she was asserting claims for discrimination based on her "sex" and her "disability," but did not check the box for "retaliation." (Id.) that the information statutes.'7 obtained (Doc. 2016, violations of the 1-1.) 10, establishes On June Plaintiff instituted the present action by filing her complaint in the United States District Court for the Northern District 02072-WSD-JSA. (Doc. transfer of Georgia, 1.) this Civil On July 27, action to Action 2015, this No. 1:15-CV- Defendant filed a motion to Court pursuant U.S.C. § 14 04, which the United States Magistrate Judge for the Northern District of Georgia granted on August 31, 2015. to 28 (Doc. 8.) II, Summary genuine SUMMARY judgment dispute as to is JUDGMENT STANDARD appropriate any material only fact entitled to judgment as a matter of law." The Court depositions, together shall grant summary the affidavits, if any, and "there no movant the is is Fed. R. Civ. P. 56(a). judgment answers to interrogatories, with if "if the pleadings, and admissions on file, show that there is no genuine issue as to any material fact and that the moving party is entitled to Corp. v. N. summary judgment as Crossarm Co., 2004); Fed. R. Civ. P. 56(c). 357 a matter of F.3d 1256, 1259, law." 1260 Hickson (11th Cir. The "purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for 10 trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted). xx [The] initial basis party seeking responsibility for [record its motion, before the of summary judgment informing and court] the district identifying which it always movant 477 U.S. carries 317, its court of the portions of the demonstrate the v. believes 323 (1986). If initial burden, - the the Celotex Corp. those absence of a genuine issue of material fact." Catrett, bears and only non-movant if - may the avoid summary judgment by demonstrating that there is indeed a genuine issue as Clark, to the Inc., "material" 929 material F.2d facts 604, 608 its (11th case. Cir. Clark 477 U.S. 242, 248 (1986). . . . [only] v. 1991). if they could affect the outcome of the governing substantive law. 'genuine' of Facts the ruling on & are suit under Anderson v. Liberty Lobby, Inc., A dispute of those material facts xxis if the evidence is such that a reasonable jury could return a verdict for the non-moving party." When Coats the motion, the Court must Id. view evidence in the record in the light most favorable to all the the non- moving party and resolve all factual disputes in the non-moving party's favor. Matsushita, 475 U.S. at also avoid weighing conflicting evidence. 255; McKenzie 934 (11th v. Cir. Davenport-Harris 1987). The Anderson, Funeral Nevertheless, 11 587. the Home, Court must 477 U.S. at 834 F.2d non-moving 930, party's response to the motion for summary judgment must consist of more than conclusory allegations, will not Cir. 1990); 1989) . suffice. and a mere Walker v. Pepper v. Darby, Coates, 887 "scintilla" 911 F.2d F.2d 1573, 1493, of 1498 evidence 1577 (11th xxThe non-moving party cannot create a genuine material fact through speculation, is "merely colorable' v. Dougherty Cty. Sys. , 382 2010) (citing Shiver v. Chertoff, 2008; Anderson F. App'x Liberty or evidence that 914, Inc., 477 Bryant 917 (11th Cir. 1343 549 F.3d 1342, Lobby, Cir. issue of or xnot significantly probative.'" Sch. v. conjecture, (11th (11th Cir. U.S. 242, 249-50 (1986))). Ill, In the terminating present her DISCUSSION action, employment Plaintiff approximately alleges ten that, after days by she injured herself at work (and seven days after she asked for FMLA leave), Defendant: (a) interfered with her rights under the FMLA and/or retaliated against her for taking leave in violation of the FMLA; (b) accommodations and/or in violation of based on her failed provide her retaliated against the ADA; gender to in and/or violation (c) of aforementioned FMLA & ADA violations. reasonable her medical condition discriminated against her Title the VII Defendant, summary judgment on each and every one 12 with of by way of in turn, Plaintiff's seeks claims, alleging that Plaintiff's poor performance least in termination was in response to her (evidence of which was allegedly discovered, part, during this ten-day timeframe), and at that Plaintiff has failed to demonstrate a genuine issue of material fact as to this proffered reason. A. Under xxentitled the to a FMLA, an total of FMLA CLAIMS eligible 12 employee workweeks of inter is, leave during alia, 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" and to be reinstated to her original (or an U.S.C. equivalent) position §§ 2612(a)(1)(D), "on return 2614(a)(1). from such Supply, Inc., 789 F.3d 1188, alleges that rights. See 29 U.S.C. her employer § 2615(a)(1) the attempt subchapter."). claim, in to exercise, Another which an cause employee (11th Cir. 2015). claim, in which an with her FMLA (xxIt shall be unlawful for any right of Beltram interfered any employer to interfere with, restrain, of or White v. 1191 One such cause of action is an "interference" employee 29 xxTo protect these rights, the FMLA creates a private right of action." Edge Tool leave." action alleges or deny the exercise provided under this is a that "retaliation" her employer discriminated against her because she exercised her FMLA rights. See 29 U.S.C. § 2615(a)(2) (xxIt 13 shall be unlawful for any employer against by to any individual this FMLA discharge or have any other manner discriminate for opposing any practice made unlawful subchapter."). claims in Because different interference elements, the and Court retaliation addresses each claim in turn. 1. xxAn FMLA INTERFERENCE interference claim has two CLAIM elements: was entitled to a benefit under the FMLA, denied her that F.3d at 1191 1235 (11th irrelevant benefit." (1) and Beltram Edge Tool the (2) her employer Supply, (citing Krutzig v. Pulte Home Corp., Cir. to 2010)). an Notably, interference an Id. at Inc., 789 602 F.3d 1231, employer's claim. employee motives 1191 n.2 are (xxAn employer may be liable for interference despite good intentions; its 'motives 1235)). are irrelevant.'" (quoting Krutzig, An employee's rights under the FMLA, absolute. Indeed, violating the FMLA an xxif employee the may employee be 1236. leave, Moreover, [29 "the U.S.C] FMLA guarantees § 2612(a)(1), and if employee cannot perform an essential entitled to 29 reinstatement, Edge Tool Supply, Inc., C.F.R. 789 F.3d at 1197. 14 at are not terminated without been dismissed Krutzig, 602 F.3d at only twelve after twelve job function, § F.3d however, would have regardless of any request for FMLA leave." 602 weeks weeks she 825.216(c)." of the is not Beltram Here, Plaintiff's interference claim fails as a matter of law because she has explicitly admitted that she would have been unable to return to work, with or without restrictions, until more than twelve weeks after initially taking FMLA leave. id. ; see also (6th Cir. not a Edgar v. 2006) employment Prod. , Inc. , 443 (holding that, relevant undisputed JAC consideration information action an 501, because an employer's in an obtained that F.3d FMLA employee 509-514 intent is interference subsequent would to have an been See claim, adverse unable to return to work at the end of the 12-week statutory leave period provides claim, a but defense that as such a matter of law to information does a not FMLA interference provide an absolute defense to a FMLA retaliation claim (but may limit the relief to which the employee is entitled to under a retaliation claim)). Plaintiff herself injured at work on April 14, 2014 explicitly admits that she would have been unable to work, with or without restrictions, until at sometime in September 2014. (See Patterson Dep. 105:22-106:4, see 112:24-113:25; also PSMF assuming arguendo that the twelve weeks of tH the and return to earliest at 24:18-25:22, 53, 84.) Even leave guaranteed to Plaintiff under the FMLA did not begin to run until she formally inquired regarding obtaining FMLA leave on April 17, 2014, statutorily-guaranteed leave would have ended on July 10, well short of the date she admits 15 she could have her 2014, returned to work. Accordingly, under the FMLA and Plaintiff therefore had her no right interference to reinstatement claim fails as a matter of law.8 2. FMLA RETALIATION To prove FMLA retaliation, CLAIM an employee must show that her employer intentionally discriminated against her for exercising an FMLA right. Martin v. Brevard Cty. 1267 2008) § (11th Cir. 825.220(c)). 'bringing showing a "Unlike [her] impermissible 1267-68 (citing 29 U.S.C. retaliation that an claim or faces the actions claim, were 29 C.F.R. an increased Water Works 1207 543 F.3d 1261, § 2615(a)(2); discriminatory (quoting Strickland v. 239 F.3d 1199, Sch., interference employer's retaliatory of Birmingham, Pub. employee burden motivated animus.'" & Sewer Bd. (11th Cir. of by an Id. at of City 2001)). Absent direct evidence of retaliatory intent,9 courts apply the burden-shifting 8 Plaintiff framework established by the baldly alleges that, Supreme Court u[u]nder the policies and procedures of [Defendant], [Plaintiff] would have remained on Family Medical Leave for up to six months." (Doc. 52 at 20.) Even ignoring that this argument is not factually supported by the record, (see Garza Dep., Ex. 37, at 28-32, 38 (sections of Defendant's employee handbook explaining its leave of absence policies)), it is not supported by relevant law. See 29 U.S.C. § 2612(d)(2) (allowing employers to require their employees to substitute any accrued leave for leave provided under the FMLA) ; Slentz v. City of Republic, Mo., 448 F.3d 1008, 1010 (8th Cir. 2006) ("Under the FMLA, twelve weeks of leave is both the minimum the employer must provide and the maximum that the statute requires."). As such, even if Plaintiff's factual allegations were true, she would have a breach of contract claim as opposed to an FMLA claim. To allow otherwise "would unduly and unfairly burden employers." Strickland v. Water Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001) ("To balance the needs of employers and sick employees, Congress intended that the FMLA provide employees with a minimum entitlement of 12 weeks of leave, while protecting employers against employees tacking their FMLA entitlement on to any . . . leave benefit offered by the employer."). 16 in McDonnell Martin, Douglas 543 Telecomms., F.3d Inc., that approach, that (1) [s]he Corp. at 231 v. 1268 Green, (citing F.3d 791, 798 411 U.S. Brungart (11th Cir. 792 v. (1973). BellSouth 2000)). "Under an employee claiming FMLA retaliation must [s]he suffered show engaged in statutorily protected activity, (2) an the adverse employment decision, and (3) decision was causally related to the protected activity." (citing Brungart, 231 F.3d at 798) . "Once establishes a prima facie case of retaliation, to the employer Sys. , Inc. , Miles v. 439 M.N.C. articulate Id. adverse action." to (citing Hurlbert v. F.3d Corp. , 1286, a 1297 (11th 750 F.2d 867, 869 Cir. employee the burden shifts legitimate St. the Id. reason for the Mary's Health Care 2006)); (11th Cir. see 1985) also ("The 9 Despite Plaintiff's arguments to the contrary, this is not a direct evidence case. Direct evidence is evidence that, if believed, proves the existence of a fact without inference or presumption. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (citations omitted). "Only the most blatant remarks, whose intent could mean nothing other than to discriminate on the basis of some impermissible factor constitute direct evidence of discrimination." Id. (quotations and citations omitted); see also Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189-90 (11th Cir. 1997) (collecting examples of direct evidence of discrimination). "If the alleged statement suggests, but circumstantial Here, without does not prove, a discriminatory motive, then it is evidence." Wilson, 376 F.3d at 1086 (citations omitted). any further explanation, Plaintiff contends that she has "provided direct evidence of Defendant's discriminatory intent" in the form of Mr. Edouard's email to Ms. Garza dated April 14, 2014. (Doc. 52 at 22; see also Doc. 42-9 ("Good afternoon. We are in the process of actively bringing on board a new Administrative Assistant for various reasons. The attached files and memorandums will give you a clearer picture as to why. Please provide any input and/or feedback that you have so that we can take all appropriate actions/steps on our part, especially taking into consideration the 'accident' that took place earlier today with [Plaintiff] .").) But this evidence, at best, leaves i t to the trier of fact to infer discrimination; therefore, this evidence is circumstantial and not direct. See, e.g. , Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1242 n.ll (11th Cir. 2016); Earley v. Champion Int'1 Corp., 907 F.2d 1077, 1081-82 (11th Cir. 1990) . Plaintiff has not introduced any other - and the Court is unable to locate any - direct evidence of discrimination in the record. 17 burden on the [employer] is one of production rather than persuasion.") . "If the employer does so, the employee must then show employer's that the presenting evidence factfinder to proffered reason "sufficient conclude that the to was pretextual permit reasons a given by by reasonable the employer were not the real reasons for the adverse employment decision.'" Id. (quoting Hurlbert, 439 F.3d at 518 F. App'x 803, (11th Cir. 807 1298); 2013) see also Haugabrook, (UA proffered reason is not pretext for discrimination unless it is shown both that the reason was false and (emphasis original) pretext 'either discriminatory that discrimination was (citations omitted)). directly reason by more real reason." "A plaintiff may show persuading likely the the motivated court the that employer a or indirectly by showing that the employer's proffered explanation is unworthy of App'x 93, Affairs 97 v. credence.'" (11th Burdine, plaintiff may inconsistencies, Cir. 450 point Diaz v. 2010) U.S. (quoting 248, to proffered Jefferson Cnty., or reason." Comm'n 2006)). of Notably, while 256 Tex. Id. 446 close Dep't (1981)). 'weaknesses, incoherencies, employerfs Transatlantic Bank, To F.3d temporal 1160, of do F. Cmty. so, "a implausibilities, contradictions' (quoting 367 Brooks 1163 proximity in v. the Cnty. (11th between Cir. the protected activity and an adverse employment action is evidence of pretext, it is "probably insufficient to establish pretext by 18 itself," particularly where well before F.3d at 2 006) a 1298; ("We Drago v. hold that, contemplates engages plaintiff's in an gradual protected Jenne, in a adverse protected adverse 453 job actions activity. F.3d 1301, retaliation case, employment activity, action temporal began Hurlbert, 1308 439 (11th Cir. when an employer before an proximity employee between the protected activity and the subsequent adverse employment action does not Special suffice Counsel, ("Saffold simply contemplated, Saffold 95 causation."); also F. 147 see 951 (11th Cir. App'x present of based yet (2d Cir. 2001), facie through failure Swiss as on (June Am. 6, her 'previously produce Reinsurance 2005) because the v. 'causal determined' to amended Saffold the case with definitively on her Slattery v. evidence prima her not 949, any followed though company."); F.3d 87, to element supervisor terminate show Inc., failed connection' the to plan to revenue for Corp., 248 2001) ("Where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before engaged in any protected activity, does not arise."). the plaintiff had ever an inference of retaliation Establishing the elements of the McDonnell Douglas framework alone is not necessarily sufficient to survive summary judgment, however, as the critical decision that must be made is whether concerning the the employee employer's has "created discriminatory 19 a intent." triable issue Flowers v. Troup Cty. , 2015) (citing 1328 (11th Cir. Here, Ga. , Sch. Smith Pis t. , v. 803 F.3d 1327, Lockheed-Martin 1336 Corp., 644 (11th F.3d Cir. 1321, 2011)). even assuming arguendo that Plaintiff has established her prima facie case,10 her FMLA retaliation claim fails because Plaintiff has failed to demonstrate that Defendant's non-discriminatory reason for her termination alleged poor work demonstrates a performance) genuine is issue of (i.e., pretextual material Defendant's allegedly discriminatory intent. position that Plaintiff Defendant's argues Plaintiff was that: an proffered (i) contrary exemplary employee Plaintiff's or fact otherwise concerning In support of her reason to proffered is pretextual, Defendant's and "that claims, most of Plaintiff's reprimands are clearly a transference of blame from [Mr.] Edouard - who was failing to do his job - onto Plaintiff;" and (ii) Defendant (and Mr. Edouard) of discriminating those who against required medical female "had a pattern and practice employees . . leave accommodations" to similarly-situated male employees."11 . particularly when compared (Doc. 52, at 25-30.) 10 Defendant disputes whether Plaintiff has sufficiently established a prima facie claim under the McDonnell Douglas framework. (See Doc. 16, at 10-12.) Because Plaintiff's claims fail on their merits regardless of whether she has established a prima facie case, however, the Court will assume for the sake of its analysis, without deciding, that Plaintiff has established her prima facie case of FMLA retaliation. 11 Plaintiff also argues in her conclusion that pretext has been demonstrated because Mr. Edouard had allegedly decided to terminate Plaintiff's employment as of April 14, 2014 while all of the stated reasons for terminating Plaintiff were discovered after that 20 date (i.e., Defendant's decision to As an initial discrimination guess does matter, statutes [employers'] it replace the do not Court allow employers' notions courts assesses matter how Alvarez (11th "the v. are not prudence medieval, Royal Cir. a of routine Employers nor the are department" 610 free in 8 03 F.3d at 133 8. Id. F.3d to that decisions, mistaken." Inc., second- dealing employment or "to anti judgments, fair usuper-personnel Developers, 2010) ) . business about federal courts See Flowers, high-handed, Atl. that federal nondiscriminatory workplace with that of judges." Federal notes no (citing 1253, make 1266 adverse employment decisions against their employees for "a good reason, terminate Plaintiff termination). (See predates Doc. 52, the existence of the reasons given for at 30 ("As of 4:58 [pm] Monday[,] April her 14, 2014, [Mr.] Edouard had decided to terminate Plaintiff. Therefore, the stated reasons for terminated [sic] Plaintiff - all of which were discovered April 15 or later - cannot be true."); see also Doc. 42-9 ("Good Afternoon. We are in the process of actively bringing on board a new Administrative Assistant for various reasons. The attached files and memorandums ["Administrative Assistant Issues.pdf"] will give you a clearer picture as to why. Please provide any input and/or feedback that you have so that we can take all appropriate actions/steps on our part, especially taking into consideration the 'accident' that took place earlier today with [Plaintiff].").) As an initial matter, Plaintiff has neglected to include a copy of the "Administrative Assistant Issues.pdf" document referenced in the email to which she refers, thereby depriving the Court of any insight as to Mr. Edouard's intentions and/or his reasoning for bringing on a new administrative assistant. (See Doc. 42-9.) More importantly, however, the email to which Plaintiff is referring does not actually state that Mr. Edouard intended to terminate Plaintiff's employment that day, but rather that he was "in the process" of bringing a new Administrative Assistant "on board." (Id.) Plaintiff's argument also ignores that specifically refers in her final reprimand dated April 24, in the termination form dated memoranda/reprimands from April 16, Decl., Ex. J; Patterson Dep., Ex. April 28, 2014 2013 and April 1, D-12; Mr. Edouard 2014 - as well as to the prior 2014. (See Edouard see also Patterson Dep., Exs. D-7 & D-8.) Plaintiff also ignores those memoranda dated April 3, 8, & 11, 2014, in which Mr. Edouard, inter alia, notes alleged deficiencies in Plaintiff's performance. (See Edouard Decl. Exs. D, E, F.) Finally, even ignoring all of these issues, Plaintiff has explicitly admitted that "[o]n or about April 24, 2014, Mr. Edouard decided to terminate Plaintiff's employment." (PSMF ^ 63.) 21 a bad reason, reason at a all, discriminatory Commc'ns, is 738 not reason as based long as reason." 1187 allowed nondiscriminatory to reasons for that of the employer. erroneous its Id. F.2d 1181, on [decision] (citing Nix v. (11th Cir. recast or facts, an substitute with the 229 F.3d 1012, stated by the Eleventh Circuit, one, a "A plaintiff proffered business judgment Provided that the proffered reason is quarreling Chapman v. AI Transp., for no Radio/Rahall 1984)). his for not employer's meet that reason head on and rebut it, simply is WLCY one that might motivate a reasonable employer, succeed by or an employee must and the employee cannot wisdom 1030 of that (11th Cir. reason." 2000). As xx[i]n analyzing issues like this we must be careful not to allow . . . plaintiffs simply to litigate whether they are, in fact, good employees." Alvarez, 610 F.3d at 1266 ("The question to be resolved is not the wisdom or accuracy of [the employer's] conclusion that [the employee's] performance was unsatisfactory, or whether the decision to fire her was prudent or fair. unlawful discriminatory Instead, animus our sole concern is whether motivated the decision." (internal quotations and citations omitted)). Here, Plaintiff disputes the evidence indicating that her poor work performance was the actual reason she was terminated. Mr. Edouard performance on reprimanded at Plaintiff for least two occasions 22 her alleged poor and prepared numerous memoranda/reprimands Plaintiff disputes and maintains alleging the that veracity deficient of these alleged she performed her job duties exemplary fashion and that any allegations simply blame-shifting by Mr. and failures. was fired Mr. unavailing as made wrong Plaintiff's inaccurate was the her 518 for (emphasis 1267 is nothing decision is for in an overall the contrary are his F. not more to but original) than App'x on show own inadequacies claim that inaccurate is Defendant information. Defendant's reasons for based on or discrimination Chapman, F.3d 229 ("A proffered unless it is shown discrimination was (citations argument that unlawful See 807 this ill-founded rather at a that were factor. and that mistakes, based discrimination false own employment motivating reason was Edouard's information, Haugabrook, pretext it burden terminating Edouard to deficiencies To the extent that Plaintiff is alleging that she for the performance. omitted); the at reason 1030; is not both that the real reason.") Alvarez, 610 F.3d at ("Royal Atlantic's proffered reason for firing Alvarez was that her performance was unsatisfactory. Even if Alvarez could show it was satisfactory by some objective standard, she has not raised a genuine issue of material fact as to the true she was fired. concerned, ... [Alvarez's So far as supervisor] job was discrimination within her reason law rights is to insist on a controller who could whip the company's books into 23 shape overnight while accommodating her own prickly personality and performing every task perfectly, no chance free to as she she ever find such a miracle set unreasonable or even impossible did not also Wallace Cir. 1997) reasons would even if there was little or apply v. SMC them in a Pneumatics, (holding that Inc., 103 F.3d "embarrassing" the superior, a mistaken whistleblower, statutorily plaintiff's the a evaluation, employer's protected officer's desire being personal to shift blame 1394, to long but 1399 see (7th non-actionable "nepotism, personal threat plaintiff's antipathy as was manner."); perceived the She standards, discriminatory for terminating an employee include friendship, worker. being irrelevant characteristics, to but his a not superior a to a hapless subordinate . . . or even an invidious factor but not one outlawed by the statute under which the plaintiff is suing; reason" (emphasis added)). ... or there might be no To the extent that Plaintiff argues that Mr. Edouard's complaints regarding her job performance even his basis because beliefs in as reality, Plaintiff to the these has extent of her job duties) arguments put are forth evidence no similarly - as have (or no unavailing opposed to conjecture - that he and/or Defendant did not honestly believe Plaintiff's performance was deficient (or that her job duties extended to those areas alleged to be deficient). 610 F.3d at 1266 ("The inquiry 24 into pretext See Alvarez, centers on the employer's beliefs, about it, maker's not the employee's beliefs and, not on reality as head. exists outside of The question is not whether employee's] fault or she whether it that did it assignments were not delegate to be blunt excessively, the decision really was [the completed on time, or whether aggressive and rude to her colleagues and superiors, she was or whether she actually lost an important document or truly did fall asleep at her desk. The dissatisfied reasons, used with even those if question her for is these complaints about against characteristic]." [the her 1363 (11th Cir. violated conduct."); 1077, 1081 1999) mistaken a work see so, employers were nondiscriminatory or instead merely employee] of as cover her for [protected (internal quotations and citations omitted)); Fleming Supermarkets of the her other because Damon v. under or mistakenly or unfairly discriminating n.3 whether but rule also (11th Cir. ("An Florida, employer who honest is 1990) impression not Earley v. Inc., liable Champion 196 fires that for Int'1 F.3d 1354, an employee the employee discriminatory Corp., 907 ("To survive summary judgment, F.2d the plaintiff must then present concrete evidence in the form of specific facts which show that the defendant's proffered reason is mere pretext. will not suffice." Mere conclusory allegations (citations omitted)). 25 and assertions Plaintiff's practice of allegations discriminating particularly those who that Defendant against required "had female medical a pattern and employees leave accommodations" when compared to similarly-situated male employees are similarly unavailing. Plaintiff pattern and practice asserts of out on medical leave," that terminating Defendant employees this conclusion, other than herself, medical leave for while a they were by having "terminated no less than seven women while they were on medical leave."12 In support of "established (Doc. 52, at 28, 3 0.) Plaintiff identifies six women, who were allegedly "fired in connection with an injury," namely Marisol Screen, Kenyatta 12 To the extent that Plaintiff is attempting to use the termination of these six other has not individuals controlled as for statistical external evidence factors or of discrimination, applied rigorous Plaintiff statistical analysis to these anecdotal figures that would indicate their reliability. See Mitchell v. City of LaFayette, 504 F. App'x 867, 870 (11th Cir. 2013) (citations omitted) (wAbsent any analytical foundation, statistical evidence is virtually meaningless, and thus, cannot have any probative value."); see, e.g. , Howard v. BP Oil Co., 32 F.3d 520, 524 (11th Cir. 1994) (that no black employees were present in predominately white area is only relevant to discrimination analysis if plaintiff presents evidence as to how many black applicants applied and were rejected along with evidence of the success rate of equally qualified white applicants, as u[a]necdotal information is no substitute for meaningful statistical analysis"); Hinson v. Clinch County, Georgia Bd. of Educ., 231 F.3d 821, 827-28 (11th Cir. 2000) (that plaintiff was first female principal in county was not evidence of gender discrimination absent evidence of how many other women applied and what their qualifications were or of the track record of unremoved males); Evans v. McClain of Georgia, Inc., 131 F.3d 957, 962 (11th Cir. 1997) (employee's anecdotal evidence that, despite employing 650 employees in eight plants, employer had only had three black supervisory employees, was not evidence of discriminatory motive with respect to employee's claims of failure to promote absent analytical foundation). Here, Plaintiff has not provided any information alone on the information total number concerning of the individuals overall employed by demographics Defendant, of let individuals terminated by Defendant while on FMLA leave or other relevant statistics, during the relevant time period. Accordingly, the Court finds that Plaintiff's figures are unavailing to the instant discrimination analysis and do not show that Defendant's proffered reasons for her termination pretext for discrimination. See Mitchell, 504 F. App'x at 870. 26 are Herndon, Audrey Williams, Christa Fulkerson, and Leslie Onusic.13 (Doc. of Christa Fulkerson, Doc. President, Declaration of 4; Doc. 46-1; 52, at 19, Marvenia President, 28; see also Declaration 42-2; Amended Declaration of Marvenia Amended Declaration of Marisol Kenyatta Herndon, Screen, Doc. 46-2.) reach the conclusion that these other individuals were connection with medical leave for an injury" were women who took FMLA leave), (doc. Doc. Yet to "fired in because they (i.e., 52, 42- at 19 (emphasis added) ) , and thus to draw an inference of discriminatory intent from Plaintiff's own termination based require unwarranted speculation.14 probative evidence on this evidence, would Plaintiff has produced no demonstrating that a discriminatory-based animus actually factored into Defendant's decision to terminate Plaintiff or these other individuals, such as remarks or statements indicative of an impermissible discriminatory nature15 13 The Court Defendant Screen (S.D. AJ v. Ga. notes for that Ms. Screen alleged violations Services filed Feb. Joint 25, of has the Venture 2016). I, her own FMLA, LLP, Misses pending ADA, and Case Herndon, No. lawsuit Title VII, against namely 1:16-CV-022-JRH-BKE Williams, Fulkerson, and President also brought their own lawsuit against Defendant for alleged violations of the FMLA, namely Herndon et al. v. AJ" Services Joint Venture J, LLP, Case No. 1:16-CV-001-JRH-BKE have stipulated to (S.D. the dismissal of Ga. dismissed Federal Rule of Civil Procedure 41(a) (1) (A) . Services Joint Venture I, LLP, Docs. 37, 38.) 14 In effect, Plaintiff is arguing Nov. 29, 2016), but such claims with prejudice pursuant to that, (See because Herndon these et other al. women v. AJ were terminated while on (or shortly after returning from) FMLA leave, these women must have been discriminated against, and conversely, because she was terminated while on FMLA leave, she too must have been the victim of discrimination. 15 Plaintiff takes issue with Mr. Edouard's alleged "conniving females" and Mr. Newton's suggestion in terminating the phrase 2013 "that [Plaintiff] may xdo something to stop the rumor mill,'" alleging that these statements "make apparent." (See Doc. [Defendant's] use of August management's attitude towards women 52 at 19; see also Edouard Dep. at 267:3-268:4 & Ex. P27 or the existence of any harbored bias against those who exercise their rights under the FMLA.16 not sufficient to create a Such conclusory allegations are genuine issue otherwise sustain Plaintiff's burden. Mos ley, 694 F.3d 1294, 1301 (11th of material fact or See Kernel Records Oy v. Cir. 2012) ("Although all justifiable inferences are to be drawn in favor of the nonmoving 17 (email from Mr. Edouard to Mr. Newton stating " [t] o make a long story short, there goes the conniving that we had both talked about" in reference to Plaintiff's alleged statements that tasks being assigned to her were not part of her job description); from Mr. Newton to Mr. Newton Dep. Edouard where, at 62:13-63:12 in response to Mr. & Ex. P-13 (email Edouard's statement that he was " [n] ot going to get rid of [Plaintiff] just yet [because he is] [t]rying to give her the opportunity to improve", Mr. Newton stated "[m]ight stop some of the rumors if she was gone . . . .").) Yet in reviewing the entirety of the related lines of questioning in Mr. Edouard's and Mr. Newton's respective depositions, it is clear that these comments are not the silver bullet that Plaintiff hopes them to be. (See Edouard Dep. at 265:12274:24; Newton Dep. at 51:2-66:17.) Indeed, Mr. Edouard stated that the only person to whom he had ever referred to as "conniving" was Plaintiff. (Edouard Dep. at 272:4-273:2.) Mr. Edouard also testified that he had never actually used the phrase "conniving female" when speaking to Mr. Newton about Plaintiff, and a plain reading of Mr. Edouard's testimony and the related email wherein he refers to Plaintiff's conduct as "conniving" makes clear that he was referring to Plaintiff's alleged efforts to undermine his authority rather than a derogatory comment against women generally. (See Edouard Dep. at 274:3-24.) As to Mr. Newton's comments, they are irrelevant given that Plaintiff admits it was Mr. Edouard - not Mr. Newton - who decided to terminate Plaintiff's employment approximately eight months after these comments were made. (PSMF %% 63, 87.) Moreover, Plaintiff has put forth no evidence that would support an inference that referring to an individual as "conniving" or as being the source of a "rumor mill" has a discriminatory connotation or otherwise refers to Plaintiff's gender, disability, and/or her exercise of her rights under the FMLA. Accordingly, the Court finds that these comments do not create a genuine issue of material fact as to whether Defendant's proffered reasons for Plaintiff's termination are pretextual. See Bryant, 382 F. App'x at 917. 16 Plaintiff alleges that Mr. Edouard has previously been arrested for acts of domestic violence on three occasions and that such information was known to Defendant at the time it hired Mr. Edouard. (See Newton Dep. at 126:11128:23.) While these acts of violence, if true, are reprehensible, the Court finds that whether the they are "merely colorable" termination of and "not significantly probative" Plaintiff was for a discriminatory purpose. of See Bryant, 382 F. App'x at 917. Similarly, the Court finds that Ms. Onusic's testimony that on at least three to five occasions she witnessed Mr. Edouard become "so enraged that he literally would have to walk out of the office" when issuing reprimands to female employees, (Onusic Dep. at 25:1-29:8), is not significantly probative of whether Plaintiff's termination was motivated by an improper animus. 28 party, inferences Evidence that probative of based is upon merely speculation colorable, or a disputed fact cannot are is not would "convincing mosaic allow a reasonable discrimination by Parcel Serv., (citing Smith (11th Cir. v. jury to See 567 F. significantly Nor has Plaintiff circumstantial decisionmaker." the Inc., App'x Lockheed-Martin 749, evidence infer (11th F.3d to be gleaned Plaintiff's from charged Plaintiff; and See 1091 Cir. (11th relevant the Mr. discriminatory animus Edouard's a allegedly 1321, 1328 more as a plaintiff were 2004) accused to decision by the omitted)); Felder App'x 17, 20 (11th Cir. courts employer." v. 2012) and held roles those of misconduct Inc., as 376 the similarly comparator must prevent citations be to similar plaintiff comparator must The of (a) similar B/E Aerospace, ("The favorable Plaintiff has failed to responsibilities Wilson v. respects. reasonable 2014) that assertions with (b) Plaintiff. identifies Cir. 644 show that these favorably-treated male employees: were United Corp., treatment of Defendant's male employees, or intentional Washington v. 752 that 2011)). As can of reasonable. satisfy a party's burden." (internal quotations and citations omitted)). presented a not F.3d 1079, employee situated in be nearly identical from second-guessing (internal Bradford Health quotations Servs., 493 she all to a and F. (plaintiff and alleged comparator 29 "were not similarly experiences, (citing credentials, Holifield 1997))); situated" v. Washington, Reno, 567 "they duties, job where and 115 F. had qualifications" F.3d App'x different 1555, 1562 at 751-52 (11th ("To Cir. establish a comparator in the disciplinary context, the quantity and quality of nearly a comparator's plaintiff's 1364, misconduct misconduct." 1368-69 must (citing (11th Cir. 1999))). be Maniccia 1562 (11th Cir. 1997) v. where no to 171 the F.3d Plaintiff cannot See Holifield, 115 F.3d ("If a plaintiff fails to show the existence of a similarly situated employee, appropriate Brown, Accordingly, avoid summary judgment on this ground. 1555, identical other evidence summary judgment is of discrimination is present."). Accordingly, sufficient because evidence that Plaintiff would allow a has failed reasonable to present factfinder to conclude that the reasons given by Defendant for the termination of Plaintiff's employment were pretextual, Plaintiff's FMLA retaliation claim fails. B. In Defendant of the Count II of her ADA Claims complaint, Plaintiff "discriminated against Plaintiff [ADA] " accommodations condition." by and (Compl. "failing by to provide retaliating UK 11-12.) 30 for her against alleges [sic] with her The ADA prohibits that violation reasonable medical employers from discriminating against "a qualified individual on the basis of disability hiring, in regard advancement, compensation, privileges job of or job application discharge training, and of other employment."17 Discrimination under make to employees, terms, 42 the ADA includes procedures, the employee conditions, U.S.C. § and 12112(a). an employer's failure to "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee . . . . "18 42 U.S.C. § retaliate 12112(b)(5)(A). against an Further, employee unlawful by the ADA." 901, 905 (11th 12203(a) opposing such unlawful by 2012) individual this testified, employer any Branscomb v. chapter opposed or assisted, not practice Sec'y of Navy, because 4 61 F. omitted); discriminate has may employment (citations ("No person shall because charge, Cir. for "[a]n against any act such 42 any or made App'x U.S.C. § individual practice individual made made a or participated in any manner in an investigation, proceeding, or hearing under this chapter."). 17 "The term 'qualified individual' means an individual who, reasonable employment 12111(8). with or without accommodation, can perform the essential functions of the position that such individual holds or desires." 42 U.S.C. § "The term 'disability' means, with respect to an individual-- (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (C) being regarded as having such (B) a record of an impairment . such an impairment; or . . ." 42 U.S.C. § 12102 (1) . is wpkg term 'reasonable accommodation' may include . . .job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications provision of of examinations, qualified readers training or materials interpreters, accommodations for individuals with disabilities." 31 or and 42 U.S.C. policies, other the similar § 12111(9) (B). In the absence retaliation McDonnell in analyze LLC, ADA direct violation Douglas Dolgencorp, of F. 1365 Mut. Ins. such Title of and (3) 1193 See the to Title see 1336 claims the [i.e., an 2016) VII same the ("We employment v. 1999) 207 F.3d Nationwide (nWe review rubric used McDonnell To establish a prima facie employee must show: (1) discriminated against based upon her Cleveland v. Home Shopping Network, (11th Cir. 2004) Inc., (citations omitted). 369 F.3d To establish a that she engaged in an activity protected by the ADA; protected an adverse activity employment action. Garrett Univ. 1306, v. 1315-16 a that she was otherwise qualified to perform the that she was suffered for Douglas prima facie case of ADA retaliation, an employee must show: she v. Douglas Inc., Farley the Thomas McDonnell (11th Cir. under claims also and/or utilize (11th Cir. under discrimination, (2) disability. 1189, 950 (citations omitted)). ADA courts framework. 948, 2000))); retaliation disability; job; ADA, (citing Earl v. Mervyns, retaliation] VII discrimination claims Co. , 197 F.3d 1322, framework]." case Cir. of applied analysis (11th [ADA the App'x discrimination discrimination claims." 1361, of burden-shifting 645 burden-shifting proof was employment causally Branscomb, of Ala, (11th Cir. at action; connected 461 F. Birmingham 2007)). 32 and Under to App'x Bd. (3) of either (2) that the at that the adverse 905 Tr., (1) (citing 507 theory, F.3d once a prima facie burden of case has been articulating a established, legitimate, demonstrate to be discrimination/retaliation. (citations omitted); a pretext 461 has the reason which the employee must designed Cleveland, Branscomb, employer nondiscriminatory for the challenged employment decision, then the 369 F. to at F.3d App'x at 905 mask 1193 (citations omitted). Here, even assuming her administrative arguendo that remedies19 and has Plaintiff has presented a claim of ADA discrimination/retaliation, exhausted prima facie Defendant has proffered unrebutted nondiscriminatory reasons for terminating Plaintiff's employment. See Section III.A.2, supra. As discussed above, 19 Defendant argues that Plaintiff is barred from bringing an ADA retaliation claim because "it is beyond the scope of her EEOC charge." (Doc. 31-2, at 21 n.18.) Specifically, Defendant argues that Plaintiff only marked the boxes on her Charge for discrimination based on her "sex" and her "disability," but did not mark the box for "retaliation" and the body of her Charge does not contain any reference to retaliation for Plaintiff having engaged in a protected activity. (Id.) Viewing the evidence and factual inferences in the light most favorable to Plaintiff, however, Plaintiff has alleged that she submitted a timely and sufficient charge to the EEOC alleging sex and disability discrimination as well as retaliation in violation of the ADA with regard to her termination. The Court is hesitant to dismiss Plaintiff's ADA retaliation claim for failure to exhaust administrative remedies given that it appears reasonable in this case for Plaintiff's claim of ADA retaliation to be considered to be "like or related to, or [to grow] out of" the allegations of sex and disability discrimination contained in her Charge and intake questionnaire. See Pizzini v. Sec'y for Dep't of Homeland Sec, 495 F. App'x 991, 994 n.3 (11th Cir. 2012); see also Sanchez v. Standard Brands, Inc. , 431 F.2d 455, 460-61, 465 ("The scope of an EEOC complaint should not be strictly interpreted" as courts are "extremely reluctant to allow procedural technicalities to bar claims brought under Title VII.") quotations and citations omitted); 355 F.3d 1277 (11th Cir. Gregory v. 2004) (internal Georgia Dep't of Human Res., (employee's retaliation claim not administratively barred by her failure to only mark "race" and "sex" boxes on EEOC charge where employee's retaliation claim was "inextricably intertwined with her complaints of race and sex discrimination" and any subsequent EEOC investigation would have "reasonably uncovered any evidence of retaliation."). Accordingly, the Court will consider her ADA retaliation claim on i t s merits. 33 all of Plaintiff's thereof under arguments her FMLA of pretext retaliation and claim facts in have support been insufficient to create a genuine issue of material fact, found and the Court can find no reason why these same arguments would have any further success Plaintiff has under her offered no ADA-related additional claims. facts or Moreover, distinguishing arguments of pretext in support of her ADA-related claims. Accordingly, because evidence sufficient conclude that to the Plaintiff permit reasons a issue unlawful of intent, material fact failed reasonable proffered termination were mere pretext or, genuine has by to factfinder Defendant more importantly, concerning her ADA discrimination present for her to create a Defendant's and to alleged retaliation claims cannot survive summary judgment. C, In Count Defendant of [Title because III of Title VII her complaint, "discriminated against VII]" Defendant because she did Plaintiff Plaintiff want not Claims was for alleges [sic] that violation "constructively continue to accommodations for her disability." discharged reasonable making (Compl. ff 14, 18.) While not specifically pled by Plaintiff in her complaint, it is clear from claim the surrounding relies on the circumstances theory that that Mr. terminate her employment was based on 34 Plaintiff's Edouard's Title decision VII to her gender (i.e., because she is female) . Miscriminat[ing] compensation, because of such 2000e-2(m) sex, or against terms, national origin." § Title any individual's 42 U.S.C. prohibits individual conditions, (employment national VII or race, employers with privileges color, of to his employment, religion, sex, or § 2000e-2(a) (1) ; see also 42 U.S.C. actions origin was a where race, motivating color, factor even though other factors also motivated the to the ADA, respect from are religion, unlawful, action). Similar Title VII also prohibits employers from retaliating "against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by testified, [Title VII] , assisted, or investigation, U.S.C. § or participated proceeding, 2000e-3(a). because or he has in any hearing under Notably, Plaintiff made a charge, manner in an [Title VII]." has only 42 alleged a discrimination claim - as opposed to a retaliation claim - under Title VII. The (See Compl. UK 14-19.) proper discrimination framework claims based for on analyzing circumstantial McDonnell Douglas burden-shifting framework.20 single-motive evidence is the Flowers, 803 F.3d 20 Discrimination claims relating to race, color, religion, sex, or national origin brought under Title VII and Section 1983 may be considered under either a "mixed-motive" or "single-motive" theory. Quigg v. Thomas Cty. Sch. Dist. , 814 F.3d 1227, 1235 (11th Cir. 2016). A discrimination claim may be successful under the mixed-motive theory by showing that unlawful bias was a motivating factor for an adverse employment action, even though other factors also motivated the action. Id. (citations omitted). require a showing that bias was the "true reason" 35 Single-motive claims for the adverse action. at 1335. To establish a prima facie case of sex discrimination, Plaintiff must class; an (2) show that: (1) she is a member she was qualified for the position; adverse employment action; and (4) she of a protected (3) was she suffered replaced by a person outside her protected class or was treated less favorably than a similarly-situated class. See Maynard v. Florida Dep't 1281, and 1289 ADA of Bd. Educ. (11th Cir. individual of Regents of Div. ex rel. 2003) . Univ. Similar discrimination/retaliation established her prima articulating challenged a facie case, legitimate, employment outside of Florida, her claims, FMLA once Defendant which 342 the has burden of reason Plaintiff F.3d retaliation Plaintiff has nondiscriminatory decision, protected of Universities of S. to her for must the then Id. (citations omitted). Direct or circumstantial evidence may be utilized to establish discrimination under either theory. Id. While the McDonnell Douglas framework is proper for examining single-motive discrimination claims based on circumstantial evidence, mixed-motive discrimination claims based on circumstantial evidence should be analyzed using the framework set forth in White v. F.3d at 533 F.3d 381 (6th Cir. 2008) . Quigg, 814 v. Baxter Healthcare Corp. framework, an Baxter Healthcare Corp., 1232. Under the White employee asserting a mixed-motive discrimination claim "need only produce evidence sufficient to convince a [reasonable] jury that: (1) the [employer] took an adverse employment action against the [employee]; and (2) a protected characteristic was a motivating factor for the [employer's] adverse employment action." Id. (citing Baxter Healthcare Corp., 533 F.3d at 400). Like the single-motive analysis under the McDonnell Douglas framework, the employee "will always survive summary judgment if he presents circumstantial evidence that creates a triable issue concerning the employer's discriminatory intent." Id. at 1240 (quoting Smith, 644 F.3d at 1328). To date, Plaintiff has not explicitly asserted that Defendant acted with mixedmotives when it terminated her employment, and thus it would not be improper to only consider her gender discrimination claims under a single-motive theory. See E.E.O. C. v. TBC Corp. , 532 F. App'x 901, 902-903 (11th Cir. 2013) (to pursue a mixed-motive theory of discrimination, the plaintiff must argue that the case involved mixed-motives at some point in the proceedings) . Regardless of which discrimination claims theory fail Plaintiff due to her pursues, failure to however, create Plaintiff's a genuine dispute that she was terminated, even in part, because of her gender. 36 sex factual demonstrate to be pretextual. Flowers, 803 F.3d at elements of the McDonnell necessarily See 1336. sufficient Burdine, Again, however, Douglas to 450 at 253; establishing framework survive U.S. the is not judgment, summary alone as the critical decision that must be made is whether the employee has "created a triable discriminatory Smith, intent." 644 F.3d 1321, Here, (11th Cir. ADA claims, has presented employment. all of Plaintiff's F.3d at employer's 1336 (citing 2011)). even assuming arguendo that facie has reasons See Sections the prima a Defendant nondiscriminatory 803 1328 her discrimination, concerning Flowers, like Plaintiff above, issue proffered unrebutted terminating Plaintiff's for III.A.2, of supra. of As pretext III.B, arguments claim and sex discussed facts in support thereof under her FMLA retaliation claim have been found insufficient like her ADA to create a genuine issue discrimination/retaliation of material claims, the fact, and Court can find no reason that these arguments would fare any better under the banner of Plaintiff has a Title VII offered no sex discrimination claim. additional facts or Moreover, distinguishing arguments of pretext in support of her sex discrimination claim. Indeed, Plaintiff has gender-based animus to terminate her produced no evidence demonstrating actually factored into Defendant's employment, such 37 as remarks or that decision statements indicative of existence of an impermissible discriminatory nature any harbored bias against women. While or the Plaintiff makes conclusory allegations regarding alleged gender bias held by Mr. Edouard evidence these used and/or to claims Mr. support even Newton, these on the conclusions their face, allegations have no probative value. at 917. Therefore, sufficient to Plaintiff permit a relevant has does and failed reasonable not thus See Bryant, to factfinder admissible bear out Plaintiff's 382 F. App'x present evidence to conclude that the reasons proffered by Defendant for her termination were mere pretext or, material more fact Accordingly, importantly, concerning to create Defendant's a genuine alleged unlawful issue of intent. her sex discrimination claim cannot survive summary judgment. IV, Even assuming arguendo CONCLUSION that Plaintiff has exhausted her administrative remedies and has presented a prima facie case of discrimination/retaliation where required, Defendant has proffered unrebutted nondiscriminatory reasons for terminating her employment. testimony ethic that and Edouard, It is clear from her filings and deposition Plaintiff primarily management-style in addition to his of takes her issue former with the work supervisor, Mr. allegedly false perception of her 38 job performance. Mr. Edouard Yet did not Plaintiff honestly provided believe his performance (even disagreements with Defendant's business to the has Court's failed decisions. such, As Plaintiff's Defendant in favor her Plaintiff opposed averments Defendant's entitled to her - to that employment summary judgment claims. is GRANTED. of is as that irrelevant however, - of and judgment are evidence into evidence incorrect), irrelevant factored For these reasons, 31) or no perceptions importantly, probative conjecture, animus (doc. More provide discriminatory on all of objectively analysis. to speculation, if has Defendant Defendant's Motion for Summary Judgment The on Clerk all of is directed to Plaintiff's enter JUDGMENT claims, TERMINATE all other pending motions, if any, and CLOSE this case. ORDER ENTERED at Augusta, March, Georgia, this o2^_T daY of 2017. 3AL HALL UNITES) STATES DISTRICT JUDGE !ERN DISTRICT OF GEORGIA 39
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