Rhodes v. Arc of Madison County, Inc.
Rhodes v. Arc of Madison County, Inc.
Opinion of the Court
MEMORANDUM OPINION
Plaintiff, Sheba Rhodes, asserts claims against defendant, The Arc of Madison County, Inc., for wrongful termination in violation of the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (“FMLA”), and for negligent hiring, training, supervision, and retention in violation of state law. This action is before the court on three motions filed by defendant: i.e., a motion for summary judgment; a motion to strike portions of plaintiffs response in opposition to defendant’s motion for summary judgment; and a motion to strike portions of the affidavit of Constance Jones.
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 indicates that summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (alteration supplied).
In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment.
[However,] [t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the non-moving party for a reasonable [factfinder] to return a verdict in its favor.
Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (internal citations omitted) (alterations and emphasis supplied).
II. SUMMARY OF FACTS
A. Plaintiffs Employment as an Instructor at The Arc
Plaintiff, Sheba Rhodes, was employed by defendant, The Arc of Madison County, Inc. (“The Arc”), as an instructor in a day program for adults with intellectual disabilities and developmental delays from July 12, 2006 to August 12, 2010.
During her two-year term at Volunteers of America, plaintiff was supervised by Program Director Kertrina Sharperson, who eventually left that organization and became Program Coordinator for defendant.
Regardless of Sharperson’s reasons for leaving Volunteers of America, when she
While working as an instructor in defendant’s day program, plaintiff’s regular duties included feeding and changing the soiled undergarments of clients with intellectual disabilities and developmental delays, as well as “teaching them everyday functions of life.”
During her time as an instructor, plaintiff was supervised by QMRPs Lane and Finley and Program Coordinator Sharper-son: Lane and Finley reported to Sharperson, who, in turn, reported to Executive Director Klingel.
Plaintiff and Program Coordinator Sharperson had a falling out in 2006 or 2007.
Eventually, plaintiff ended her intimate relationship with Yolanda Watkins because she knew that Watkins also was intimately involved with Program Coordinator Sharperson, and because she was hesitant to jeopardize her employment with defendant.
As a result of their conflict over Watkins, plaintiff alleges that Program Coordinator Sharperson “harassed [her] and tried to get [her] fired.”
Program Coordinator Sharperson denied that she harassed plaintiff, that she believed that plaintiff should be terminated, or that she urged Executive Director Klingel to do so.
B. Plaintiffs Request for FMLA Leave and Eventual Termination
In 2008, and again in 2009, well before the events giving rise to this action, plaintiff took leaves of absence from her employment with defendant under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (“FMLA”), “and no one gave [her a] hard time about [it].”
Plaintiff told Program Coordinator Kertrina Sharperson that she was planning to request FMLA leave once again in June of 2010, this time for gallbladder and hernia repair surgery.
During her deposition, plaintiff testified that, around the time she was gathering her paperwork to request FMLA leave, Program Coordinator Sharperson told plaintiff and plaintiffs supervisor, QMRP Ann Finley, that she did not want plaintiff to have the surgeries because “it was too many people trying to take FMLA [leave]. And [plaintiff had] already taken FMLA [leave] twice and [she] was taking it again. [Sharperson] was tired of folks asking for FMLA [leave].”
On August 5, 2010, less than two weeks before her scheduled FMLA leave, plain
Following an investigation, it has been determined that you failed to implement the approved behavior program for an individual. Your failure to comply with established behavior strategy steps was neglectful and had a detrimental effect on the individual. Your employment is terminated as of today.36
C. The Job Duties of an Instructor in the Day Program
In order to understand the alleged reasons for plaintiffs termination, one must understand the job duties of an instructor in the day program.
1. The day program
Defendant is a non-profit corporation that serves individuals of all ages who have intellectual disabilities and developmental delays.
In contrast to the mere custodial care that is offered at nursing homes and other institutions, the day program provides “active treatment,” which involves continuously assessing the client, providing, monitoring, and modifying the client’s training based on progress.
Many of the clients in the day program have severe or profound mental retardation, and some clients are prone to various negative behavior, including aggression.
2. The Behavior Support Plans (“BSPs”)
The State of Alabama requires that clients taking at least two forms of psychotropic medication also have Behavior Support Plans (“BSPs”) which are developed by a team of mental health professionals to decrease the clients’ negative behavior and increase their positive behavior using redirection and positive reinforcement.
If the State of Alabama Department of Mental Health determines that defendant failed to enforce a BSP, defendant could lose certifications and funding
Instructors are provided with BSPs for any clients with whom they interact in their classrooms.
3. The “Individual Abuse, Neglect, and Mistreatment” policy
Defendant’s written policy on “Individual Abuse, Neglect, and Mistreatment” defines the term “neglect” as:
the failure to carry out a duty through reckless conduct, carelessness, inattention, or disregard of duty whereby the individual is exposed to harm or risk of harm, and includes but is not limited to: failing to appropriately supervise individuals or otherwise leaving individuals unattended, including sleeping, failing to ensure that individual’s [sic] basic needs for safety, nutrition, medical care and personal attention are met, failing to provide treatment in accordance with the treatment plan or failing to develop a treatment plan, and utilizing treatment techniques, e.g., restraints, seclusion, etc., in violation of Arc policy and procedures, whether or not injury results. Incidents resulting in injury where both the perpetrator and the victim receive services by the Arc are investigated to determine if the occurrence of such incident may have been the result of neglect.53
Defendant’s “Individual Abuse, Neglect, and Mistreatment” policy requires staff members to follow a BSP until it is changed by the individuals charged with its administration, regardless of whether
D. Plaintiffs Job Performance
1. “Christina’s” Behavior Support Plan
The given name of one of plaintiffs students was “Christina.”
Christina’s BSP indicated that her aggressive and self-injurious behavior was motivated by a desire for escape, attention, and sensory stimulation.
If Christina is engaging in Physical Aggression that is highly disruptive and she must be removed from the area, do so with NO TALKING. Do not tell her to calm down at this time/Do not ask her at this time if she needs anything/Simply escort her out. Any talking with her about her behavior at this point will serve to reinforce it (attention function). If physical aggression continues outside of original area, the staff may place Christina in a crisis prevention intervention, approved by Anita’s Home physical intervention, until she appears to be calm, for no longer than five minutes. This may be repeated two times before contacting the QMRP for further instructions.
If Christina engages in Self Injurious Behavior, she must be removed from the area without talking to him [sic]. Staff can try to watch an Alvin and the Chipmunks movie and video because this can calm her down. Staff needs to hold Christina’s arms gently to prevent her from further hitting herself or causing injuries. Staff will attempt to figure out what it is that is causing the behavior (ie., identify item that is causing irritation, identify if Christina is in pain, identify ' if Christina is hungry or thirsty, identify what task that Christina does not want to do, and give her a break from it). If something is irritating Christina in her environment, remove the item. If Christina is hungry or*1212 thirsty, give her something to eat or drink. If Christina seems to be in pain, report to the nurse and house manager. If Christina needs a break from a task then give her a break and try again after she has calmed down. If an injury has occurred, staff needs to complete an accident and injury report on the injury.62
Christina’s BSP also contained instructions for reinforcing appropriate behavior. It listed the following “reinforcer” activities, i.e., various activities designed to encourage positive behavior: “Alvin and the Chipmunks, Listening [sic] to music, coloring, dancing, verbal praise, playing with her baby doll, 1:1 attention.”
If Christina ceases target behavior at any time, then staff should provide him [sic] with praise/recognition for appropriate behavior. When she calms down, give her praise and encourage her to return to previous activity. If he [sic] returns to previous activity, praise her for returning. If she begins engaging in the required activity, then give a lot of praise/recognition.64
Finally, Christina’s BSP stated that it was “to be implemented at all times and in all locations unless specified otherwise,” but “only ... by staff that has been trained on the specific procedures of this program.”
I have been [sic] in-service on Christina [sic] In-service for the individual listed below. I have had the opportunity to ask questions regarding the in-service and to have them answered. I understand that I am responsible for seeking direction from the QMRP if I do not understand any or all of this in-service and any or all of the responsibilities I have regarding instructing the client and providing care for the client. I agree to abide by the team’s recommendations and assist the individuals in carrying out these goals and objectives. I also agree to report and document as required by the Habilitation team, my supervisor and/or the R-QMRP.66
Although plaintiff received in-service training on handling aggressive clients, and annual training on defendant’s “Individual Abuse, Neglect, and Mistreatment” policy,
By August of 2010, plaintiff testified that she had worked with Christina for eight to ten months.
Plaintiff found Christina’s behavior difficult to control. She testified that, “when [Christina] was up, when she was not sleeping, she was a terror. She would get up hitting the other clients [and] fighting the staff.”
On one hand, plaintiff is neither an expert on BSPs, nor responsible for designing them.
In plaintiffs opinion, Christina’s BSP “was not the right plan for her. It didn’t work.”
Christina’s BSP listed “coloring, dancing ... [and] 1:1 attention” as “reinforcers” for positive behavior.
Further, Christina’s BSP did not expressly allow instructors to regulate Christina’s behavior by instructing her to place her head on the desk and/or permitting her to fall asleep while class was in session. However, on occasions when Christina became aggressive, plaintiff admitted that she asked Christina to put her head on the desk “to calm her down.”
Plaintiff denied issuing an instruction for Christina to go to sleep.
However, plaintiff admitted that she “allowed [Christina] to stay asleep when she’s having [an episode of negative or , self-injurious] behavior.”
Likewise, plaintiff admitted that she told Victoria Evans, another aide, ,to allow Christina to put her head on the desk and not attempt to wake her up when she was exhibiting such behavior.
[Plaintiff] and Christina were usually in the classroom before me and Christina normally had her head down on a table on top of a paper towel when I arrived. There were multiple occasions when Christina put her head up (other than when necessary to eat) and I heard [plaintiff] tell her to put her head back down on the table. [Plaintiff] told me more than one time to leave Christina alone in order to avoid negative behavior. Although Christina would sometimes fall asleep, she did not sleep all day and I often saw her awake with her head flat on a table as she was told to do. I knew that the Behavior Support Plan for Christina contained instructions on how to interact with her and that it did not include instructions that she should be told to put her head on a table or that she should be encouraged to sleep.100
Plaintiff testified that she believed her strategy of managing Christina’s behavior by instructing her to put her head on the desk to be consistent with the following instructions from Christina’s BSP: “If something is irritating Christina in her environment, remove the item.... If Christina needs a break from a task then give her a break and try again after she has calmed down.”
In contrast to plaintiffs interpretation of Christina’s BSP, Executive Director Susan Klingel indicated that, much like using physical intervention, the act of instructing a client to place her head on the desk, or to go to sleep is a negative strategy that “ha[s] to go through a team [of mental health professionals] and ... be part of the Behavior Support Plan” before it can be used.
Klingel also testified that “[a]t no point in time in any behavior management plan would somebody tell [a client] to put their head down on the table or go to sleep.”
3. Alleged Knowledge of Plaintiffs Conduct by Defendant’s Employees
Plaintiff offered evidence that several of defendant’s employees often instructed Christina to place her head on the desk, on top of a paper towel, either for purposes of hygiene or in order to address her episodes of aggressive or self-injurious behavior.
Plaintiff testified that Aide Dowdell frequently instructed Christina to put her head on the desk, on top of a paper towel, “because [Christina] slobbered on the table, and they didn’t want the slob on the table.”
personally observed [plaintiffs supervisor,] Ann Finley, a QMRP at the time, and [Program Coordinator] Kertrina Sharperson, place Christina’s head down on the table in the classroom as a way of calming Christina down. In fact, Kertrina Sharperson was the first Arc employee to start the practice of placing a paper towel on the table and having Christina place her head down on the table, as a method of dealing with Christina’s violent behavior. Once [Sharperson] started this approach, she did it almost every day because Christina would act violent almost every day, or she also instructed [plaintiff], myself and others to act in this manner with Christina.112
Executive Director Susan Klingel denied personal awareness that any of defendant’s employees were instructing Christina to put her head on the desk, either with or without a paper towel.
Plaintiff also testified that she repeatedly told Program Coordinator Sharperson and plaintiffs supervisor, QMRP David Lane, that Christina’s medication was causing her to fall asleep in class.
Program Coordinator Sharperson denied frequent visits to plaintiffs classroom, and testified that, on those occasions when she saw “Christina with her head on the desk,” she “instructed staff to get her up, move her around, [and encourage her to] interact with the other individuals.”
In addition, plaintiff testified that she told Program Coordinator Sharperson that Christina did not like one of the aides, Gina Brand.
E. Defendant’s Investigation of Plaintiffs Conduct
1. The complaint by Aide Gina Brand to Program Coordinator Kertrina Sharperson
The parties present two different versions of the events that led to the complaint against plaintiff by Aide Gina Brand to Program Coordinator Kertrina Sharper-son.
Defendant alleges that Program Coordinator Sharperson responded to Aide Brand’s inquiry by stating that plaintiffs methods “were not a correct way of dealing with Christina, because sleep is never encouraged and clients are at the Arc for affirmative interaction, not isolation or rest.”
In contrast, plaintiff alleges that Program Coordinator Sharperson and plaintiffs supervisor, Qualified Mental Retardation Professional Ann Finley, coerced Aide Brand into making a complaint after Christina became violent and struck another client.
As a result of the incident, Program Coordinator Sharperson and QMRP Finley were allegedly called into plaintiffs classroom, Aides Brand and Jones completed reports for inclusion in Christina’s client file, and Brand reported that Christina had physically assaulted her.
Aide Brand then allegedly took her lunch break, but repeatedly returned to plaintiffs classroom to inform plaintiff and Aide Jones that Program Coordinator Sharperson and QMRP Finley were trying to convince her to “snitch” on them by reporting activities in plaintiffs classroom.
Later, Program Coordinator Sharperson allegedly instructed Aide Jones to speak to Medicaid Program Coordinator Roslyn Bridges about Jones’s request for family leave.
Medicaid Program Coordinator Bridges informed Aide Jones that she was accused of abusing two clients, Christina and Jeff. She then obtained Jones’s written statement responding to the allegations, and suspended Jones with pay.
2. The placement of plaintiff on administrative leave
On the day that Aide Gina Brand informed Program Coordinator Kertrina Sharperson about plaintiffs practice of instructing Christina to place her head on the desk while class was in session, defendant suspended plaintiff pending the results of an investigation by Medicaid Program Coordinator Roslyn Bridges,
The incident report showing plaintiffs placement on administrative leave was signed by Program Coordinator Sharper-son.
3. The investigation by Medicaid Program Coordinator Roslyn Bridges
As noted in Section 11(A), supra, Medicaid Program Coordinator Roslyn Bridges ran the day program, and investigated allegations of client abuse, neglect, and mistreatment when assigned to do so by Executive Director Susan Klingel.
As part of her investigation of the allegations by Aide Gina Brand against plaintiff, Medicaid Program Coordinator Bridges took a written statement from Brand, who reported that she “was told [by plaintiff] not to interact with Christina,” and “was informed the less interaction [with Christina,] the better.”
Upon receiving Aide Brand’s report, Medicaid Program Coordinator Bridges preliminarily categorized the conduct under investigation as “mistreatment.”
Additionally, Program Coordinator Kertrina Sharperson assembled a list of employees for Medicaid Program Coordinator Bridges to interview.
Three aides denied witnessing the acts under investigation. Donna Davis, Wilma Emerson, and Daphne Garner each gave a written statement denying that they had heard plaintiff instruct Christina to go to sleep, and denying that they had heard plaintiff tell staff not to interact with Christina.
Another six aides, however, acknowledged that they had heard plaintiff instruct Christina to place her head on the desk, and that they had heard plaintiff tell the staff to allow Christina to sleep and/or not to interact with her. Each of those statements is briefly summarized below.
Ade Freddie Dowdell wrote that, “[w]hen Christina come to school in a bad mood, [plaintiff] would tell her or I should say make her lay her head down and she would eventually go to sleep, or quiet down.”
Ade Victoria Evans wrote that, “[n]ormally, by the time I went to room 12, Christina was already laying her head down. When I would come there and she was up, she was instructed to lay her head down.”
In response to Bridges’s question regarding whether plaintiff had instructed Ade Connie Laster to allow Christina to sleep, Laster answered, “yes if [Christina] is in one of her bad moods.”
Ade Michelle Timmons answered “yes” to a question regarding whether plaintiff had instructed her to allow Christina to sleep, and “yes” to a question regarding whether she had also been instructed not to interact with Christina.
Ade Donna Davis was asked whether plaintiff had instructed her to allow Christina to sleep, and answered, “yes she instructed [Christina] to la[y] her head down.”
Eventually, Medicaid Program Coordinator Bridges incorporated the nine witness statements into her investigative report for the Alabama Department of Mental Health.
4. The decision to terminate plaintiffs employment
After Medicaid Program Coordinator Roslyn Bridges completed her investigation, but before she completed her report, Bridges provided Executive Director Susan Klingel with all the evidence, including the nine witness statements, regarding Aide Gina Brand’s allegations for the purpose of allowing Klingel to make a decision regarding the appropriateness of disciplinary action against plaintiff.
As an explanation for the decision, Executive Director Klingel testified that plaintiff “did not even attempt to follow [Christina’s] behavior [support] program. She went ahead and did what she wanted to do, which was to tell [Christina] to sleep and put her head down.”
Medicaid Program Coordinator Bridges gave plaintiff a termination notice signed by Executive Director Klingel on August 12, 2010, four days before plaintiff was scheduled to begin her FMLA leave (August 16, 2010), and six days before Bridges completed her investigation report (August 18 of the same year).
Medicaid Program Coordinator Bridges denied knowing that plaintiff had either applied for or been approved for FMLA leave until after her termination.
Additionally, plaintiff testified that Program Coordinator Sharperson influenced Executive Director Klingel’s decision to terminate plaintiffs employment.
F. Plaintiffs Surgeries
Despite her termination on August 12, 2010, plaintiff continued to receive health insurance coverage until September 1 of that year.
G. After-Acquired Evidence of Plaintiffs Violations of Defendant’s Policies
1. Plaintiffs failure to disclose her criminal conviction on her employment application
On the date of plaintiffs deposition taken on February 3, 2012, Executive Director Susan Klingel learned that plaintiff had failed to disclose her criminal conviction when applying for employment on June 16, 2006.
In light of the certification, plaintiff admitted that making a false statement on her employment application was grounds for her termination.
Plaintiff designated the testimony regarding her criminal conviction as “disputed” on the grounds that
Defendant should have run a background check as part of the hiring process. (Alabama Dept, of Mental Health Division of Developmental Disabilities Administrative Code, Ch. 580-5-31-,02(5)(a) and 580-5-31-.02(5)(a) 2). Plaintiff admitted to a misdemeanor, not a felony. The judge told her misdemeanors don’t show on her record. (Rhodes Depo., p. 22).200
Because plaintiffs arguments that defendant should have run a background check, and that a judge should have explained the significance of a misdemeanor, are not admissible evidence sufficient to dispute the allegation that she did not disclose her criminal conviction on her employment application, this court will treat plaintiffs conviction as admitted.
2. Plaintiffs failure to report violations of Behavior Support Plans (“BSPs”)
Also on the date of plaintiffs February 3, 2012 deposition, Executive Director Susan Klingel learned that plaintiff had allegedly witnessed Program Coordinator Kertrina Sharperson violate Behavior Support Plans (“BSPs”) “[n]umerous ... times,” and presumably for numerous clients, but did not report those violations in accordance with defendant’s policies.
In light of the policy, plaintiff admitted that failure to report the violation of a
III. MOTION TO STRIKE PORTIONS OF PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Defendant filed a motion requesting three separate forms of relief: to hold that plaintiff has admitted some facts that defendant advanced in support of summary judgment; to strike other facts that plaintiff advanced in opposition to summary judgment; or, in the alternative, to provide guidance on the proper manner for defendant to formulate its response.
A. Motion to Hold Facts Admitted
Defendant first asks this court to hold that plaintiff has admitted defendant’s undisputed facts numbered 68 and 69, which concern Program Coordinator Sharper-son’s response to Aide Gina Brand’s “question” regarding the appropriateness of plaintiffs practices of instructing Christina to place her head on the desk, of allowing her to fall sleep while class was in session, and of discouraging aides from interacting with her one-on-one.
68. [Program Coordinator Kertrina] Sharperson attested that when [Aide] Gina Brand told her [plaintiff] was engaging in a practice of instructing Christina to place her head down and encouraging aides to leave her alone, she responded to Ms. Brand that “this was not a correct way of dealing with Christina, because sleep is never encouraged and clients are at the Arc for affirmative interaction, not isolation or rest. (Sharperson Aff., ¶ 7).
69. [Program Coordinator] Sharperson testified that she immediately “indicated to Ms. Brand that [they] needed to report this matter to [Medicaid Program Coordinator] Roslyn Bridges for a complete investigation pursuant to the Arc’s abuse, neglect and mistreatment policy.” (Id.).207
Plaintiff responded to those statements as follows:
68. Disputed. This statement has not been corroborated by [Aide] Gina Brand.
69. Disputed to the extent this statement has not been corroborated by Gina Brand.208
Defendant argues that “plaintiff disputed the facts but did not provide citation to any materials from the record to support the dispute. (Id. at 8). Accordingly, pursuant to this Court’s Uniform Initial Order, [defendant’s] statements of fact no. 68 and 69 are due to be admitted.”
*1225 Defendant’s alleged facts nos. 68 and 69 contain alleged statements made by [Aide] Gina Brand, which are hearsay, and Plaintiff disputes the statements to that extent. Plaintiff did not dispute [Program Coordinator] Sharperson’s testimony, merely the portion that is hearsay. The cites were inadvertently left off, but are identical to the Defendant’s: Sharperson Aff., ¶ 7.210 [1] Indeed, Program Coordinator
Sharperson’s allegation that Aide Brand “told her [plaintiff] was engaging in a practice of instructing Christina to place her head down and encouraging aides to leave her alone” is hearsay, and does not fall within an exception that would permit its admission.
B. Motion to Strike or, in the Alternative, for Further Court Guidance
Defendant next asks this court to strike plaintiffs additional undisputed facts, with the exception numbers 2, 3, 7, 11, 12, 16 and 34, on the grounds that they “fail to comport with this Court’s requirement that they be set out in separately numbered paragraphs. At the very least, The Arc requires guidance from this Court as to how to formulate responses.”
Although it is true that many of the allegedly undisputed facts that were advanced by both parties are not set out in separately numbered paragraphs, the parties have responded to each others’ briefs,
IV. MOTION TO STRIKE PORTIONS OF THE AFFIDAVIT OF CONSTANCE JONES
Defendant moves to strike the principal part of the. only evidence that plaintiff provides in opposition to summary judgment: ie., a portion of the affidavit of Constance Jones, an aide formerly employed by defendant, and the entire attached exhibit (an electronic mail (“email”) message sent by Jones to Executive Director Susan Klingel and others to tender her resignation and inform them of her rationale for leaving her employment at The Arc).
A. Summary of Former Aide Constance Jones’s E-Mail and Affidavit
As noted in Section 11(E)(1), swpra, Aide Jones resigned her position under acrimonious circumstances: she was suspended on an accusation that she had abused two clients, including Christina, and she believed that she “was being singled out and harassed and well as falsely accused of [those] two incidents.”
Among other things, Jones alleged that Program Coordinator Kertrina Sharperson and Qualified Mental Retardation Professionals David Lane- and Ann Finley falsely accused her of “making a pass” at the husband of Instructor Tangela Gardner in church, and wrote her up for gossiping about the incident.
Additionally, Jones alleged that she was regularly physically assaulted by the clients, that her supervisors would refuse to assist with restraining violent clients, and that QMRP Finley stated that rendering such assistance was not in her job description.
In addition to making a plethora of claims that are not pertinent to this case, the e-mail from Aide Jones addresses one relevant subject: i.e., the events allegedly precipitating the complaint against plaintiff by Aide Brand to Program Coordinator Sharperson. Briefly, the Jones e-mail alleges that Brand was coerced by Sharper-son and QMRP Finley into making the complaint after Christina became violent and struck another client.
The affidavit from Aide Jones restates her claims regarding the events precipitating the complaint against plaintiff by Aide Brand to Program Coordinator Sharper-son: ie., that the complaint was coerced by Sharperson and QMRP Finley.
B. Motion to Strike
Defendant moves to strike the following lengthy paragraph from former Aide Constance Jones’s affidavit:
After the incident [involving Christina’s physical assault on another client, Julia] had been taken care of and documented, [plaintiff] came into the room and asked [Aide Constance Jones] and [Aide] Gina Brand what was going*1227 on. [Constance Jones] told [plaintiff] what happened in front of Gina Brand. [Plaintiff] read the file notes and talked to [Brand and Jones]. [Brand] told [plaintiff], “now I know what you mean about Christina.” The air conditioner was not working. [Jones] asked [plaintiff] if [they] could go to the cafeteria. [Plaintiff] said she would have to ask permission first. [Plaintiff] began explaining to [Brand], Christina’s behavioral problems. [Brand] then told [plaintiff] and [Jones] that she did not like [three of defendant’s clients: i.e.,\ John, Maria, or Christina. [Plaintiff] and [Jones] listened to [Brand’s] complaint. [Plaintiff, Brand, and Jones] moved to the cafeteria. [Brand] went to break, and every time she came back to the room she would tell [plaintiff and Jones] a different story that [QMRP] Ann [Finley] & [Program Coordinator] Kertrina [Sharperson] were trying to get her to snitch on [plaintiff] and [Jones]. [Sharperson and Finley] wanted [Brand] to tell them what goes on in [plaintiffs classroom,] room 12. [Brand’s] story kept changing. [Brand] told [plaintiff and Jones] that [Sharper-son] and [Finley] assured her that [plaintiff] nor [Jones] would be in [plaintiffs classroom] tomorrow. [Plaintiff] told [Brand], “what is there to snitch about? No one has done anything wrong.” [Brand] left the room for her lunch, and this time she came back and told [plaintiff and Jones] that [Sharper-son] and [Finley] were putting her up to saying that something that she did not want to say and that if she had to be a snitch that she would quit her job first. [Plaintiff] began asking [Brand] what was she talking about. [Jones] got up and took [a client,] Julia[,] to [another classroom] to change her undergarments. When [Jones] returned, [plaintiff] told [Jones] that [Brand] said that [Jones] had thrown Christina and [another client,] Jeff[,] down in a chair and Ann Finley was watching [Jones] through the window in [plaintiffs classroom], [Jones] told [Plaintiff] that [she] never threw either client in a chair. [Jones] later was asked by [Sharperson] to go see [Medicaid Program Coordinator] Roslyn [Bridges] about [Jones’s] family leave form, that [Jones] had allegedly put in. [Jones] told [Sharper-son] that [she] did not have a leave form put in. Once [Jones] left the classroom and got to the office, [Sharperson] laughed at [Jones] and told [her] that Roslyn Bridges wanted to speak with [Jones] and [Jones] was asked to have a seat.226
Defendant also moves to strike the e-mail sent by Aide Jones to explain her decision to resign from her position at The Arc.
Defendant argues that the foregoing affidavit paragraph and the entire attached e-mail constitute inadmissible hearsay.
[The employee] was not speaking as an employee on behalf of [the employer] when he resigned from his employment and accused [the employer] of racial discrimination; to the contrary, in a very overt manner, [the employee] was acting not only independently of [the employer] but also as its adversary. Because [the employee’s] out-of-court statement was made in the context of terminating his employment (and placing himself in an adversarial relationship with [the employer] ), the justification for Rule 801(d)(2)(D) does not exist because [the employee] no longer was inhibited by his relationship with the principal from making erroneous or underhanded comments which could harm the principal.
Id. at 622-23 (internal quotations omitted) (alterations supplied).
Aide Jones’s affidavit was notarized on April 16, 2012, i.e., nearly two years after she resigned her employment via e-mail on August 17, 2010.
Plaintiff next argues that Aide Jones’s e-mail constitutes a business record because it “was made by her pursuant to defendant’s complaint policy and was kept in the ordinary course of business by defendant as part of its investigation into her complaints.”
(A) the record was made at or near the time by- — or from information transmitted by — someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
*1229 (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.
Fed.R.Evid. 803(6) (emphasis supplied). “For [the business record] exception to be available, all persons involved in the process must be acting in the regular course of business — otherwise, an essential link in the trustworthiness chain is missing.” Williams v. Asplundh Tree Expert Co., No. 3:05-CV-479-J-33MCR, 2006 WL 2868923, *9 (M.D.Fla. Oct. 6, 2006) (internal quotations and citations omitted) (alteration supplied). Accordingly, plaintiff must show that “[a]ll participants, including the observer or participant furnishing the information to be recorded, were acting routinely, under a duty of accuracy, with employer reliance on the result, or in short, in the regular course of business.” Fed.R.Evid. 803(6), Advisory Committee Note (alteration supplied).
The first sentence of Aide Jones’s e-mail states that Jones “hereby resign[s] from [her] job at The Arc of Madison, for these reasons.”
Plaintiff then argues that Aide Jones’s e-mail and affidavit contain present sense impressions in the form of “statements] by [Aide] Brand, [plaintiff], or others describing or explaining an event or condition, made while or immediately after the declarant perceived it,”
The most significant practical difference between a present sense impression and an excited utterance lies “in the time lapse allowable between event and statement.” Fed.R.Evid. 803(l)-(2), Advisory Committee Note. The exception for present sense impressions requires “substantial contemporaneity of event and statement,” but “recognizes that in many, if not most, instances precise contemporaneity is not possible, and hence a slight lapse is allowable.” Id. (alteration supplied). Under the exception for excited utterances, “the
The Fifth Circuit, in a case involving Rule 803(1) [the present sense impression exception], agreed with the District of Columbia Circuit that a delay of 15 to Í5 minutes in reporting an incident does not qualify reporting the incident ‘immediately’ after it occurred. See United States v. Cain, 587 F.2d 678, 681 (5th Cir. 1979),238 citing Hilyer v. Howat Concrete Co., 578 F.2d 422, 426 n. 7, 188 U.S.App.D.C. 180 (D.C.Cir. 1978) (“an out-of-court statement made at least fifteen minutes after the event it describes is not admissible unless the declarant was still in a state of excitement resulting from the event [which would render the statement admissible under the ‘excited utterance’ exception to the hearsay rule, Fed.R.Evid. 803(2) ]”).
Versata Software, Inc. v. Internet Brands, Inc., No. 2:08-CV-313-WCB, 2012 WL 2595275, *31 (E.D.Tex. July 5, 2012) (first alteration supplied) (second alteration in original) (emphasis supplied) (footnote supplied).
Defendant moves to strike only the portion of Aide Constance Jones’s affidavit which describes the events that allegedly motivated Program Coordinator Kertrina Sharperson and Qualified Mental Retardation Professional Ann Finley to coerce Aide Gina Brand into making the complaint against plaintiff after Christina became violent and struck another client.
Plaintiff then argues that Aide Jones’s e-mail and affidavit contain evidence of then-existing state of mind because they show “intent, motive or plan by [Program Coordinator ] Kertrina Sharperson to get [plaintiff].”
Plaintiff further argues that Aide Jones’s e-mail and affidavit are not hearsay because they “can be considered by the court not to establish the underlying truth of the matters discussed therein, but rather to show discrepancies in the version
Finally, plaintiffs arguments utterly fail to address the fact that Aide Jones’s e-mail and affidavit are replete with statements that contains multiple levels of hearsay: e.g., “[Aide Brand] told [plaintiff and Jones] that [Program Coordinator Sharperson] and [QMRP Finley] assured her that [plaintiff] nor [Jones] would be in [plaintiffs classroom] tomorrow”; and, “When [Jones] returned, [plaintiff] told [Jones] that [Brand] said that [Jones] had thrown Christina and [another client,] Jeff[,] down in a chair and Ann Finley was watching [Jones] through the window in [plaintiffs classroom].”
Y. MOTION FOR SUMMARY JUDGMENT
Defendant moves for summary judgment on plaintiffs claim for wrongful termination in violation of the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (“FMLA”).
*1232 any eligible employee who takes leave under section 2612 of this title for the intended purpose of the leave shall be entitled, on return from such leave—
(A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or
(B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.
29 U.S.C. § 2614(a)(l)(A)-(B). Such entitlements are limited by a subsequent section, providing that an eligible employee is not entitled to “any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.” 29 U.S.C. § 2614(a)(3)(B).
To secure the availability of the foregoing entitlements, Congress declared it “unlawful for any employer to interfere with, restrain, or deny the exercise of[,] or the attempt to exercise, any right provided under this subchapter [of the FMLA].” 29 U.S.C. § 2615(a)(1). In addition, Congress declared it “unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by [the FMLA],” 29 U.S.C. § 2615(a)(2), or because such individual
(1) has filed any charge, or has instituted or caused to be instituted any proceedings, under or related to [the FMLA];
(2) has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under [the FMLA]; or
(3) has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under [the FMLA].
29 U.S.C. § 2615(b); see also 29 C.F.R. § 825.220(c) (“An employer is prohibited from discriminating against employees ... who have used FMLA leave.”).
Consistent with the foregoing statutory provisions, the case law interpreting the FMLA recognizes two types of claims for alleged violations of the Act: “interference claims, in which an employee asserts that his employer denied or otherwise interfered with his substantive rights under the Act ... and retaliation claims, in which an employee asserts that his employer discriminated against him because he engaged in activity protected by the Act....” Strickland v. Water Works and Sewer Board of the City of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001) (emphasis added) (citations and footnote omitted). Accord O’Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1352 (11th Cir. 2000). FMLA interference and retaliation claims have different elements.
To state a claim of intevference with a substantive right, an employee need only demonstrate by a preponderance of the evidence that he was entitled to the benefit denied. O’Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1353-54 (11th Cir. 2000); King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir. 1999). In contrast, to succeed on a retaliation claim, an employee must demonstrate that his employer intentionally discriminated against him in the form of an adverse employment action for having exercised an FMLA right. King, 166 F.3d at 891. In other words, a plaintiff bringing a retaliation claim faces the increased burden of showing that his employer’s actions “were motivated by an impermissible retaliatory or discriminatory animus.” Id.
Strickland, 239 F.3d at 1206-07 (emphasis supplied); see also Earl v. Mervyns, Inc.,
The first count of plaintiffs complaint is entitled “Wrongful Termination in Violation of FMLA,” and alleges that “Defendant’s termination of Plaintiff, Sheba Rhodes, for requesting time off to for her own serious health condition, violates the Family and Medical Leave Act of 1993, 29 U.S.C § 2601 et seq.”
[Termination while on FMLA leave can create both a cognizable ‘interference’ claim and a cognizable ‘retaliation’ claim. Strickland v. Water Works and Sewer Bd., 239 F.3d 1199 (11th Cir. 2001) (recognizing both causes of action for a termination); O’Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349 (11th Cir. 2000) (finding both causes of actions when the plaintiff did not specify which FMLA provision the employee was proceeding under).
Smith v. Boyd Brothers Transportation, No. 2:04-CV1063-MHT (WO), 2006 WL 208696, *5 (M.D.Ala. Jan. 25, 2006). The Smith court rejected a defendant employer’s argument that an employee “did not properly assert an interference claim,” reasoning that:
[the employee’s] interference claim and his retaliation claim arise out of the same factual evidence and, indeed, ... his interference claim is essentially subsumed within his retaliation claim ([the employee’s] retaliation claim differs from his interference claim in that he must prove not only that he was terminated while on FMLA leave (the interference claim) but also that he was terminated while on FMLA leave for the specific purpose of retaliating or discriminating against him (the retaliation claim)).
Smith, 2006 WL 208696, at *5-6 (alterations supplied). In accordance with Strickland, O’Connor, and Smith, this court will consider plaintiffs termination as a basis for both claims. Because the interference analysis “tracks closely the FMLA retaliation analysis,” Franks v. Indian Rivers Mental Health Center, No. 7:08-CV-1035-SLB, 2012 WL 4736444, *53-54 (N.D.Ala. Sept. 30, 2012), this discussion will address both FMLA claims simultaneously.
“As under Title VII, a claim of FMLA retaliation can be made out by direct evidence.” Gross-Jones v. Mercy Medical, 874 F.Supp.2d 1319 (S.D.Ala. 2012) (citing Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1243 (11th Cir. 2010)). Additionally:
Wdien a plaintiff asserts a claim of retaliation under the FMLA, in the absence of direct evidence of the employer’s intent, we apply the same burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.*1234 1817, 36 L.Ed.2d 668 (1973), for evaluating Title VII discrimination claim. See Brungart v. BellSouth Telecomm. Inc., 231 F.3d 791, 798 (11th Cir. 2000). In order to state a claim of retaliation, an employee must allege that: (1) he engaged in a statutorily protected activity; (2) he suffered an adverse employment decision; and (3) the decision was causally related to the protected activity. Parris v. Miami Herald Publ’g Co., 216 F.3d 1298, 1301 (11th Cir. 2000).
Strickland, 239 F.3d at 1206-07; see also Earl, 207 F.3d at 1367; Graham, 193 F.3d at 1283; King, 166 F.3d at 892; Dollar, 981 F.Supp. at 1419; Kaylor, 946 F.Supp. at 999; Peters, 977 F.Supp. at 1435.
Under the McDonnell Douglas burden-shifting framework referenced in Strickland, the plaintiff bears the initial burden of establishing a prima facie case of intent to discriminate. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The establishment of a prima facie case “creates a presumption that the employer unlawfully discriminated against the employee.” Burdine, 450 U.S. at 254, 101 S.Ct. 1089.
The effect of the presumption of discrimination is to shift to the employer the burden of producing, but not proving, some legitimate, nondiscriminatory reason for the contested employment action. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. To satisfy the burden of production, “[t]he defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.” Burdine, 450 U.S. at 254-55, 101 S.Ct. 1089 (citation and footnote omitted).
Once the defendant has borne its burden of production, “the plaintiff has the opportunity to come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment action.” Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997) (citations omitted), cert. denied sub nom. Combs v. Meadowcraft Co., 522 U.S. 1045, 118 S.Ct. 685, 139 L.Ed.2d 632 (1998).
[T]his circuit’s post-Hicks decisions uniformly hold that once a plaintiff has established a prima facie case and has put on sufficient evidence to allow a factfinder to disbelieve an employer’s proffered explanation for its actions, that alone is enough to preclude [summary judgment or] entry of judgment as a matter of law.
Combs, 106 F.3d at 1532 (alterations supplied).
A. Plaintiffs Deposition Testimony
Defendant urges this court to dismiss plaintiffs claims “without even progressing to application of the traditional burden-shifting analysis” based on the “admissions” in the deposition testimony quoted in section 11(H), supra.
*1235 Q. You thought [that Program Coordinator Kertrina Sharperson] did not like you, not that you were [terminated for] taking FMLA, right?
A I know that she did not like me.
Q. Right. But that was the reason that you thought she wanted you terminated, not FMLA?
A. Right.
Q. Okay.
A. Any reason. She wanted me terminated.
Q. She wanted you terminated because she had personal issues with you?
A. Right.255
Later, plaintiff testified as follows:
Q. So even if it were the case that [Program Coordinator] Kertrina [Sharperson] somehow pressured [Aide] Gina [Brand], at the end of the day, Gina [Brand]’s statements that she gave to the investigators were still true statements, right?
A. Yes, that I read, yes.
Q. And you have no evidence that Kertrina [Sharperson] tried to coerce [Aides] Freddie Dowdell, Victoria Evans, Connie Laster, Beth Meagher, Michelle Timmons, or Donna Davis, right?
A. No.
Q. And all of those people that I just mentioned also came forward with statements indicating that you had acted in violation of the Behavior Support Plan, right?
A. Right.256
Plaintiff then testified:
Q. And with the documents that I have showed you today, in fact, it appears that the reason you were terminated is allegations and a finding that you violated the Behavior Support Plan, not anything about FMLA, right?
A. True.257
Later, plaintiff testified as follows:
Q. And you have now agreed tvith me that it was not Kertrina [Sharper-son] that caused your termination, it was these other things that we’ve talked about, right?
A. The things on the paper, yes, but Kertrina [Sharperson] harassed me the whole time.
Q. But you are not bringing a claim about that harassment, right?
A. Right.
Q. So your claim for negligent training, hiring and supervision is not a valid claim, given the testimony you have given today, is it?
Mr. Auffenorde: Object to the form. That calls for a legal conclusion on the part of the witness.
Q. You have agreed with me that Kertrina Sharperson is not the one responsible for your termination, right?
A. She had everything to do with my termination.
Q. No. You have already testified repeatedly that the cause of your termination were the individuals who gave statements for the investigative report, right?
A. Right.
Q. So it was not Kertrina [Sharperson] who interfered with you taking FMLA leave, it was the fact that you did not follow the Behavior Support Plan and got reported for it*1236 that caused you not to get FMLA leave, right?
A. Right.258
Plaintiff also testified:
Q. Well, you’ve already testified that it was a violation of the Behavior Support Plan when you allowed her to leave her head on the desk, right? A. Yes. I testified to that.
Q. And so it was, therefore, reasonable for the Arc to have determined that you violated the Behavior Support Plan, right?
Mr. Auffenorde: Object to the form.
A. Right.259
Defendant acknowledges that plaintiff prefaced some answers with caveats limiting their applicability to the contents of documents presented by defendant’s counsel: e.g., by stating “According to the papers, yes”; and “that’s what’s on the paper.”
Instead, defendant’s authorities discuss plaintiffs’ unequivocal testimony. In Lightner v. City of Wilmington, 545 F.3d 260, 264 (4th Cir. 2008), and Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1337 (8th Cir. 1996),
Indeed, several courts from outside this Circuit have declined to hold the plaintiffs’ deposition testimony to be dispositive and, instead, reviewed the entire record of the case to determine the viability of the plaintiffs’ FMLA claims. See Moll v. Tyco Healthcare, No. 1:06-CV-00046, 2008 WL 420037, *14 (S.D.Ohio Feb. 14, 2008) (holding that, “inasmuch as Defendant argues Plaintiffs deposition testimony is proof that Plaintiff took no further FMLA leave after June, 2004, the Court will not construe Plaintiffs characterization of his leave as dispositive, but instead consider the record as a whole”); Collins v. United States Playing Card Co., 466 F.Supp.2d 954, 969 (S.D.Ohio 2006); Downs v. AOL Time Warner, Inc., No. 2:03-CV-1117, 2006 WL 162563, *28 (S.D.Ohio Jan. 20, 2006).
In Collins, the defendant argued that the plaintiffs testimony at his deposition was conclusive proof of the absence of a causal connection between his FMLA leave
Q. And it also would be accurate that after you took the time that you requested under the Family and Medical Leave Act, you were not penalized for taking that time, correct?
A. That’s true.
Q. And you also claim that, in the alternative ... the company retaliated against you for taking FMLA leave?
A. No.
Q. They never did that, did they?
A. No, not as far as I know about.
Collins, 466 F.Supp.2d at 969 (internal citations omitted). The court, nevertheless, concluded that:
[The plaintiffs] testimony is not dispositive of whether there was a causal connection between the exercise of his FMLA rights and his termination.... [T]he evidence demonstrates a temporal proximity between the time [plaintiff] gave the Company his request for intermittent FMLA leave in November 2004, the onset of Corrective Actions that same month, and his termination in March 2005.... [The plaintiff] alleged in his Complaint and has not abandoned his claim that the Company retaliated against him for attempting to exercise his FMLA rights. The Court will not construe his deposition testimony, particularly in the context in which it was given, as dispositive.
Id. (footnote omitted) (alterations supplied). Similarly, in Downs v. AOL Time Warner:
Plaintiff was asked on deposition whether he has any “facts to dispute the reasons [Defendant] gave [Plaintiff] for the termination?” (Plaintiffs Depo. at 336). Plaintiff said he did not. (Id.). Contrary to Defendant’s assertion, the Court does not view Plaintiffs testimony as precluding a showing of pretext. Whether Plaintiff can establish pretext must considered in view of the record as a whole, not simply from one response Plaintiff gave on deposition.
Downs, 2006 WL 162563, at *28 (alterations in original). Because plaintiff attached caveats to her deposition testimony inconsistently, this court will not hold her testimony to be dispositive, but will consider the record as a whole.
B. Plaintiffs Direct Evidence
Direct evidence of discrimination “reflects a discriminatory or retaliatory attitude correlating to the.discrimination or retaliation complained of by the employee.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (quoting Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir. 1999)). It “proves the existence of a fact without inference or presumption.” Wilson, 376 F.3d at 1086 (quoting Burrell v. Bd. of Trs. of Ga. Military Coll., 125 F.3d 1390, 1393 (11th Cir. 1997)). “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.” Dixon [v. Hallmark Companies, Inc.], 627 F.3d [849] at 854 [(11th Cir. 2010) ] (quoting Wilson, 376 F.3d at 1086). “If the alleged statement suggests, but does not prove, a discriminatory motive, then it is considered circumstantial evidence.” Akouri v. Fla. Dep’t of Transp., 408 F.3d 1338, 1347 (11th Cir. 2005) (citing Wilson, 376 F.3d at 1086).
Dockens v. Dekalb County School System, 441 Fed.Appx. 704, 708 (11th Cir. 2011); see also Stokes v. City of Montgomery, No. 2:07-CV-686, 2008 WL 4369247, *23-24 (M.D.Ala. Sept. 25, 2008) (same). “State
During her deposition, plaintiff testified that, around the time she was gathering her paperwork to request FMLA leave, Program Coordinator Kertrina Sharperson told plaintiff and plaintiffs supervisor, Qualified Mental Retardation Professional Ann Finley, that she did not want plaintiff to have the surgeries that necessitated the leave because “it was too many people trying to take FMLA [leave]. And [plaintiff had] already taken FMLA [leave] twice and [she] was taking it again. [Sharperson] was tired of folks asking for FMLA [leave].”
In addition to denying that Program Coordinator Sharperson ever made those statements,
To rebut plaintiffs testimony, defendant claims that Executive Director Klingel based her decision on statements from nine employees who witnessed plaintiffs actions toward Christina, “all of whom plaintiff conceded were not coerced” by Sharperson.
C. Plaintiffs Prima Facie Case
“To state a claim under the FMLA [without direct evidence], a plaintiff must prove three elements at trial: (1) he availed himself of a protected right under the FMLA; (2) he suffered an adverse employment decision; and (3) there is a causal connection between the protected activity and the adverse employment decision.” Parris v. Miami Herald Publishing Co., 216 F.3d 1298, 1301 (11th Cir. 2000) (alteration supplied) (citing Earl v. Mervyns, Inc., 207 F.3d 1361, 1367 (11th Cir. 2000)).
Demonstrating a casual linkage at the summary judgment stage is far less onerous than proving causation by a prepon
“At a minimum, a plaintiff must generally establish that the employer was actually aware of the protected expression at the time it took the adverse employment action.” Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 919 (11th Cir. 1993); see also, e.g., Gupta v. Florida Board of Regents, 212 F.3d 571, 590 (11th Cir. 2000); Farley v. Nationwide Mutual Insurance, 197 F.3d 1322, 1337 (11th Cir. 1999) (emphasis supplied).
Plaintiff has borne her burden of proving a prima facie case of interference and retaliation. On July 12, 2010, plaintiff requested, and received, defendant’s approval to take FMLA leave starting August 16, 2010.
Further, plaintiffs request, and approval, to take FMLA leave were not “wholly unrelated” to her termination because several of defendant’s alleged decision-makers were “actually aware” of her FMLA status. See Meeks, 15 F.3d at 1021; Hairston, 9 F.3d at 919. Executive Director Susan Klingel testified that she is defendant’s final decision-maker on hiring and firing, and that she alone made the decision to terminate plaintiffs employment.
Klingel, Sharperson, and plaintiffs supervisor, Qualified Mental Retardation Professional Ann Finley, were each aware that plaintiff had been approved for FMLA leave prior to her termination
D. Defendant’s explanation
“Once a plaintiff establishes a prima facie case, the burden shifts to the employer to ‘articulate a legitimate, non[retaliatory] reason for the challenged employment action.’ ” Morgan v. Orange County, 477 Fed.Appx. 625, 628 (11th Cir. 2012) (alteration in original) (quoting Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc)). As an explanation for terminating plaintiffs em
E. Pretext
If the employer articulates a legitimate reason for the adverse decision:
the plaintiff must demonstrate that the employer’s proffered reason is a pretext for retaliation. [Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc).] “Provided that the proffered reason is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason.” Id. at 1030. In addition, if the employer acted on an honestly held belief that the employee engaged in misconduct, even if it was mistaken, no retaliation exists. See EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1176-77 (11th Cir. 2000).
Morgan v. Orange County, 477 Fed.Appx. 625, 628 (11th Cir. 2012) (alteration supplied).
At the summary judgment stage, an employer’s assertion that an employee was fired for violating a “ ‘work rule’ ... is arguably pretextual when [the employee] submits evidence (1) that [he or] she did not violate the cited work rule, or (2) that if [he or] she did violate the rule, other employees outside the protected class, who engaged in similar acts, were not similarly treated.”
Jordan v. Warehouse Services, 81 F.Supp.2d 1257, 1271 (M.D.Ala. 2000) (alterations in original) (quoting Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1363 (11th Cir. 1999)).
Under the second prong of the Jordan test, plaintiff offers evidence that she was one of several employees who followed the challenged practice of instructing Christina to 'put her head on the desk and allowing her to fall asleep while class was in session.
Unless a supervisor “knew of the events, the events cannot be considered in determining whether [the plaintiff] and [another employee] are similarly situated.” Knight v. Baptist Hospital of Miami, Inc., 330 F.3d 1313, 1317 n. 5 (11th Cir. 2003) (alterations supplied); see also Dinkins v.
Under the first prong of the Jordan test, plaintiff fares better. Plaintiff testified that she believed her strategy of managing Christina’s behavior by instructing her to place her head on the desk to be consistent with that portion of Christina’s Behavior Support Plan stating that, if she “needs a break from a task[,] then give her a break and try again after she has calmed down.”
To determine whether plaintiff has submitted evidence sufficient to show “that [he or] she did not violate the cited work rule,” Jordan, 81 F.Supp.2d at 1271 (alterations in original) (quoting Damon, 196 F.3d at 1363 (11th Cir. 1999)), the inquiry is not whether plaintiff instructed Christina to place her head on the desk, or allowed her to fall asleep while class was in session, but rather whether plaintiff was aware that the practice constituted a violation of Christina’s Behavior Support Plan and, thus, whether it was neglectful under defendant’s “Individual Abuse, Neglect, and Mistreatment” policy. Crediting plaintiffs contentions that her supervisors themselves introduced or followed the practice, that her supervisors frequently observed Christina sleeping in class, and that her supervisors were aware of plaintiffs belief that Christina’s medication was making her drowsy, it was reasonable for plaintiff to conclude that her supervisors had ratified the challenged practice as consistent with Christina’s BSP.
Plaintiffs allegations are likewise sufficient to create a triable issue of fact regarding whether defendant terminated her employment based on an “honestly held belief’ that she violated Christina’s BSP. See Morgan, 477 Fed.Appx. at 628 (citing Total System, 221 F.3d at 1176-77). As discussed, plaintiff alleges that Program Coordinator Sharperson introduced the practices of: instructing Christina to place her head on the desk, and allowing her to fall asleep while class was in session; that Sharperson personally followed the practice; and that Sharperson often saw Christina asleep in class, but that Sharper-son did not influence the decision to termi
In sum, upon a review of the record as a whole, plaintiff has also presented indirect evidence of interference and retaliation.
F. State-Law Claims for Negligent Hiring, Training, Supervision, and Retention
Defendant moves for summary judgment on plaintiffs claims for negligent hiring, training, supervision and retention on two separate grounds: first, that defendant conducted a background check on Program Coordinator Kertrina Sharperson before offering her a position at The Arc, and found no cause for concern regarding her criminal or employment history;
Plaintiffs complaint alleges that defendant “caused [her] harassment and termination” by negligently hiring, training, retaining, and supervising Program Coordinator Sharperson and “other employees” in violation of state law.
Specifically, plaintiff states that Program Coordinator Sharperson “harassed” her, and that, “[d]ue to Defendant’s failure to cheek Sharperson’s references, and its failure to properly train and supervise Sharperson, she failed to follow FMLA guidelines and interfered with [plaintiff] taking [her] approved FMLA leave.”
Although plaintiff also states that Yolanda Watkins, a former supervisor who allegedly was intimate with both plaintiff and Program Coordinator Sharperson, was responsible for sexually harassing plaintiff, and “convincing] [Sharperson] somehow that [plaintiff] was a bad employee, [and that she] wasn’t doing what [she] was supposed to do,”
Defendant first requests summary judgment on plaintiffs claims for negligent hiring, training, supervision, and retention because it conducted a background check on Program Coordinator Kertrina Sharperson before offering her a position at The Arc, and found no cause for concern regarding
In the master and servant relationship, the master is held responsible for his servant’s incompetency when notice or knowledge, either actual or presumed, of such unfitness has been brought to him. Liability depends upon its being established by affirmative proof that such incompetency was actually known by the master or that, had he exercised due and proper diligence, he would have learned that which would charge him in the law with such knowledge. It is incumbent on the party charging negligence to show it by proper evidence.
Sanders v. Shoe Show, Inc., 778 So.2d 820, 824 (Ala.Civ.App. 2000) (quoting Collins v. Wilkerson, 679 So.2d 1100, 1103 (Ala.Civ.App. 1996); Lane v. Central Bank of Alabama, N.A., 425 So.2d 1098, 1100 (Ala. 1983)).
“[T]here is not an identifiable difference between [negligent training and supervision claims] in Alabama cases.” Zielke v. AmSouth Bank, N.A., 703 So.2d 354, 358 n. 1 (Ala.Civ.App. 1997) (alterations supplied). Thus, the requirement that a defendant have actual or constructive knowledge of an employee’s unfitness applies to claims for negligent hiring, training, and supervision. See Portera v. Winn Dixie, 996 F.Supp. 1418, 1438 (M.D.Ala. 1998).
In Jackson v. Cintas Corp., 391 F.Supp.2d 1075 (M.D.Ala. 2005), the court granted the defendant’s motion for summary judgment because the plaintiff did not present
any evidence that [the employee accused of sexual harassment] committed similar acts for a previous employer and that [the defendant] knew about these acts or should have discovered these acts in the exercise of due diligence. As such, the court finds that [the plaintiff] has failed to establish the essential elements of her negligent hiring claim.
Id. at 1100 (alterations supplied) (internal quotations omitted). As in Jackson, the plaintiff in this case alleges that Program Coordinator Sharperson “harassed” her,
Plaintiff denies alleging that Program Coordinator Sharperson engaged in harassment during her previous employment at Volunteers of America,
Plaintiff also denies reporting the alleged harassment to Executive Director Susan Klingel or Medicaid Program Coordinator Roslyn Bridges.
Further, defendant argues that plaintiffs claim fails because Program Coordinator Sharperson did not commit a tort against her.
Under Alabama law, “[a] party alleging negligent or wanton hiring, supervision, training, and retention must prove the underlying wrongful conduct of employees.” Thornton v. Flavor House Prods., Inc., Case No. 1:07-cv-712-WKW, 2008 WL 5328492, at *19 (M.D.Ala. Dec. 19, 2008) (citing Voyager Ins. Cos. v. Whitson, 867 So.2d 1065 (Ala. 2003)). Additionally, the underlying wrongful conduct must be a “ ‘common-law, Alabama tort’ committed by the employee, not [ ] a federal cause of action such as Title VIL” Ellis v. Advanced Tech. Servs., Case No. 3:10-cv-555-WHA, 2010 WL 3526169, at *2 (M.D.Ala. Sept. 3, 2010) (quoting Thrasher v. Ivan Leonard Chevrolet, Inc., 195 F.Supp.2d 1314, 1320 (N.D.Ala. 2002)).
Without an underlying tort claim, [an employee] cannot maintain his claims for negligent hiring, supervision, training, and negligent retention.
Trainer v. Supreme Beverage Co., No. 2:11-cv-00057-WMA, 2013 WL 169288, *18-19 (N.D.Ala. Jan. 10, 2013) (Acker, J.) (first two alterations in original) (third alteration supplied) (emphasis supplied).
“Alabama does not recognize an independent cause of action for sexual harassment.” Ex parte Carlisle, 26 So.3d 1202, 1204 n. 1 (Ala. 2009). This state also does not recognize a claim for the tort of outrage by an employee who allegedly was “harassed, investigated without cause, humiliated, accused of improper dealings, treated uncustomarily, and terminated without justification.” American Road Service Co. v. Inmon, 394 So.2d 361, 367 (Ala. 1980). Accordingly, defendant is likewise entitled to summary judgment on plaintiffs negligence claims because Program Coordinator Sharperson is not accused of a tort.
G. Damages for Reinstatement, Front and Back Pay, and Injunctive and Equitable Relief
Defendant moves for summary judgment on plaintiffs requests for reinstatement, front and back pay, and injunctive and equitable relief in light of after-acquired evidence that plaintiff did not disclose her criminal conviction on her employment application.
In McKennon v. Nashville Banner Publishing Co., [513] U.S. [352], 115 S.Ct. 879, 130 L.Ed.2d 852 (1995), a case involving an alleged violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), the Supreme Court held that after-acquired evidence of wrongful conduct during employment that would have resulted in termination does not “operate! ], in every instance, to bar all relief for an earlier violation of the Act.” Id. at [358], 115 S.Ct. at 884. The Court held, however, that “the after-acquired evidence of the employee’s wrongdoing bears on the specific remedy to be or*1245 dered.” Id. at [360], 115 S.Ct. at 885. The Court determined that in cases in which an employee commits an act during employment that would lead to termination and the employer finds out about the act during the course of litigation, “neither reinstatement nor front pay is an appropriate remedy.” Id. at [362], 115 S.Ct. at 886. The Court then discussed backpay, holding that it should be calculated “from the date of the unlawful discharge to the date the new information was discovered,” with the court “taking into further account extraordinary equitable circumstances that affect the legitimate interests of either party.” Id.
Wallace v. Dunn Construction Co., 62 F.3d 374, 378 (11th Cir. 1995) (alterations and emphasis supplied). The Eleventh Circuit has explicitly concluded that the reasoning underlying the holding in McKennon “applies with equal force when the after-acquired evidence concerns an employee’s fraud in the application process.” Wallace, 62 F.3d at 377 (emphasis supplied). Accordingly, the Eleventh Circuit reversed the denial of a employer’s motion for summary judgment on an employee’s claims for reinstatement, front pay, and injunctive relief because the employee failed to disclose her drug convictions on her employment application. Id. at 381. This Circuit has continued to follow McKennon in subsequent cases. See, e.g., Crapp v. City of Miami Beach, 242 F.3d 1017, 1021 (11th Cir. 2001) (quoting McKennon, 513 U.S. at 362, 115 S.Ct. 879).
Multiple courts have applied the same analysis to claims for damages pursuant to the FMLA. See, e.g., Throneberry v. McGehee Desha County Hospital, 403 F.3d 972, 976-80 (8th Cir. 2005); Miller v. AT & T Corp., 250 F.3d 820, 837 (4th Cir. 2001); Edgar v. JAC Products, Inc., 443 F.3d 501, 512-14 (6th Cir. 2006). In Calvert v. Smith’s Food & Drug Centers, Inc., No. 2:06-CV-299-TS, 2007 WL 4207198 (D.Utah Nov. 26, 2007), the plaintiff sued his former employer for FMLA violations, and the employer moved for summary judgment on damages because the plaintiff did not disclose his criminal convictions on his employment application. Id. at *7. In limiting the plaintiffs damages to the period between his termination and the date that the defendant discovered his criminal history, the Calvert court noted that
Plaintiff does not contest his criminal history. In fact, Plaintiff testified about his criminal history during his deposition. Further, Plaintiff admitted that he answered his employment application incorrectly with regard to that criminal history. Finally, Plaintiff has come forward with no evidence to dispute the Affidavit of Alan Brown which states that “[h] ad [the defendant] known of Plaintiffs extensive criminal history and his dishonesty, as exhibited in his employment application, [the defendant] would have immediately terminated Plaintiffs employment on October 2, 2006.”
Id. (alterations supplied) (footnote omitted).
As in Calvert, the plaintiff in this case has admitted that she was convicted of a misdemeanor, and that she did not disclose her conviction on her employment application. Specifically, plaintiff was convicted of a misdemeanor for “under-ringing” items during her employment as a cashier at Wal-Mart.
Further, plaintiff has produced no evidence to dispute Executive Director Klingel’s testimony that “[defendant] considers false statements in applications very serious, [that Klingel] will not hire or retain individuals who make false statements,” and that, “[h]ad [Klingel] known about [plaintiffs] falsification of her application at a time when she was applying for employment or employed by [defendant], [Klingel] would have refused to hire [plaintiff] or terminated her employment.”
Because plaintiffs damages are limited to the period between the date of her termination (August 12, 2010) and the date that the Executive Director Susan Klingel discovered her criminal history (ie., the date of plaintiffs deposition taken on February 3, 2012),
VI. CONCLUSION
This court will enter an appropriate order, consistent with this opinion, and granting: (1) the motion to hold admitted defendant’s undisputed facts numbers 68 and 69; with the exception of the portion of defendant’s undisputed fact number 68 which states that Aide Gina Brand “told [Program Coordinator Kertrina Sharper-son that plaintiff] was engaging in a practice of instructing Christina to place her head down and encouraging aides to leave her alone,”
. See doc. no. 20 (Motion for Summary Judgment); doc. no. 26 (Motion to Strike Portions of Plaintiff's Response in Opposition to Defendant’s Motion for Summary Judgment); doc. no. 29 (Motion to Strike Portions of the Affidavit of Constance Jones).
. Doc. no. 22-1 (Deposition of Sheba Rhodes), exhibit 1 (Employment Application) and exhibit 3 (Termination Notice); doc. no. 23-3 (Affidavit of Susan Klingel) ¶¶ 2-3.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 11-14.
. Id. at 16-19. Sharperson's first name is spelled variously throughout the record, including as "Katrina.” See, e.g., doc. no. 1 (Complaint) ¶ 11.
. ’ Doc. no. 23-1 (Deposition of Kertrina Sharperson), at 9.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), exhibit 2 (Interrogatory Responses) ¶ 4.
. Doc. no. 23-3 (Affidavit of Susan Klingel) V 17.
. Doc. no. 23-1 (Deposition of Kertrina Sharperson), at 24.
. Id..; doc. no. 22-1 (Deposition of Sheba Rhodes), exhibit 1 (Employment Application).
. Doc. no. 23-1 (Deposition of Kertrina Sharperson), at 25, 27-28, 49.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 48-49.
. Id. at 49.
. Doc. no. 23-2 (Deposition of Roslyn Bridges), at 7, 61.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 25-27; doc. no. 22-3 (Deposition of Susan Klingel), at 6; doc. no. 23-1 (Deposition of Kertrina Sharperson), at 8, 16-17.
. Doc. no. 23-2 (Deposition of Roslyn Bridges), at 7-8, 10; doc. no. 22-3 (Deposition of Susan Klingel), at 11-12.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 168.
. Id. at 166-67.
. Id. at 167 (alterations supplied).
. Id. at 168.
. Id.
. Id. (alteration supplied).
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 183 (alterations supplied).
. Id. at 179.
. Id. at 171.
. Id. at 175 (alteration supplied).
. Id. at 179-80.
. Doc. no. 23-4 (Affidavit of Kertrina Sharperson) ¶ 3.
. Doc. no. 23-3 (Affidavit of Susan Klingel) Í 17.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 163, 188 (alterations supplied).
. Id. at 41.
. Id., exhibit 4 (2010 Request for FMLA Leave).
. Id.
. Id. at 31, 164.
. Doc. no. 23-4 (Affidavit of Kertrina Sharperson) ¶¶ 3-4; doc. no. 23-1 (Deposition of Kertrina Sharperson), at 85.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 47-48, 210.
. Id.., exhibit 3 (Termination Notice).
. Doc. no. 23-3 (Affidavit of Susan Klingel) ¶ 2.
. Id. at ¶¶ 2-3; doc. no. 23-1 (Deposition of Kertrina Sharperson), at 61-62.
. Doc. no. 23-3 (Affidavit of Susan Klingel) ¶ 3.
. Id.; see also doc. no. 22-1 (Deposition of Sheba Rhodes), at 49.
. Doc. no. 23-3 (Affidavit of Susan Klingel) ¶ 4.
. Id.
. Id.; doc. no. 22-3 (Deposition of Susan Klingel), at 31-32; doc. no. 23-1 (Deposition of Kertrina Sharperson), at 42.
. See, e.g., doc. no. 22-1 (Deposition of Sheba Rhodes), at 223-24.
. Doc. no. 22-3 (Deposition of Susan Klingel), at 96-97.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 223-24.
. Id. at 203-04.
. Doc. no. 23-3 (Affidavit of Susan Klingel) ¶ 6; doc. no. 23-2 (Deposition of Roslyn Bridges), at 98-99.
. Doc. no. 23-3 (Affidavit of Susan Klingel) ¶ 5.
. Id.; see also doc. no. 22-1 (Deposition of Sheba Rhodes), exhibit 5(BSP), at ARC000093.
. Doc. no. 23-3 (Affidavit of Susan Klingel) ¶ 5; see also doc. no. 22-1 (Deposition of Sheba Rhodes), exhibit 5(BSP), at ARC000093.
. Doc. no. 23-3 (Affidavit of Susan Klingel) ¶ 5.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), exhibit 8 (Individual Abuse, Neglect, and Mistreatment), at 209-10 (emphasis supplied).
. Doc. no. 23-3 (Affidavit of Susan Klingel) ¶ 6; doc. no. 23-2 (Deposition of Roslyn Bridges), at 107.
. Doc. no. 23-1 (Deposition of Kertrina Sharperson), at 86.
. Doc. no. 23-3 (Affidavit of Susan Klingel) ¶ 7.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 52. "Christina’s” last name has been redacted to protect her privacy.
. Id. at 83-84, and exhibit 5(BSP), at ARC000090-ARC000091; doc. no. 22-3 (Deposition of Susan Klingel), at 48.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 72, 74.
. Id., exhibit 5(BSP), at ARC000091.
. Id., exhibit 5(BSP), at ARC000092 (alteration supplied).
. Id.., exhibit 5(BSP), at ARC000092 (emphasis in original).
. Id., exhibit 5(BSP), at ARC000090.
. Id., exhibit 5(BSP), at ARC000090-ARC000091.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), exhibit 5(BSP), at ARC000092.
. Id., exhibit 5(BSP), at ARC000093.
. Id. at 50, 77, 114, 117, 214.
. Id. at 50, 212.
. Id. at 80, 77, 114, 117, 214, 212.
. Id. at 88, 227.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 81, 117.
. Id. at 77, 114, 117, 214.
. Id. at 72-73. The exact amount of time that plaintiff worked with Christina is not clear. The record reflects that Christina's BSP was implemented on December 31, 2009, and that plaintiff's employment was terminated on August 12, 2010. Id. at 72, 74, and exhibit 3 (Termination Notice); doc. no. 23-3 (Affidavit of Susan Klingel) ¶¶ 2-3. However, plaintiff testified that Christina’s BSP was implemented before her transfer to plaintiff's classroom. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 74. If that is the case, then plaintiff could only have worked with Christina for, at most, seven and a half months.
. Id. at 49.
. Id. at 218-19, 225-26.
. Doc. no. 23-1 (Deposition of Kertrina Sharperson), at 43-44.
. Id. at 38-39.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 51 (alterations supplied).
. Id. at 61 (alterations supplied).
. Id. at 51 (alteration supplied).
. Id. at 76.
. Id. at 70 (alteration supplied).
. Id.; doc. no. 23-1 (Deposition of Kertrina Sharperson), at 41-42.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 70.
. Doc. no. 23-1 (Deposition of Kertrina Sharperson), at 38-39.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 74.
. Id., exhibit 5(BSP), at ARC000090 (alteration supplied).
. Id., at 80-81, 87-88, 218.
. Id.
. Id. at 60-21, 64.
. Id.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 60-21, 64.
. Id. at 51, 62.
. Id. at 60, 62, 67
. Id. at 67-68.
. Id. at 68 (alterations supplied).
. Id. (alterations supplied).
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 65.
. Id. at 64.
. Affidavit of Victoria Evans ¶ 5 (alterations supplied).
. Doc. no. 24 (Response in Opposition to Motion for Summary Judgment), at 4-5.
. See, e.g., footnotes 90-99.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 61.
. Id. at 205-206, and exhibit 5(BSP), at ARC000092.
. See doc. no. 22-3 (Deposition of Susan Klingel), at 47 (alterations supplied).
. Id. at 56, 69 (alterations supplied).
. Doc. no. 23-2 (Deposition of Roslyn Bridges), at 103-04; see also doc. no. 23-1 (Deposition of Kertrina Sharperson), at 61-62.
. See doc. no. 22-1 (Deposition of Sheba Rhodes), at 61-62; doc. no. 25-1 (Affidavit of Constance Jones) ¶ 8.
. Id.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 61-62 (alterations supplied).
. Id. at 118 (alterations supplied); see also id. at 98.
. Doc. no. 25-1 (Affidavit of Constance Jones) ¶ 8 (alterations supplied).
. Doc. no. 23-3 (Affidavit of Susan Klingel) ¶¶ 15, 17.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 51-52; doc. no. 23-1 (Deposition of Kertrina Sharperson), at 68.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 51-52, 62, 124-25, 202-03; doc. no. 23-1 (Deposition of Kertrina Sharperson), at 66.
. Doc. no. 23-1 (Deposition of Kertrina Sharperson), at 66 (alterations supplied).
. Id. (alteration and emphasis supplied).
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 65-66.
. Doc. no. 22-3 (Deposition of Susan Klingel), at 58.
. Id.
. Doc. no. 23-4 (Affidavit of Kertrina Sharperson) ¶¶ 1, 6.
. Id. ¶7.
. Doc. no. 24 (Response to Motion for Summary Judgment), at 8.
. Doc. no. 23-4 (Affidavit of Kertrina Sharperson) ¶ 7 (emphasis supplied).
. Id. (alteration supplied)
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 54, 133, 139-40.
.Doc. no. 25-1 (Affidavit of Constance Jones) ¶ 6.
. Id.
. Id.
. Id. ¶¶ 6-7.
. Id. ¶ 7.
. Id.
. Doc. no. 25-1 (Affidavit of Constance Jones) ¶ 7.
. Id.
. Id.
. Id.
. Id.
. Id.
. Doc. no. 25-1 (Affidavit of Constance Jones) ¶ 7.
. Doc. no. 25-1 (Affidavit of Constance Jones), exhibit A (Jones E-Mail), at 8.
. Id.
. Doc. no. 29 (Motion to Strike Portions of the Affidavit of Constance Jones).
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 42, 45, 93-94.
. Doc. no. 23-2 (Deposition of Roslyn Bridges), at 7-8, 10; doc. no. 22-3 (Deposition of Susan Klingel), at 11-12.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), exhibit 6 (Investigation Report).
. Doc. no. 24 (Response in Opposition to Motion for Summary Judgment), at 25.
. Doc. no. 22-3 (Deposition of Susan Klingel), at 21.
. Doc. no. 23-4 (Affidavit of Kertrina Sharperson) ¶ 8.
. Doc. no. 23-2 (Deposition of Roslyn Bridges), at 7-8, 10; see also doc. no. 22-3 (Deposition of Susan Klingel), at 11-12.
. Doc. no. 23-2 (Deposition of Roslyn Bridges), at 14-16; Doc. no. 22-3 (Deposition of Susan Klingel), at 28.
. Doc. no. 23-2 (Deposition of Roslyn Bridges), at 16.
. Doc. no. 23-3 (Affidavit of Susan Klingel), exhibit A (Witness Statements) (alterations supplied); see also doc. no. 23-2 (Deposition of Roslyn Bridges), at 23-24.
. Doc. no. 23-3 (Affidavit of Susan Klingel), exhibit A (Witness Statements) (alterations supplied).
. Doc. no. 23-2 (Deposition of Roslyn Bridges), at 106.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), exhibit 6 (Investigation Report), at ARC000102.
. Doc. no. 23-3 (Affidavit of Susan Klingel), exhibit A (Witness Statements); see also doc. no. 23-2 (Deposition of Roslyn Bridges), at 30.
. See doc. no. 22-1 (Deposition of Sheba Rhodes), exhibit 6 (Investigation Report).
. Id.; doc. no. 23-2 (Deposition of Roslyn Bridges), at 25.
. See doc. no. 22-1 (Deposition of Sheba Rhodes), exhibit 6 (Investigation Report).
. Id.
. Doc. no. 23-3 (Affidavit of Susan Klingel), exhibit A (Witness Statements) (alteration supplied).
. Id. (alteration supplied).
. Id. (alteration supplied).
. Id. (alteration supplied).
. Id. (alterations supplied).
. Id. (alteration supplied).
. Doc. no. 23-3 (Affidavit of Susan Klingel), exhibit A (Witness Statements) (alteration supplied).
. Id.
. Id. (alterations supplied).
. Id. (alterations supplied).
. Id.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), exhibit 6 (Investigation Report), at ARC000099.
. Id. (alterations and emphasis supplied).
. Id.
. Doc. no. 22-3 (Deposition of Susan Klingel), at 100-01; doc. no. 23-3 (Affidavit of Susan Klingel) ¶¶ 9-10; doc. no. 23-2 (Deposition of Roslyn Bridges), at 91.
. Doc. no. 22-3 (Deposition of Susan Klingel), at 45, 65-66; doc. no. 23-3 (Affidavit of Susan Klingel) ¶ 13.
. Doc. no. 22-3 (Deposition of Susan Klingel), at 72 (alterations supplied).
. Id. at 59 (alteration supplied).
. Id. at 56 (alteration supplied).
. Doc. no. 22-1 (Deposition of Sheba Rhodes), exhibit 3 (Termination Notice); exhibit 4 (2010 Request for FMLA Leave); exhibit 6 (Investigation Report).
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 29, and exhibit 3 (Termination Notice); doc. no. 22-3 (Deposition of Susan Klingel), at 18 (alteration supplied).
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 57.
. Doc. no. 23-2 (Deposition of Roslyn Bridges), at 91.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 34-36; doc. no. 22-3 (Deposition of Susan Klingel), at 87-88; doc. no. 23-1 (Deposition of Kertrina Sharperson), at 80, 84.
. Doc. no. 23-3 (Affidavit of Susan Klingel) ¶ 15.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 27-28, 30-32, 165, 194, 197.
. Id. at 199.
. Doc. no. 22-3 (Deposition of Susan Klingel), at 10, 16, 102, 104; doc. no. 23-3 (Affidavit of Susan Klingel) ¶ 15; doc. no. 22-1 (Deposition of Sheba Rhodes), at 30-31.
. Doc. no. 22-3 (Deposition of Susan Klingel), at 10, 16, 102, 104; doc. no. 23-3 (Affidavit of Susan Klingel) ¶ 15.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 144-45, and exhibit 11 (COBRA Continuation Coverage Election Notice).
. Id. at 144.
. Id. at 150-52, and exhibit 12 (Patient Statement of Account).
. Doc. no. 23-3 (Affidavit of Susan Klingel) ¶ 19; see also doc. no. 22-1 (Deposition of Sheba Rhodes), at 22, and exhibit 1 (Employment Application).
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 8-9, 22. For a definition of “under-ringing,'' see http://www.termwiki.com/ EN:under-ring.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), exhibit 1 (Employment Application), at 4.
. Id. (alteration supplied).
. Id. at 22-23.
. Doc. no. 23-3 (Affidavit of Susan Klingel) ¶ 18 (alterations supplied).
. Id. ¶ 19 (alterations supplied).
. Doc. no. 24 (Response in Opposition to Motion for Summary Judgment), at 13.
. Doc. no. 23-3 (Affidavit of Susan Klingel) ¶ 20; see also doc. no. 22-1 (Deposition of Sheba Rhodes), at 190, 193 (alteration supplied).
. Doc. no. 22-1 (Deposition of Sheba Rhodes), exhibit 8 (Individual Abuse, Neglect, and Mistreatment), at 209.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 193 (alteration supplied).
. Doc. no. 23-3 (Affidavit of Susan Klingel) ¶ 20 (alterations supplied).
. Doc. no. 26 (Motion to Strike Portions of Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment).
. See doc. no. 23-4 (Affidavit of Kertrina Sharperson) ¶ 7.
. Doc. no. 21 (Brief in Support of Motion for Summary Judgment), at 12-13 (alterations supplied).
. Doc. no. 24 (Response to Motion for Summary Judgment), at 8 (alterations supplied).
. Doc. no. 26 (Motion to Strike Portions of Plaintiff’s Response in Opposition to Defendant's Motion for Summary Judgment), at 3 (alteration supplied).
. Doc. no. 31 (Response to Motion to Strike Portions of Plaintiffs Response in Opposition to Defendant's Motion for Summary Judgment), at 2.
. Doc. no. 21 (Brief in Support of Motion for Summary Judgment), at 12 (alteration supplied).
. Doc. no. 26 (Motion to Strike Portions of Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment), at 5.
. See doc. no. 21 (Brief in Support of Motion for Summary Judgment); doc. no. 24 (Response to Motion for Summary Judgment).
. Doc. no. 29 (Motion to Strike Portions of the Affidavit of Constance Jones).
. Doc. no. 25-1 (Affidavit of Constance Jones), exhibit A (Jones E-Mail), at 8.
. See id., exhibit A (Jones E-Mail).
. Id., exhibit A (Jones E-Mail), at 8.
. Id., exhibit A (Jones E-Mail), at 14.
. Id., exhibit A (Jones E-Mail).
. Id., exhibit A (Jones E-Mail).
. Doc. no. 25-1 (Affidavit of Constance Jones), exhibit A (Jones E-Mail), at 14-15.
. Id., exhibit A (Jones E-Mail), at 9-10.
. Id., exhibit A (Jones E-Mail), at 11-14.
. Doc. no. 25-1 (Affidavit of Constance Jones) ¶¶ 6-7.
. Id. ¶ 8.
. Doc. no. 29 (Motion to Strike Portions of the Affidavit of Constance Jones), at 2-4; see also doc. no. 25-1 (Affidavit of Constance Jones) V 7 (alterations supplied).
. Doc. no. 29 (Motion to Strike Portions of the Affidavit of Constance Jones), at 4.
. Id.
. Doc. no. 24 (Response in Opposition to Motion to Strike Portions of the Affidavit of Constance Jones), at 2-4.
. Id. at 4.
. Doc. no. 24 (Response in Opposition to Motion to Strike Portions of the Affidavit of Constance Jones), at 2-3 (alterations supplied).
. Doc. no. 25-1 (Affidavit of Constance Jones), exhibit A (Jones E-Mail), at 8.
. See id. at 5, and exhibit A (Jones E-Mail), at 7.
. Doc. no. 24 (Response in Opposition to Motion to Strike Portions of the Affidavit of Constance Jones), at 3.
.Doc. no. 25-1 (Affidavit of Constance Jones), exhibit A (Jones E-Mail), at 8 (alterations supplied).
.Doc. no. 24 (Response in Opposition to Motion to Strike Portions of the Affidavit of Constance Jones), at 3 (alterations supplied).
.Id. (alteration supplied).
. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of business on September 30, 1981.
. Doc. no. 29 (Motion to Strike Portions of the Affidavit of Constance Jones), at 2-4; see also doc. no. 25-1 (Affidavit of Constance Jones) ¶ 7 (alterations supplied).
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 47-48, 210.
. Doc. no. 29 (Motion to Strike Portions of the Affidavit of Constance Jones), at 4.
. Doc. no. 25-1 (Affidavit of Constance Jones) at 5, and exhibit A (Jones E-Mail), at 7.
. Doc. no. 24 (Response in Opposition to Motion to Strike Portions of the Affidavit of Constance Jones), at 5-6 (alterations and emphasis supplied).
. Id. at 4.
. See id.
. Doc. no. 25-1 (Affidavit of Constance Jones) ¶ 7 (alterations supplied), and exhibit A (Jones E-Mail), at 12-13 (alterations supplied).
. Doc. no. 21 (Brief in Support of Motion for Summary Judgment), at 36.
. An "eligible employee” is defined as "an employee who has been employed — (i) for at least 12 months by the employer with respect to whom leave is requested under section 2612 of this title; and (ii) for at least 1,250 hours of service with such employer during the previous 12-month period.” 29 U.S.C. § 2611 (2)(A).
.29 U.S.C. § 2612(a)(1) establishes an eligible employee’s entitlement to leave as follows:
Subject to section 2613 of this title, an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:
(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter or parent has a serious health condition
(D) Because of a serious health condition that makes the employee unable to perform*1232 the functions of the position of such employee.
. Doc. no. 1 (Complaint) ¶ 16.
. Doc. no. 21 (Brief in Support of Motion for Summary Judgment), at 34 (quoting Doc. no. 1 (Complaint) ¶ 16) (emphasis in original).
.Doc. no. 24 (Response in Opposition to Motion for Summary Judgment), at 34.
. Doc. no. 30 (Reply in Support of Motion for Summary Judgment), at 12.
. Id. (alteration supplied).
.Doc. no. 22-1 (Deposition of Sheba Rhodes), at 40-41 (alterations supplied).
. Id. at 140 (alterations supplied).
. Id. at 166.
. Id. at 194-95.
. Id. at 219-20.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 165-66.
. Doc. no. 30 (Reply in Support of Motion for Summary Judgment), at 5 (emphasis supplied).
. See id.
. See id.
. Doc. no. 36 (Notice of Supplemental Authority), at 3.
. Id. at 31, 164.
. Doc. no. 23-4 (Affidavit of Kertrina Sharperson) ¶¶ 3-4; doc. no. 23-1 (Deposition of Kertrina Sharperson), at 85.
. Doc. no. 30 (Brief in Support of Motion for Summary Judgment), at 17; see also doc. no. 22-3 (Deposition of Susan Klingel), at 10, 16, 102, 104; doc. no. 23-3 (Affidavit of Susan Klingel) ¶ 15.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 27-28, 30-32, 165, 194, 197, 199.
. Doc. no. 30 (Brief in Support of Motion for Summary Judgment), at 17 (citing doc. no. 22-1 (Deposition of Sheba Rhodes), at 40).
. Doc. no. 22-1 (Deposition of Sheba Rhodes), exhibit 4 (2010 Request for FMLA Leave).
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 47-48, 210.
. Id., exhibit 3 (Termination Notice).
. Doc. no. 22-3 (Deposition of Susan Klingel), at 10, 16, 102, 104; doc. no. 23-3 (Affidavit of Susan Klingel) ¶ 15.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 27-28, 30-32, 165, 194, 197.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 34-36; doc. no. 22-3 (Deposition of Susan Klingel), at 87-88; doc. no. 23-1 (Deposition of Kertrina Sharperson), at 80, 84.
. Doc. no. 23-2 (Deposition of Roslyn Bridges), at 91.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 29, and exhibit 3 (Termination Notice); doc. no. 22-3 (Deposition of Susan Klingel), at 18 (alteration supplied).
. See doc. no. 22-1 (Deposition of Sheba Rhodes), at 61-62; doc. no. 25-1 (Affidavit of Constance Jones) ¶ 8.
. Id.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), exhibit 6 (Investigation Report), at ARC000099.
. Doc. no. 23-3 (Affidavit of Susan Klingel) ¶ 20; see also doc. no. 22-1 (Deposition of Sheba Rhodes), at 190, 193 (alteration supplied).
. Id. at 205-206, and exhibit 5(BSP), at ARC000092 (alteration supplied).
. See doc. no. 22-1 (Deposition of Sheba Rhodes), at 61-62; doc. no. 25-1 (Affidavit of Constance Jones) ¶ 8.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 51-52, 62, 124-25, 202-03; doc. no. 23-1 (Deposition of Kertrina Sharperson), at 66.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 51-52; doc. no. 23-1 (Deposition of Kertrina Sharperson), at 68.
. Doc. no. 21 (Brief in Support of Motion for Summary Judgment), at 43.
. Id. at 41.
. Doc. no. 1 (Complaint) ¶¶ 18-23 (alteration supplied).
. See id. ¶¶ 18-23.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), exhibit 2 (Interrogatory Responses) ¶¶ 4-8.
. Id., exhibit 2 (Interrogatory Responses) ¶ 5 (alterations supplied).
. Id. at 183 (alterations supplied).
. Id. at 167 (alterations supplied).
. Id. at 163, 167, 186, 194.
. Doc. no. 21 (Brief in Support of Motion for Summary Judgment), at 43.
. Doc. no. 1 (Complaint) ¶¶ 18-23; doc. no. 22-1 (Deposition of Sheba Rhodes), exhibit 2 (Interrogatory Responses) ¶ 5.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 180.
. Id., exhibit 2 (Interrogatory Responses) ¶ 4.
. Id. at 186, 189.
. Id. at 179.
. Doc. no. 23-3 (Affidavit of Susan Klingel) ¶ 17.
. Id. at 41.
.Doc. no. 21 (Brief in Support of Motion for Summary Judgment), at 36.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 8-9, 22. For a definition of “under-ringing,” see http://www.ternawiki.com/ EN:under-ring.
. Doc. no. 22-1 (Deposition of Sheba Rhodes), exhibit 1 (Employment Application), at 4.
. Id. (alteration supplied).
. Doc. no. 23-3 (Affidavit of Susan Klingel) ¶¶ 18-19 (alterations supplied).
. Doc. no. 22-1 (Deposition of Sheba Rhodes), at 22-23.
. Doc. no. 23-3 (Affidavit of Susan Klingel) ¶ 19.
. Thus, this discussion need not reach defendant's claim that this court should limit plaintiff's damages in light of after-acquired evidence that she failed to report Program Coordinator Kertrina Sharperson’s alleged violations of Christina's Behavior Support Plan. See doc. no. 21 (Brief in Support of Motion for Summary Judgment), at 37.
.See doc. no. 21 (Brief in Support of Motion for. Summary Judgment), at 12 (alteration supplied).
Reference
- Full Case Name
- Sheba RHODES v. The ARC OF MADISON COUNTY, INC.
- Cited By
- 3 cases
- Status
- Published