Jill Diamond v. Hospice of Florida Keys, Inc.

Filing

Opinion issued by court as to Appellant Jill Diamond. Decision: Vacated and Remanded. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15716
Non-Argument Calendar
________________________
D.C. Docket No. 4:15-cv-10007-JLK

JILL DIAMOND,
Plaintiff-Appellant,
versus
HOSPICE OF FLORIDA KEYS, INC.,
d.b.a. Visiting Nurse Association of The Florida Keys,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 27, 2017)
Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:

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Jill Diamond worked for Hospice of Florida Keys, Inc., d/b/a Visiting Nurse
Association of the Florida Keys, (“Hospice”) as a licensed clinical social worker.
Over the course of her employment, she took intermittent leave under the Family
and Medical Leave Act (“FMLA”) to care for her parents, who had serious health
conditions. In March and April 2014, Diamond took unforeseeable FMLA leave
for a total of nearly two weeks in order to care for her mother. Hospice notified
her in early April that her continued absences were affecting her job performance
and then, in early May, terminated her employment. Diamond filed this lawsuit
alleging that Hospice interfered with her FMLA rights and fired her in retaliation
for taking FMLA-protected leave. The district court granted summary judgment to
Hospice. Because we find genuine disputes of material fact as to whether Hospice
violated Diamond’s rights under the FMLA, we vacate and remand.
I.
Hospice provides at-home healthcare services for residents and visitors of
Monroe County, Florida, who have been diagnosed with serious or terminal
illnesses. Diamond began working for Hospice full-time as a social worker in
November 2011. In that role, Diamond was responsible for drafting care plans for
patients, coordinating care plans with the Inter-Disciplinary Team, preparing
financial and psychosocial assessments of patients and families, implementing
bereavement programs for survivors of patients, and coordinating volunteer
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services. Hospice employed two other social workers in part-time capacities.
Diamond’s direct supervisor was Judie Klitenick.
Beginning in June 2013, Diamond began taking intermittent FMLA leave in
order to care for her elderly parents, who suffered from serious health conditions.
Hospice approved Diamond’s requests for FMLA leave on various dates between
June 2013 and February 2014.
Hospice required employees to take earned personal time off (“PTO”) hours
concurrently with FMLA leave. 1 When Diamond returned from her intermittent
FMLA leave, she frequently received written notices from Hospice warning her
that her PTO balance was low and that exhaustion of PTO, along with absences,
could adversely affect her job and benefits. The notices did not address FMLA
leave at all. According to Hospice, its standard practice was to notify employees
whenever their PTO balances dropped below sixteen hours, whether they had taken
FMLA leave or not. Hospice discontinued issuing these notices for employees
taking FMLA leave concurrent with PTO leave at some point in or after January
2014. Michelle Chennault, the Human Resources (“HR”) Manager at the time her
deposition was taken, acknowledged at her deposition that an employee who
received such a notice could be discouraged from taking FMLA leave.
1

Employers are permitted to do so under the FMLA. 29 C.F.R. § 825.207(a) (“[T]he
employer may require the employee to substitute accrued paid leave for unpaid FMLA leave.
The term substitute means that the paid leave provided by the employer, and accrued pursuant to
established policies of the employer, will run concurrently with the unpaid FMLA leave”). Of
course, the employee is still entitled to take unpaid FMLA leave even if she has no paid leave.
3

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On March 20, 2014, Diamond learned that her mother was seriously ill.
That same day, she signed and submitted an FMLA leave request to HR for the
dates of March 21 (Friday) and March 24 (Monday). Her leave request was
approved on March 21 by HR Manager Dee Eudy and Clinical Director Elizabeth
Allatta. The request was returned to Diamond after approval.
While Diamond was out, Eudy sent her a memorandum requesting an
updated medical certification from a health-care provider to show that her parent
had an FMLA-qualifying health condition. 2 In addition, the management of HR
changed while Diamond was on leave. It appears that on March 24, Chennault
took over the duties of HR Manager from Eudy. 3
Diamond returned to work on March 26. On that date, the CEO of Hospice,
Jody Gross, warned Diamond that if she worked for any other company, she would
be out of a job. Then, on March 28, Chennault sent Diamond a memo requesting
“documentation to support your unscheduled leave beginning on Friday, March 21,
2014.” In the memo, Chennault requested, in addition to an updated certification,
other documentation “to support the need of intermittent use of FMLA when a 30
2

“An employer may require that an employee’s leave to care for the employee’s covered
family member with a serious health condition, or due to the employee’s own serious health
condition that makes the employee unable to perform one or more of the essential functions of
the employee’s position, be supported by a certification issued by the health care provider of the
employee or the employee's family member.” 29 C.F.R. § 825.305(a).
3

Chennault was hired as an executive assistant to CEO Jody Gross. She formally
became HR Manager in August 2014, but it appears to be undisputed that she was performing
the duties of HR Manager as of March 24, 2014.
4

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day advance notice is not provided,” such as travel receipts or health-care provider
receipts. Chennault also noted that similar supporting documentation would be
required whenever Diamond took FMLA leave with less than 30 days’ advance
notice. Diamond had never before been asked to provide travel receipts or similar
documentation.
Hospice maintains that it believed that Diamond, despite the leave request
she submitted to HR on March 20, was a “no call, no show” on March 21, 24, and
25.4 Hospice connects its request for supporting documentation to that belief.
Diamond counters that at no point did anyone at Hospice indicate to her that she
was a “no call, no show” on those dates. Also, according to Diamond, she spoke
by phone with her supervisor, Klitenick, on March 24 about patient issues, and
Klitenick did not indicate that Diamond was absent without notice.
While the parties argue this factual dispute at some length, we find that it is
not material to the issues before us. According to Chennault’s March 28 memo,
Hospice knew that Diamond’s leave on March 21, 24, and 25 was potentially
FMLA-qualifying, and the request for “supporting documentation” was based on a
lack of 30 days’ advance notice, not whether Diamond had been a “no call, no
show.” Chennault’s memo indicates that Hospice policy was to request supporting
4

More precisely, Hospice maintains that Chennault and Gross were unaware of the
approved leave request and, curiously, attempts to blame Diamond for that lack of awareness,
suggesting that she should have recognized that HR failed to follow its own practices by
returning the leave request to her after approval by the HR Manager and her supervisor.
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documentation for any FMLA leave taken with less than 30 days’ notice.
Chennault’s later emails likewise connect the need for supporting documentation
to the fact that Diamond took unforeseeable FMLA leave—that is, leave with less
than 30 days’ notice. So, drawing all reasonable inferences in Diamond’s favor,
Hospice would have requested supporting documentation in the same manner even
if Diamond had informed Hospice of her need for leave at the earliest opportunity,
which was March 20, one day before she took leave.
Diamond’s mother was hospitalized on Friday, March 28, 2014.

The

following Monday, March 31, Diamond signed and submitted two requests for
FMLA leave to care for her parents. The first request covered April 2–4 and 7–8
(April 5–6 was the weekend). The second request covered April 14–18.
Diamond was absent from work on April 2–4 and 7. She returned to work
on April 8, one day early. At 10:20 a.m. on April 8, Diamond emailed Chennault
voicing concern about Hospice’s requests for documentation because, on the day
she left to care for her mother, April 2, Chennault had told her that Hospice
“needed receipts to verify where [she] said [she] would be.” Diamond explained
that she had turned in both a medical certification from her mother’s doctor stating
the reasons her mother needed care and a note from the same doctor stating that
she accompanied her mother to an appointment on April 7. Diamond asked for
clarification of what receipts in particular Chennault was seeking.
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At 11:35 a.m. on April 8, Chennault responded that Hospice was requesting
“proof of need,” which “can include food receipts in the city where your parents
reside, anything from the hospital with dates you were out (discharge papers), [or]
any receipts for lodging, food or gas in the vicinity of your parent’s home.” The
doctor’s note was sufficient proof for April 7, Chennault stated, but documentation
“for other days taken [is] necessary.” Further, Chennault wrote,
Your continued unpaid time away from the workplace compromises
the quality of care we are able to provide as an organization. We
understand that family emergencies arise and time away is
occasionally necessary. FMLA is designed to help you with that, but
there are requirements for approval of FMLA without notice. The
documentation we have requested to certify your time away starting
March 21, 2014 is necessary. Please provide documentation for
previous days in which FMLA was requested without 30 days’ notice
in March 2014 up to April 7, 2014 before close of business Friday,
April 11, 2014.
Doc. 10-3 at 16 (emphasis added).
At 11:47 a.m. on April 10, Diamond emailed Chennault requesting, among
other things, “the document reflecting the distinction the HR Department makes
between documents needed before and after 30 days from the time FMLA time is
established.” She could find no such distinction in the FMLA paperwork she
received from Chennault. After listing the receipts and other documents she had
provided to Hospice, she asked that Hospice not place “undue pressure on [her] to
provide documentation above and beyond FMLA requirements.” In addition, she
emphasized that she was trying to minimize any “negative impact” her leave might
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have on patient care by “traveling 300 miles each way to [her] parents’ home”
“despite the care recommended by [her] mother’s MD for the entire month of
April.” Finally, Diamond disputed that her leave was negatively affecting her
work and asked how her absences were “compromising the quality of care this
agency provides.”
At 1:36 p.m. on April 10, Chennault emailed Diamond stating that her
absences on March 21, 24, and 25, and on April 2–4, and 7, would be coded as
FMLA leave based on the documentation she provided. She began this email by
stating, “Let me be clear, we are not in any way attempting to deny your request
for FMLA.”
Chennault approved Diamond’s two March 31 leave requests on April 11.
On that same date, Chennault advised Diamond that she might want to conserve
her remaining FMLA leave, which was running low. Diamond stated that, due to
this warning and other comments, she decided to forgo taking her approved leave
on April 14 after learning that she also needed to care for her mother on April 21.
In an email on April 30, Chennault responded to Diamond’s request for
clarification of how her absences were harming patient care. Chennault wrote,
As for quality of care suffering: repeated instances of care plans not
being updated on a timely basis and an instance of a patient . . .
without a care plan have been documented. Time sheets with visits
are not being completed in a timely manner as determined by your
supervisor. The bereavement group (a responsibility in your job
description) had to be coordinated and facilitated by the social work
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supervisor. These are documents examples of “quality of care”
suffering due to repeated “emergent” leaves of absence.
Doc. 18-4 at 10 (emphasis added).
Five days after Chennault’s April 30 email, Hospice terminated Diamond’s
employment. Hospice provided Diamond a termination memorandum, written by
Chennault, which reflected that Diamond was being terminated primarily for
reasons of poor job performance.

The performance deficiencies listed in

Chennault’s April 30 email also appear in the termination memo, such as the
failure to timely complete care plans and visit notes and the failure to set up the
bereavement support group. The termination memo also notes, among other “Facts
Regarding Termination,” that Diamond did not update her care-plan notes on April
29 before leaving for the day, and that, on the same day, she left the building
during a state survey without authorization.
II.
In November 2014, Diamond filed her complaint in Florida state court,
alleging that Hospice interfered with her FMLA rights and retaliated against her
for taking FMLA-protected leave. Hospice timely removed the complaint to the
United States District Court for the Southern District of Florida and later filed a
motion for summary judgment, to which Diamond responded. After holding a
hearing on Hospice’s motion for summary judgment, the district court entered an
order granting summary judgment to Hospice on both of Diamond’s claims. The
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court concluded that Diamond’s interference claim failed because she did not show
prejudice as a result of any interference, and that her retaliation claim failed
because she did not establish that Hospice’s reasons for her termination were
pretextual. This appeal followed.
III.
We review a district court’s grant of summary judgment de novo, viewing
the evidence and drawing all reasonable inferences in favor of the non-moving
party. Martin v. Brevard Cty. Pub. Schs., 543 F.3d 1261, 1265 (11th Cir. 2008).
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A dispute about a material fact is “genuine” “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
IV.
Among other purposes, Congress enacted the FMLA “to balance the
demands of the workplace with the needs of families, to promote the stability and
economic security of families, and to promote national interests in preserving
family integrity.” 29 U.S.C. § 2601(b)(1). To that end, the FMLA entitles eligible
employees to take up to twelve weeks of leave in one year for various specified
reasons, including the “serious health condition” of the employee’s parent. 29
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U.S.C. § 2612(a)(1)(C); see Smith v. BellSouth Telecomms., Inc., 273 F.3d 1303,
1305 (11th Cir. 2001). Such leave generally may be taken intermittently—that is,
“in separate blocks of time due to a single qualifying reason.” See 29 U.S.C.
§ 2612(b)(1); 29 C.F.R. § 825.202(a). 5
The FMLA makes it unlawful for employers “to interfere with, restrain, or
deny the exercise of or the attempt to exercise, any right provided under [the
FMLA].” 29 U.S.C. § 2615(a)(1). We have recognized that the FMLA prohibits
employers both from interfering with employees’ rights under the FMLA
(interference claims) and from retaliating against employees for exercising their
rights under the FMLA (retaliation claims). See Strickland v. Water Works &
Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001); 29 C.F.R.
§ 825.220(c) (stating that the FMLA “prohibits an employer from discriminating or
retaliating against an employee or prospective employee for having exercised or
attempted to exercise FMLA rights”).
A.

Interference Claim
“To prove FMLA interference, an employee must demonstrate that [she] was

denied a benefit to which [she] was entitled under the FMLA.” Martin, 543 F.3d
5

Congress authorized the Secretary of Labor to promulgate regulations “necessary to
carry out” the FMLA, 29 U.S.C. § 2654, and “[t]he Secretary’s judgment that a particular
regulation fits within this statutory constraint must be given considerable weight.” Ragsdale v.
Wolverine World Wide, Inc., 535 U.S. 81, 86 (2002). Here, there is no claim that any applicable
regulations promulgated by the Secretary are “arbitrary, capricious, or manifestly contrary to the
statute.” Id. (internal quotations omitted).
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at 1267. Benefits under the FMLA include both taking leave and being reinstated
following a leave period, subject to certain conditions. See id. With respect to an
employee’s right to take FMLA leave, unlawful employer interference includes not
only refusing to authorize FMLA leave, but also “discouraging an employee from
using such leave.” 29 C.F.R. § 825.220(b). The intent of the employer is not
relevant to an FMLA interference claim. Martin, 543 F.3d at 1267.
In addition to showing interference, a plaintiff must show that she has been
prejudiced by the FMLA violation in some way. Evans v. Book-A-Million, 762
F.3d 1288, 1296 (11th Cir. 2014) (citing Ragsdale v. Wolverine World Wide, Inc.,
535 U.S. 81, 89 (2002)). That means that a plaintiff must “demonstrate some harm
remediable by either ‘damages’ or ‘equitable relief,’” the two distinct categories of
remedies provided for by the FMLA. Id.; see 29 U.S.C. § 2617(a)(1). Damages
can include not only “wages, salary, employment benefits, or other compensation
denied or lost to [an] employee by reason of the violation,” but also, in cases where
those forms of compensation have not been denied or lost, “any actual monetary
losses sustained by the employee as a direct result of the violation.” 29 U.S.C.
§ 2617(a)(1)(A)(i). Equitable relief can include “employment, reinstatement, and
promotion.” Id. § 2617(a)(1)(B).
Here, Diamond has produced sufficient evidence for a reasonable jury to
conclude that Hospice interfered with her FMLA rights by discouraging her from
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taking FMLA leave in order to care for her seriously ill parents. See 29 C.F.R. §
825.220(b). The clearest example of such discouragement is Chennault’s April 8
email to Diamond, which stated, “Your continued unpaid time away from the
workplace compromises the quality of care we are able to provide as an
organization.” A reasonable jury could interpret this statement as a warning that
taking additional FMLA leave could put Diamond’s job in jeopardy.
Hospice has maintained throughout this case that Chennault’s April emails
to Diamond, in which Chennault made negative comments about Diamond’s
continued unpaid absences from work, related solely to the March absences and
were based on Hospice’s belief that Diamond was a “no call, no show” for those
dates. But even assuming that inference is a reasonable one, which is doubtful, it
is not the only reasonable inference that may be drawn, nor is it the one most
favorable to Diamond. See Martin, 543 F.3d at 1265.
Chennault’s April 8 email, by its terms, sweeps more broadly than just the
March absences. In the email, Chennault expressly asks for “proof of need” “for
previous dates in which FMLA was requested without 30 days’ notice in March
2014 up to April 7, 2014,” which, of course, includes Diamond’s absences on April
2–4 and 7. That Chennault meant to include April 2–4 and 7 in her request is
further shown by her statement that the April 7 doctor’s note was adequate
documentation for that date, but documentation “for other days taken” was
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necessary. Moreover, when Chennault sent the April 8 email, Diamond had just
returned from a four-day absence, she had a pending leave request for April 14–18,
and her previous requests for FMLA leave had not yet been approved. In this
context, the phrase “continued unpaid time away from the workplace” more
naturally refers to all of Diamond’s unpaid leave then under discussion or before
Chennault for approval.
In addition, the record includes other evidence of discouragement, including,
most notably, Hospice’s requests for “proof of need” in the form of gas and travel
receipts. Regarding proof of need, the FMLA allows an employer to “require that
an employee’s leave to care for the employee’s covered family member with a
serious health condition . . . be supported by a certification issued by the health
care provider of the employee or the employee's family member.” 29 C.F.R.
§ 825.305(a); see 29 U.S.C. § 2613(a).

Moreover, when an employee takes

unforeseeable FMLA leave (less than 30 days’ notice), the employee must notify
the employer as soon as practicable in compliance “with the employer’s usual and
customary notice and procedural requirements for requesting leave,” and the
employee must “respond to an employer’s questions designed to determine
whether an absence is potentially FMLA-qualifying.” 29 C.F.R. § 825.303(a)–(b).
Here, though, Hospice asked for documentation in addition to the medical
certification.

And the kinds of documentation Hospice requested have no
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necessary relation to Diamond’s need for leave or, assuming Hospice had some
reason to doubt the timeliness of Diamond’s notice, whether she could have
provided notice earlier. For example, “food receipts in the city where your parents
reside” say nothing about whether Diamond’s mother had an FMLA-qualifying
condition, but they do say where Diamond was. Thus, Hospice appears to have
been attempting to verify whether Diamond was being truthful about caring for her
parents. But, even assuming an employer could permissibly request additional
documentation to verify an employee’s absence about which it had doubts, nothing
in the record suggests that Hospice had reason to doubt Diamond’s veracity.
Indeed, by April 2014, Diamond had been taking intermittent FMLA leave with
Hospice’s approval for nearly a year in order to take care of her parents.
Nor does the record disclose “any usual and customary notice and
procedural requirements for requesting leave” that could support Hospice’s
request. For example, it is conceivable that if an employer required some form of
documentation for any and all unforeseeable leave requests, it would be “usual and
customary” for the employer to also request such documentation for unforeseeable
FMLA leave.6 But here, Hospice’s purported documentation policy applied solely
to unforeseeable FMLA leave, not leave requests generally. Additionally, when
Diamond requested the HR document outlining this policy, Chennault simply
6

We express no opinion about whether such a policy is consistent with the FMLA, as
that issue is not presented here.
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referred her to the FMLA regulations, which suggests that Hospice’s policy may
have been ad hoc. These facts could support an inference that Hospice, knowing it
could not deny Diamond’s leave requests outright, sought to discourage her from
taking FMLA leave by making approval of her leave requests more difficult.
Finally, on this record, a jury could reasonably conclude that Diamond was
prejudiced by the interference. See Evans, 762 F.3d at 1296. For example, if a
jury believed Diamond’s testimony that she would have taken more days off in
April 2014 had Chennault not discouraged her from doing so, Diamond could
prove that she sustained “monetary losses” “as a direct result of the violation,”
such as the cost of “traveling 300 miles each way to [her] parents’ home” “despite
the care recommended by [her] mother’s MD for the entire month of April.” See
29 U.S.C. § 2617(a)(1)(A)(i).
Because there is sufficient evidence for a reasonable jury to find that
Hospice interfered with Diamond’s FMLA rights and that she suffered damages as
a result, we vacate the entry of summary judgment on Diamond’s FMLA
interference claim.
B.

Retaliation Claim
To prove FMLA retaliation, the plaintiff must show that her employer

intentionally discriminated against her for having exercised an FMLA right.
Martin, 543 F.3d at 1267.

In other words, the plaintiff must show that her
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“employer’s actions were motivated by an impermissible retaliatory or
discriminatory animus.” Id. at 1267–68 (quoting Strickland, 239 F.3d at 1207
(internal quotation marks omitted)).
An employee may prove an FMLA retaliation claim through either direct or
circumstantial evidence. The parties dispute whether Diamond has produced direct
evidence of discriminatory or retaliatory animus.

We decline to resolve this

dispute because, even assuming Diamond’s evidence is entirely circumstantial, she
has presented more than enough circumstantial evidence to render summary
judgment inappropriate.
In the absence of direct evidence of retaliation, we apply the burden-shifting
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Id. at 1268. Under the McDonnell Douglas framework, the plaintiff must
first establish a prima facie case of retaliation, which consists of three elements:
(1) she engaged in a statutorily protected activity; (2) she suffered an adverse
employment decision, and (3) the decision was causally related to the protected
activity. Id. If the plaintiff makes out her prima facie case, the burden shifts to the
employer to articulate a legitimate reason for the adverse action. Id. If the
employer does so, the plaintiff must come forward with evidence sufficient for a
reasonable factfinder to conclude that the reasons given by the employer were not
the real reasons for the adverse action. Hurlbert v. St. Mary’s Health Care Sys.,
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Inc., 439 F.3d 1286, 1297–98 (11th Cir. 2006).
Here, Diamond easily established a prima facie case of FMLA retaliation.
To begin with, Diamond’s termination was sufficiently close in time to her FMLA
leave to support an inference of causation. See id. at 1298 (stating that close
temporal proximity between the protected conduct and the adverse action generally
is generally sufficient to establish a causal connection). Construed in Diamond’s
favor, the evidence shows Hospice had no problem accommodating Diamond’s
FMLA leave until March 2014, when she took unforeseeable FMLA leave to care
for her mother. From March 21 until April 21, Diamond took around thirteen days
of FMLA leave, all on short notice. Then, two weeks after April 21, on May 5, she
was fired. A jury could reasonably infer that Diamond’s use of intermittent,
unforeseeable leave in March and April 2014 was causally related to her
termination in early May 2014. See id.
Moreover, Diamond’s evidence of temporal proximity is strongly
corroborated by other evidence showing a causal connection between her FMLA
leave and her termination. Diamond began having more difficulty getting FMLA
leave approved once Chennault took over HR Manager duties in March 2014. And
Chennault subsequently made negative comments to Diamond about her use of
FMLA leave.

Specifically, Chennault notified Diamond on April 8 that her

“continued unpaid time away from the workplace compromises the quality of care
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we are able to provide as an organization,” and then, on April 30, identified
specific “examples of ‘quality of care’ suffering due to repeated ‘emergent’ leaves
of absence.”

Five days later after the April 30 email, Hospice terminated

Diamond’s employment. Based on these facts, Diamond established a prima facie
case.
As legitimate reasons for the adverse action, Hospice contends that it
“terminated Ms. Diamond’s employment for disregarding direct orders from her
supervisor to complete the open care plans for hospice patients before leaving for
the day and violating Survey guidelines by leaving the premises during a State
Survey without notifying the Clinical Director.”

Because Diamond has not

specifically rebutted these facts, Hospice argues, it is entitled to summary
judgment. We are not persuaded.
Diamond has presented sufficient evidence of pretext. A reasonable jury
could conclude that Hospice’s proffered reasons were not what actually motived its
conduct and that Diamond was discriminated against for having exercised her
FMLA rights. See Martin, 543 F.3d at 1267; Hurlbert, 439 F.3d 1298.
Although Hospice attempts to focus on the two instances described above—
Diamond’s purported insubordination and her violation of Survey guidelines—a
jury could reasonably conclude that, even if these events were undisputed, they
were minor considerations that had little impact on the decision to terminate
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Diamond’s employment. In the termination memo, these two instances do not
appear in the lists of “offenses” (graded as “serious,” “major,” and “critical”),
which, according to the memo, were “cause for disciplinary action,” up to and
including termination. All of the alleged disciplinary offenses in the memo were
“productivity related” deficiencies or “acts of misconduct” related to patient care.
Furthermore, Diamond was never disciplined for her behavior on April 29, nor, for
that matter, for any of the other alleged disciplinary offenses. Moreover, at her
deposition, Chennault, who wrote the termination memo, stated that the reason for
Diamond’s termination was poor job performance. And Hospice concedes that the
two instances it relies on did not alone support Diamond’s dismissal, but rather
now asserts that they were considered “in conjunction with her . . . poor job
performance with respect to time management, completing care plans, and other
required documentation.”
Furthermore, Diamond presented evidence showing that Chennault
negatively commented on her use of unforeseeable FMLA leave and directly
connected her use of FMLA leave to deficiencies in the timeliness of her work
documentation, which appear to be the focus of the termination memo. Based on
these comments, as well as the close proximity of the termination decision to
Diamond’s use of unforeseeable leave and Hospice’s dubious requests for
documentation of such leave, the record contains a genuine dispute of material fact
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Case: 15-15716

Date Filed: 01/27/2017

Page: 21 of 21

as to whether Hospice discriminated against Diamond for taking FMLA-protected
leave in violation of the FMLA. See Martin, 543 F.3d at 1268 (finding a genuine
issue of material fact where the employer’s proffered reason was performance
related, the employer warned the employee about the ramifications of taking
FMLA leave, and the adverse action was in close proximity to the use of leave);
Strickland, 239 F.3d at 1206.
V.
For the reasons stated, we vacate the entry of summary judgment in favor of
Hospice on Diamond’s FMLA interference and retaliations claims, and we remand
this case for trial.
VACATED AND REMANDED.

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