Klein v. L-3 Communications Corporation et al

Filing 43

MEMORANDUM OPINION AND ORDER that Defendants' 19 Motion for Summary Judgment is GRANTED as further set out in the opinion and order, and Klein's claims against L-3 and Army Fleet are hereby DISMISSED WITH PREJUDICE. It is further ORDERED that the trial scheduled in this case is CANCELLED. A separate judgment is forthcoming. Signed by Honorable Judge Mark E. Fuller on 11/1/2013. Signed by Honorable Judge Mark E. Fuller on 11/1/2013. (Deadline terminated: Jury Trial set for 12/2/2013.) Copies furnished to calendar group, WB. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
CAROLYN KLEIN,
Plaintiff,
v.
L-3 COMMUNICATIONS
CORPORATION, ARMY FLEET
SUPPORT, LLC,
Defendants.

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CASE NO.: 1:12-cv-956-MEF
(WO - Do Not Publish)

MEMORANDUM OPINION AND ORDER
Plaintiff Carolyn Klein (“Plaintiff” or “Klein”) brings this action against Defendants
L-3 Communications Corporation (“L-3”) and Army Fleet Support, LLC (“Army Fleet”)
(collectively, “Defendants”) as a result of her termination from Army Fleet. This cause is
now before the Court on Defendants’ Motion for Summary Judgment (Doc. #19) filed on
August 16, 2013. Having carefully considered the parties’ arguments and evidentiary
submissions, the applicable case law, and the record as a whole, the Court finds that the
motion is due to be GRANTED.
I. JURISDICTION AND VENUE
This Court has subject matter jurisdiction over the claims in this action under 28
U.S.C. §§ 1331 and 1343. The parties do not contest personal jurisdiction or venue, and the
Court finds adequate allegations in support of both.

II. STANDARD OF REVIEW
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is
appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The party asking for summary judgment “always bears
the initial responsibility of informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which it believes demonstrates the
absence of a genuine issue of material fact.” Id. at 323. The movant can meet this burden
by presenting evidence showing there is no dispute of material fact, or by showing the nonmoving party has failed to present evidence in support of some element of his case on which
he bears the ultimate burden of proof. Id. at 322–23.
Once the moving party has met its burden, the non-moving party must “go beyond the
pleadings and by his own affidavits, or by the ‘depositions, answers to interrogatories, and
admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’”
Id. at 324. To avoid summary judgment, the non-moving party “must do more than simply
show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the other hand, a district court
ruling on a motion for summary judgment must believe the evidence of the non-movant and
must draw all justifiable inferences from the evidence in the non-moving party’s favor.
2

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). After the non-moving party has
responded to the motion for summary judgment, the district court must grant summary
judgment if there is no genuine dispute of material fact and the moving party is entitled to
a judgment as a matter of law. See Fed. R. Civ. P. 56(c).
III. FACTS
The Court has carefully considered the submissions of the parties in support of and
in opposition to the motion. The submissions of the parties, when viewed in the light most
favorable to the non-moving party, establish the following material facts:
A.

The Parties
1.

Army Fleet and L-3

Army Fleet maintains aircraft for the military at Fort Rucker in Dale County,
Alabama. Army Fleet is a wholly owned subsidiary of L-3, an international company.1
Army Fleet and L-3 maintain separate books and records, separate payrolls, separate
computer systems, and separate physical offices. Army Fleet and L-3 do not employ the
same employees, directors, or officers. L-3 does not actively participate in or control the
day-to-day operations of Army Fleet.
However, as Army Fleet’s parent company, L-3 does issue and provide Army Fleet
employees with a handbook. Also, while Army Fleet maintains many of its own policies,
Army Fleet employees are subject to L-3 policies, including those on workplace respect,

1

Lesa Hatfield, a human resources generalist for Army Fleet, describes Army Fleet as
“standalone” from L-3. “We do our own thing.” (Doc. #21-3.)
3

harassment, equal employment opportunities, and ethics. Army Fleet adopts and follows
these policies in an effort to be more “uniform,” and L-3 trains Army Fleet employees on
these workplace policies. L-3 has no involvement with the hiring, disciplining, or firing
decisions concerning Army Fleet employees unless an ethics issue is involved. In those
cases, L-3 is consulted regarding the ethical issue prior to an employment decision being
made. Legal counsel for L-3 and Mitch Moore (“Moore”), an L-3 Vice President, are
invited to and periodically participate in Army Fleet committee meetings regarding ethics
complaints made at Army Fleet. L-3 is also involved with corrective action requests and
preventative action requests for Army Fleet, issues guidelines and provides final approval
of Army Fleet’s recommendations as to the amount of merit increases for Army Fleet
employees, and issues a benefits questionnaire to new Army Fleet hires or those changing
their benefits. In this case, the L-3 legal department was consulted prior to Klein’s
termination for the purpose of ensuring that her lay off complied with any WARN2 Act
requirements.
2.

Klein

Klein is a certified public accountant. She was hired by Army Fleet on October 30,
2006, and was laid off on August 27, 2012, effective September 7, 2012, as part of a
reduction in force. Prior to Army Fleet, Klein worked 15 years for the Air Force in an

2

The WARN Act refers to the Worker Adjustment and Retraining Notification Act, which
provides certain protections to workers in the event of plant closings and mass layoffs. See 29
U.S.C. § 2101, et seq.
4

administrative capacity and 18 years for the Defense Contract Audit Agency performing
financial audits of military maintenance contractors.
Klein’s chain of command was within Army Fleet. She reported to and was
supervised by Army Fleet employees and was assigned work by Army Fleet employees.
Klein was paid by Army Fleet. Klein had contact with L-3 personnel “very rarely.” In fact,
she recalled meeting with only three L-3 employees on a handful of occasions to discuss a
complaint she had made about questionable labor charges and accounting irregularities in
Army Fleet’s Finance and Accounting Department. Apart from this, Klein’s only other
contact with L-3 employees was “[m]aybe just a meeting, passing in the hallway, or an
introduction.” (Doc. #21-1.)
B.

Klein’s Employment with Army Fleet
1.

Employment History

Klein was hired by Army Fleet as a Contracts Coordinator on October 30, 2006. She
reported to Free Lee and later John Hamlin (“Hamlin”) and Dave Pruitt (“Pruitt”) in the
Finance and Accounting Department. Klein worked as a Contracts Coordinator until a
reduction in force took place in the Finance and Accounting Department. She was then
transferred to Internal Auditor in the Quality Department on November 14, 2007. As an
Internal Auditor, Klein primarily performed financial, accounting, and human resources
audits, although she was also tasked with aviation-related audits. Her supervisor changed
from Pruitt to Michael Olive (“Olive”).
On March 6, 2009, while an Internal Auditor, Klein submitted a corrective action
5

request to Olive concerning questionable labor charges and accounting irregularities she
believed existed in Pruitt’s Finance and Accounting Department. A few weeks later, on
March 22, 2009, Klein was promoted to a Senior Internal Auditor position in the Quality
Department.

The job description for Senior Internal Auditor consisted primarily of

financial/accounting audits, as opposed to aviation/maintenance-related audits. Still, as a
member of the Quality Department, Klein was expected to perform aviation-related audits,
as were all auditors in the Quality Department. Olive, who remained Klein’s supervisor after
her reclassification to Senior Internal Auditor, knew nothing of the job description for a
Senior Internal Auditor. Indeed, it appears that Olive was most familiar with the job
requirements of the Quality Auditor/Monitor, whose primary function is to supervise and
audit activities and workers engaged in the inspection and testing of aircraft equipment, parts,
supplies, and materials, in addition to performing other various auditing-related tasks.
On April 28, 2009, Klein joined in the grievance of another employee about the
bullying behavior of Pruitt between 2007 and 2009. Klein’s complaint about Pruitt was
investigated, and at the conclusion of the investigation, Pruitt was moved to another office
in Mississippi by June 25, 2009.
In May 2009, Klein again voiced her concerns to Olive about questionable labor
charges and accounting irregularities in Pruitt’s department. An internal investigation was
conducted regarding Klein’s complaints. On June 26 and 30, 2009,3 Klein met with an

3

Klein also met with two other L-3 employees regarding this complaint, but it is unclear
exactly when this meeting or meetings took place.
6

internal auditor from L-3, and it was suggested during the June 26th meeting that Klein’s
supervisor change from Olive to Hamlin (who was Army Fleet’s general manager at the time)
to gain a level of independency. This change never happened. Instead, on June 30, 2009,
Klein was called into a meeting with Olive and Tom Allen, another Army Fleet employee,
and was told that her job description (but not her job title) was changing. Specifically, Klein
learned that she would no longer be performing financial/accounting audits but would instead
be performing quality/maintenance-type audits. Klein was shown a list of duties she would
be performing, and she complained that the most important and enjoyable aspects of her job
were being taken away. Klein claims that she also learned during this meeting that her
financial auditing duties were given to another employee,4 but these duties were actually
outsourced to a third-party accounting firm. To help her perform these aviation-related
duties, Klein completed an extensive training course and was certified as a AS9100 Lead
Auditor in Aerospace Standards in November 2009, qualifying her to perform avaiationrelated audits.
In May 2010, Klein received a 1.5% merit pay increase from $75,116 to $76,243.76
annually. This increase was based on Klein’s 2010 performance based management
(“PBM”) review score and her salary at the time relative to the salary midpoint for her
4

Klein’s briefing on this argument is somewhat contradictory. While Klein claims at one
point in her brief that her financial auditing duties were given to another Army Fleet employee, she
appears to subsequently concede that these duties were indeed outsourced. (See Doc. #28, p. 9)
(“[T[he SOX audits were outsourced long before Plaintiff was ever selected for the senior internal
auditor position.”). After reviewing the record, it appears to the Court that the audit supposedly
given to another employee was already on Army Fleet’s auditing schedule for 2009 and that the
remainder of the financial auditing duties were outsourced.
7

position ($70,600). Klein claims that this low increase was unfair and retaliatory (it appears
she expected closer to a 3% increase), as it was based on a poor performance review that
resulted from Olive grading her against the expectations for a Quality Auditor/Monitor, as
opposed to a Senior Internal Auditor, which was the position she held at the time.
Klein again voiced her concerns about questionable labor charges and accounting
irregularities in September 2010.

Klein filed a written “management” grievance on

September 9, 2010. Army Fleet investigated the grievance. During the investigation, Klein
complained that she was being retaliated against for reporting the accounting irregularities
and that she was no longer assigned meaningful work as a result. Klein also complained
about her low merit increase in May 2010. During the investigation, Olive admitted that
Klein’s areas of focus are human resources, information systems, and procurement, and that
she is limited due to her lack of an aviation background. The investigation concluded with
a recommendation that Olive place greater emphasis on communicating with Klein and that
he begin a comprehensive field training program with her.
After Klein’s financial/accounting auditing duties were removed in June 2009, her
duties were more align with the duties of a Quality Auditor/Monitor, rather than a Senior
Internal Auditor, the position Klein still held, although all auditors in the Quality Department
were expected to perform aviation-related audits. Minimum qualifications for the Quality
Auditor/Monitor position include: (1) a high school diploma or equivalent; (2) successful
completion of formal training by the U.S. Army or Armed Forces equivalent, or training
courses conducted by industry or civilian institutions; (3) a minimum of five years experience
8

in aviation maintenance and a valid FAA Airframe and Powerplant Certificate; (4) a
minimum of three years quality control experience; (5) a thorough working knowledge of
aircraft systems, maintenance publications, basic tools, special tools, and equipment; (6) the
ability to read and interpret technical data, blueprints, and instructions; (7) knowledge of
corrosion detection, prevention and treatment; (8) familiarity with flight line operations and
safety requirements; and (9) an ability to use, with accuracy, all measuring, testing, and
diagnostic equipment normally associated with aircraft maintenance. Prior to joining Army
Fleet, Klein had not performed aircraft maintenance audits, and she did not consider herself
qualified to perform aircraft maintenance or other aviation-related audits because she knew
nothing about aircrafts or aircraft maintenance.

While Klein did obtain a AS9100

certification for Lead Auditor, there is no dispute that she did not meet the minimum
qualifications of the Quality Auditor/Monitor position, at least as described in the job
description.
Klein expressed to Olive on multiple occasions that she was unqualified to perform
aircraft maintenance audits and that she feared a loss of life or property could result if she
did, but she was nevertheless asked to perform aircraft maintenance and aviation-related
audits. While Klein would continue to perform audits she felt she was qualified to perform
as a Senior Internal Auditor, such as contracts, information systems, and human resources,5

5

Klein claims that, after late June 2009, these audits were either cancelled or assigned
to other auditors.
9

she refused to perform maintenance or aviation audits, citing her lack of qualifications.6
On June 22, 2011, while Klein was still a Senior Internal Auditor, she received a
performance evaluation from Olive that scored her as 47–not fully meeting standards. That
evaluation, however, was based on the Quality Auditor/Monitor position, as opposed to the
Senior Internal Auditor position Klein still held at the time. Klein was unaware of the job
expectations for the Quality Auditor/Monitor position until she was provided the written
goals for that position a few days before her 2011 evaluation. Klein objected to being
evaluated based on the Quality Auditor/Monitor position, and she submitted a formal
response to Olive regarding the unfairness of her evaluation. As a result, Olive revised the
evaluation and changed Klein’s rating to 69–fully meets standards. At the time of Klein’s
initial 2011 evaluation and subsequent revision, Olive had not seen the job expectations for
the Senior Internal Auditor position and had not provided any goals to Klein for that
particular position.
Some time in July 2011, a position was posted for Principal Internal Compliance
Auditor, which was within Army Fleet’s Finance and Accounting Department. The job
description for this position was very similar, but not identical, to the job description for
Klein’s Senior Internal Auditor position. Klein met the minimum qualifications for the
Principal Internal Compliance Auditor job and expressed interest in it, but she was not

6

Olive, on the other hand, testified that Klein would refuse to perform assigned
maintenance audits (as well as other types of audits) for a variety of reasons, ranging from not
having her safety glasses or her boots, to it being allergy season, to her having to do the audit at
night or having to walk to the hangers in the rain. (Doc. #33-1.)
10

considered for the position. Around that same time, Klein’s position with Army Fleet was
reclassified from Senior Internal Auditor to Quality Auditor/Monitor7 to align her
classification to the rest of the Quality Department.8 Klein expressed her concern to Olive
that she was not qualified to perform the type of maintenance and aviation audits required
of this position and that she did not desire to be transferred to this position.
In January 2012, Klein was assigned to be the quality auditor for the Modification
Work Order (“MWO”) project. As part of this project, Klein was required to audit the
maintenance process for certain aircraft.

Klein, who had a AS9100 Lead Auditor

certification at the time, followed along with several quality auditors to familiarize herself
with the project.9 That training notwithstanding, Klein still refused to perform the audit,
citing her lack of qualifications. Olive explained to Klein that she was only to audit the
maintenance process, not the maintenance itself,10 but Klein still would not perform this
7

Klein learned of this reclassification in June 2011, but it did not become effective
until July 11, 2011.
8

More specifically, Army Fleet contends that Klein would often refuse to perform assigned
aviation and maintenance-related audits on the basis that it did not fall within her job description as
a Senior Internal Auditor, despite the fact that this position was within the Quality Department,
where all auditors were expected to perform aviation-related audits. Thus, Army Fleet contends
that to preclude Klein from relying on her technical classification as Senior Internal Auditor (as
opposed to Quality Auditor/Monitor) to refuse to perform assigned aviation and maintenance-related
audits, it involuntarily reclassified her position to Quality Auditor/Monitor.
9

With respect to the training given to Klein, Olive testified: “[E]ven though I’d explained
to her how to do it, what to do it, other people had offered to show it to her, I’d sat down at her desk
and showed it to her, she still didn’t feel like she could do it.” (Doc. #33-1.)
10

Klein claims, however, that performing the MWO would have required her to actually
evaluate the specific maintenance being performed on the aircraft, rather than simply determining
whether the documentation regarding the performance of certain maintenance was in order. For
11

project or other aviation-related audits. As a result, on May 14, 2012, Klein was issued a
written letter of counseling for insubordination. During the counseling session, Klein again
expressed her belief that she was not qualified to perform aviation-related audits and asked
that she be reassigned to the procedures group. The written counseling reflects that Klein
was reassigned to the procedures group, and she worked in this position a few days before
beginning medical leave in May 2012. However, Klein’s position was never officially
reclassified to the procedures group before her termination in September 2012. Instead,
Klein remained officially classified as a Quality Auditor/Monitor at the time of her
termination.
2.

Termination

In 2012, Army Fleet reduced its flight hours at Ft. Rucker. As a result, some time
between May and August 2012, Olive received a directive from Army Fleet to reduce his
department by one person. Olive stacked and ranked his employees based on their most
recent performance score (2011) and his personal opinion of performance. Klein ranked at
the bottom of all quality auditors in Olive’s department. As such, Klein was selected for
termination as part of the reduction in force.
3.

FMLA

Klein was involved in a boating accident in May 2012 during which she suffered a

example, Klein testified that performing the MWO would have required her to determine whether
proper maintenance had been performed in order for the red-X (no flight) status of an aircraft to be
removed and the aircraft be put back into flight status. Klein did not believe she had the proper
training to make such a critical determination.
12

spinal fracture. Army Fleet learned of Klein’s injury immediately and knew that she would
need medical leave. However, Army Fleet did not place Klein on leave under the Family and
Medical Leave Act (“FMLA”), did not discuss FMLA leave with her, and did not provide
her with FMLA paperwork. Instead, Klein took 12 weeks of non-FMLA leave beginning
May 31, 2012, and drew short-term disability during this time. No one at Army Fleet or L-3
ever stated or suggested that Klein’s leave for her back injury would cause her to lose her
job. In fact, Klein had taken similar non-FMLA leave in the past for a medical condition and
was returned to work and accommodated.
The decision to terminate Klein as part of a reduction in force was made while she
was out on leave for her back injury. Klein was released to return to work with no
restrictions on August 27, 2012, and within hours of returning to work, she received her
formal notification that she was being laid off as part of a reduction in force effective
September 7, 2012.
D.

Procedural History
Klein filed her first EEOC Charge of Discrimination on July 11, 2011. Therein, she

alleges claims for sex and age11 discrimination as well as retaliation. Klein’s retaliation claim
was based on (1) her 2011 performance evaluation against the expectations of a Quality
Auditor/Monitor when she was a Senior Internal Auditor; (2) her reclassification to Quality
Auditor/Monitor when she was not qualified for the position after she complained about

11

Klein did not pursue her age claims before the EEOC and has likewise not pursued any
such claims in this litigation.
13

Pruitt; (3) advertising her Senior Internal Auditor position as “vacant” when she still held the
position;12 and (4) her lower than expected merit increase in 2010. This Charge was against
Army Fleet only, and Klein identified the dates of discrimination as June 22, 2011, through
July 7, 2011.13
On July 26, 2012, Klein filed her second supplemental Charge with the EEOC,
alleging additional sex discrimination and retaliation based on her May 14, 2012 written
counseling. Again, this Charge was against Army Fleet only and identified the dates of
discrimination as April 1, 2012, though May 14, 2012.
On November 3, 2012, Klein filed her third supplemental Charge with the EEOC
claiming sex discrimination and retaliation. Klein identified the alleged retaliatory acts as
follows: (1) reassigning her job duties in the Summer of 2009; (2) her May 2010 pay
increase; (3) advertising her position as “vacant” in May 2011 when she still held the
position; (4) her poor 2011 performance review; (5) her involuntary transfer to the Quality
Auditor/Monitor position in July 2011; (6) being given few job assignments after this
transfer; (7) her May 14, 2012 written counseling; and (8) her termination. Klein also
asserted for the first time that this Charge was a “continuing action,” and she named both

12

This position actually advertised was Principal Internal Compliance Auditor, which Klein
claims was essentially the same as her Senior Internal Auditor position, although the job tasks for
these two positions were similar but not identical.
13

In November 2011, Klein also submitted a written complaint with the Department of
Defense Office of Investigator General about her auditing concerns and being asked to perform
aircraft maintenance audits in what she perceived to be retaliation for expressing her auditing
concerns.
14

Army Fleet and L-3 as her employers.
Klein was issued a notice of right to sue on her request on November 8, 2012. Klein
filed her complaint on October 31, 2012, asserting claims for interference and retaliation
under the FMLA (Count One); sex discrimination under Title VII (Count Two); retaliatory
hostile work environment under Title VII (Count Three); retaliation under the False Claims
Act (Count Four); and Intentional Infliction of Emotional Distress (Count Five). Defendants
seek summary judgment on all of Klein’s claims.
IV. DISCUSSION
A.

Claims Against L-3
The Court must first address whether L-3 can be held liable for Klein’s claims in this

case. L-3 argues that it cannot because it is merely the parent company of Army Fleet and
never employed Klein. Klein, on the other hand, argues that L-3 was her employer under
either the “single employer” or “joint employer” theory, and, therefore, L-3’s liability is
appropriate.
Courts typically consider a parent company to be a separate corporate entity from its
wholly owned subsidiary. See, e.g., Perry v. Household Retail Servs., Inc., 953 F. Supp.
1378, 1381 (N.D. Ala. 1996). Indeed, “[t]he concept that a corporation is a legal entity
existing separate and apart from its shareholders is well-settled law[,]” and courts are
cautioned not to lightly disregard that concept. Id. “The mere existence of a parentsubsidiary relationship is not enough to impose liability on the parent.” Wood v. S. Bell Tel.
& Tel. Co., 725 F. Supp. 1244, 1249 (N.D. Ga. 1989). Rather, at least in the employment
15

context, courts have imposed liability on a parent company for its subsidiary’s conduct if the
parent company qualified as the employee’s employer under either the single or joint
employer theory.14
A single employer theory “involves examining various factors to determine if two
nominally independent entities are so interrelated that they actually constitute a single
integrated enterprise[.]” Long v. Aronov Realty Mgmt., Inc., 645 F. Supp. 2d 1008, 1029
(M.D. Ala. 2009) (internal quotations and citations omitted). The showing necessary to
warrant a single employer finding is a high level of integration with respect to ownership and
control. See id. at 1030; McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 933
(11th Cir. 1987). The relevant factors courts are to consider are: (1) the interrelation of
operations; (2) centralized control of labor relations; (3) common management; and (4)
common ownership or financial control. Id. Ultimately, the single employer analysis
14

In this Circuit, the single and joint employer theories have been widely recognized in the
Title VII context and have also been recognized in the FMLA context. See, e.g., Llampallas, 163
F.3d 1236, 1244–45 (Title VII); Virgo, 30 F.3d 1350, 1361 (Title VII); McKenzie, 834 F.2d 930, 933
(Title VII); 29 C.F.R. § 825.104(c)(2) (discussing “integrated employer” and “joint employment”
tests in FMLA context); Cardinale v. S. Homes of Polk Cnty., Inc., 310 Fed. App’x 311, 312 (11th
Cir. 2009) (discussing FMLA’s integrated employer and joint employment regulation). However,
neither party has discussed whether such theories are applicable to Klein’s retaliation claim under
the False Claims Act. A handful of courts have applied or at least discussed the potential application
of the single/joint employer theories in the context of claims under the False Claims Act. See
Campion v. N.E. Utilities, 598 F. Supp. 2d 638, 654–55 (M.D. Pa. 2009); United States of Am. v.
Hackensack Univ. Med. Center, 2005 WL 3542471, at *1 (D.N.J. Dec. 23, 2005), aff’d 495 F.3d 103
(3rd Cir. 2007); Thompson v. Quorum Health Res., LLC, 2007 WL 2815972, at *3 (W.D. Ky. Sept.
27, 2007). While no bright-line rule has presented itself to the Court through its research, a decision
on this issue is unnecessary at this point, as Klein has failed to create a genuine dispute that L-3
qualified as her employer under either the single or joint employer theory, as discussed in detail
below. Moreover, a decision as to whether the single or joint employer theory applies to Klein’s
outrage claim is similarly unnecessary, as Klein has conceded that summary judgment is due to be
granted to Defendants on that claim.
16

“‘concentrate[s] on the degree of control an entity has over the [allegedly liable conduct]’ on
which the suit is based.” Long, 645 F. Supp. 2d at 1030 (quoting Llampallas v. MiniCircuits, Lab, Inc., 163 F.3d 1236, 1244–45 (11th Cir. 1998)).
The Court finds that L-3 does not qualify as Klein’s employer under the single
employer theory. First, the evidence does not demonstrate a sufficient interrelation of
operations. Courts are to consider several indicia of interrelatedness: “(1) combined
accounting records; (2) combined bank accounts; (3) combined lines of credits; (4) combined
payroll preparation; (5) combined switchboards; (6) combined telephone numbers; and (7)
combined offices.” Walker v. Boys and Girls Club of Am., 38 F. Supp. 2d 1326, 1331 (M.D.
Ala. 1999). In this case, the undisputed evidence shows that L-3 and Army Fleet maintain
separate financial books, separate accounting records, and a separate payroll. There is also
insufficient evidence of combined lines of credit, combined offices, combined bank accounts,
or combined switchboards or telephone numbers between the two.
Second, the evidence does not demonstrate centralized control of labor relations
between L-3 and Army Fleet. The type of control required to meet this criterion “is not
potential control, bur rather actual and active control of day-to-day labor practices.” Fike v.
Gold Kist, Inc., 514 F. Supp. 722, 727 (N.D. Ala. 1981). Klein’s chain of command was
always within Army Fleet. Klein never reported to anyone at L-3. Instead, she was
supervised by Army Fleet employees, received her work assignments from Army Fleet
employees, and was paid by Army Fleet. Klein only recalled meeting with three L-3
employees on a handful of occasions over her almost six years of employment with Army
17

Fleet. In other words, the evidence before the Court does not demonstrate that L-3 exerted
the type of active control over the daily operations of Army Fleet to justify a finding of
centrally controlled labor operations between the two.
The Court notes that Klein places significant emphasis on the fact that L-3 issued
policies to Army Fleet, particularly ethics policies, and provided some guidance to Army
Fleet with respect to merit pay increases, employee training, employee benefits, and
corrective action reports. Klein points to this as evidence that L-3 actively controlled the
day-to-day operations of Army Fleet. This type of involvement, however, is insufficient to
establish centralized control of labor.

Parent corporations are “expected—indeed,

required—to exert some control over its subsidiary” through normal incidents and
involvement of ownership, such as choosing direction and setting general policies. See In
re Silicone Gel Breast Implants Prods. Liab. Litig., 887 F. Supp. 1447, 1452 (N.D. Ala.
1995) (citing Anderson v. Abbott, 321 U.S. 349, 362 (1944)). While there is no dispute that
L-3 was involved with Army Fleet’s operations through issuing various policies to Army
Fleet, training employees, providing benefit questionnaires and red-lined reports, and being
involved in other aspects of Army Fleet’s business, such involvement did not exceed the
bounds of control any parent company is expected to exercise and maintain over its
subsidiary.15
15

Compare Llampallas, 163 F.3d at 1245 (finding no single employer when one company
was not involved in the adverse employment action, had no interaction with the other company’s
employees, and made no decisions that affected the terms and conditions of the other company’s
employees); and Walker, 38 F. Supp. 2d at 1326 (finding no centralized control of labor operations
even though national organization provided insurance and pension benefits for local organization’s
18

Klein also relies on the fact that the L-3 legal department was consulted before her
termination as evidence of centralized control of labor operations between L-3 and Army
Fleet. Both the single and joint employer theories “concentrate on the degree of control an
entity has over the adverse employment decision on which the Title VII suit is based.”
Llampallas, 163 F.3d 1236, 1244–45 (11th Cir. 1998). In this case, the evidence reveals that
Army Fleet consulted L-3’s legal department on Klein’s termination to ensure that it
complied with Army Fleet’s obligations under the WARN Act. However, the final decision
to terminate Klein as part of the reduction in force was made by Olive, an Army Fleet
employee, and all of the other retaliatory acts of which Klein complains were carried about
by Army Fleet employees—not L-3. In sum, the evidence fails to show that L-3 exerted the
type of day-to-day control over Army Fleet such that the Court could find that labor
operations were centralized between the two.

See Clifford v. Patterson Companies, Inc.,

employees, published job vacancies for local organization, provided job descriptions and
performance review charts for local organization, and employee of national organization was
involved in termination meeting of local organization’s employee), with McKenzie, 834 F.2d at
933–43 (reversing district court’s granting of summary judgment on single employer theory when
evidence showed that both companies were founded and owned by the same family, one company
owned the majority of the other’s stock, both companies shared the same president, who also
controlled personnel management for both companies and issued payroll checks from the same
company, the companies advertised as “twins in service,” and the plaintiff worked for both
companies), and Thornton v. Mercantile Stores Co., Inc., 13 F. Supp. 2d 1282, 1291–92 (M.D. Ala.
1998) (denying summary judgment on single employer when parent company handled the whollyowned subsidiary’s banking, paid vendors supplying products to the subsidiary, retained control over
the subsidiary’s yearly operating budget, made all hiring, firing, transfer, and promotion decisions
for the subsidiary’s senior employees, maintained significant contact with the subsidiary’s human
resources managers and significant control over the subsidiary’s employment practices, distributed
a handbook to the subsidiary, provided centralized “risk management,” operated centralized
management information services for the subsidiary, managed all the subsidiary’s benefit programs,
provided extensive training for subsidiary employees, and most senior officials with the parent
company also held senior management positions with the subsidiary).
19

2009 WL 3852447, at *10 (N.D. Ill. Nov. 18, 2009) (finding that preparation of EEOC
position statement by parent company’s in-house counsel is not sufficient evidence to find
a joint employment relationship absent evidence that parent company controlled daily
activities of plaintiff or directed his work; all this showed was that parent company “provided
administrative and legal assistance” to its subsidiary).
Finally, while there is no dispute that Army Fleet is a wholly owned subsidiary of L-3,
and thus, there is common ownership between the two, the evidence does not reveal
common management or common financial control between L-3 and Army Fleet. “Cases
treating two separate corporate entities as a single employer have placed heavy emphasis on
the existence of common directors and officers.” Fike, 514 F. Supp. at 727 (citations
omitted). Here, there is no evidence that Army Fleet and L-3 shared directors, officers, or
other employees. There is also insufficient evidence of common financial control between
the two, as Army Fleet and L-3 kept separate financial books, separate accounting records,
and a separate payroll. Weighing all these factors together, Klein has failed to create a
genuine dispute as to whether L-3 and Army Fleet qualify as her “single employer.”
Klein has also failed to create a genuine dispute as to whether L-3 and Army Fleet
qualify as “joint employers” in this case. The Eleventh Circuit has held that the basis for
finding a joint employer relationship “is simply that one employer while contracting in good
faith with an otherwise independent company, has retained for itself sufficient control of the
terms and conditions of employment of employees who are employed by the other
employer.” Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1360 (11th Cir. 1994). In
20

other words, to be considered a joint employer, an entity must exercise sufficient control over
the terms and conditions of a plaintiff’s employment. Id. at 1360. Courts usually make such
a determination by analyzing: (1) the means and manner of the plaintiff’s work performance;
(2) the terms, conditions, or privileges of the plaintiff’s employment; and (3) the plaintiff’s
compensation. See Kaiser v. Trofholz Tech., Inc., 935 F. Supp. 2d 1286, 1293 (M.D. Ala.
2013) (citing Llampallas, 163 F.3d at 1245).
In this case, the evidence shows that Klein’s chain of command was always within
Army Fleet. She reported to Army Fleet employees, was supervised by Army Fleet
employees, was assigned work by Army Fleet employees, and was paid by Army Fleet. In
fact, Klein had contact with L-3 personnel “very rarely,” meeting with only three L-3
employees on a handful of occasions during her almost six years of employment there.
Olive, an Army Fleet employee, administered Klein’s performance reviews, recommended
her pay increases, and issued disciplinary actions. Although L-3’s legal department might
have been consulted regarding Klein’s termination to ensure that it complied with WARN
Act requirements, Olive made the final decision to terminate Klein as part of the reduction
in force. Based on this evidence, the Court cannot conclude that L-3 exercised sufficient
control over Klein to qualify as her “joint employer.”
Rather, in the Court’s opinion, the undisputed evidence supports the conclusion that
Army Fleet was Klein’s employer, not L-3. Because all of Klein’s claims in this case are
predicated on the existence of an employer-employee relationship, her claims against L-3
cannot survive as a matter of law. Summary judgment is, therefore, due to be GRANTED
21

to L-3 on all of Klein’s claims.
B.

Sex Discrimination and Outrage Claims
Counts Two and Five of Klein’s complaint assert claims against Army Fleet for sex

discrimination under Title VII and intentional infliction of emotional distress (otherwise
known as the tort of outrage) under Alabama law. In response to Defendants’ motion for
summary judgment, Klein concedes that there is insufficient evidence to support these
claims, and the Court agrees. Therefore, summary judgment is due to be GRANTED to
Army Fleet on Counts Two and Five of Klein’s complaint.

22

C.

Retaliation Claims
Counts Three and Four of Klein’s complaint assert retaliation claims against Army

Fleet. (Doc. #1.) First, Klein claims that Army Fleet subjected her to a hostile work
environment in retaliation for her complaints about discriminatory and harassing conduct
made unlawful by Title VII. Klein brings this claim under Title VII. Second, Klein claims
that Army Fleet retaliated against her for complaining about accounting irregularities in
violation of the False Claims Act (“FCA”). Both of these claims fail as a matter of law.
1.

Title VII

From Klein’s complaint and her response in opposition to summary judgment, it is
clear that her Title VII claim is not a run-of-the-mill retaliation claim, but rather is a
retaliatory hostile work environment claim. In Gowski v. Peake, the Eleventh Circuit
recognized a separate and distinct cause of action for retaliatory hostile work environment.
682 F.3d 1299, 1312 (11th Cir. 2012). To succeed on this claim, the Court must determine
whether a reasonable jury could find that Army Fleet subjected Klein to a hostile work
environment in retaliation for complaining about conduct made unlawful by Title VII and for
filing charges with the EEOC. To answer this question in the affirmative, a jury must be able
to conclude that the actions complained of were sufficiently severe or pervasive to alter the
terms and conditions of Klein’s employment. Id.
Klein points to essentially eight retaliatory acts in support of her claim:16 (1) the

16

Army Fleet notes in its brief in support of its motion for summary judgment that Klein
is also relying on her hearing inappropriate language in the workplace as a retaliatory act. (Doc.
23

elimination of her finance and accounting auditing duties in June 2009; (2) a failure to
receive work assignments beginning in June 2009; (3) her May 2010 merit pay increase,
which she believed was too small; (4) her performance evaluation based on the goals of a
Quality Auditor/Monitor instead of Senior Internal Auditor in June 2011, which was
ultimately adjusted upward; (5) advertising her position as vacant when she still held it; (6)
her reclassification from Senior Internal Auditor to Quality Auditor/Monitor in July 2011
when she was not qualified for the Quality Auditor/Monitor position; (7) her May 14, 2012
written counseling; and (8) her termination. However, Klein has failed to show how these
acts were objectively or subjectively so severe and pervasive that they created a retaliatory
hostile working environment.
The requirement that the harassment be “severe and pervasive” contains both an
objective and subject component. See id. Thus, to be actionable, the behavior must result
in both an environment that a reasonable person would find hostile or abusive and an
environment that the victim subjectively perceived to be abusive. Id. In evaluating the
objective severity of the harassment, the Court looks at the totality of the circumstances and
considers, among other things: “(1) the frequency of the conduct; (2) the severity of the
conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive
utterance; and (4) whether the conduct unreasonably interferes with the employee’s job

#20.) However, after reviewing Klein’s brief in opposition to summary judgment, it does not appear
that she is indeed relying on the use of such language to support her retaliatory hostile work
environment claim. (Doc. #28.)
24

performance.” Id. (internal quotations omitted).
First, the acts of which Klein complains were discrete acts that, alone, cannot form
the basis of a hostile work environment claim. Id. (citing Davis v. Coca-Cola Bottling Co.
Consol., 516 F.3d 955, 970 (11th Cir. 2008)). Still, even treating these acts as part of a
hostile work environment, Klein has failed to meet her prima facie burden as to her
retaliatory hostile work environment claim. In her opposition brief, Klein focuses the
entirety of her argument on the timeliness of certain alleged retaliatory acts and how they
should be considered as part of an ongoing retaliatory hostile work environment. Timeliness
aside,17 the Court cannot help but note that Klein spends no time arguing the merits of her
retaliatory hostile work environment claim or pointing the Court to specific evidence that
would create a triable issue as to whether the retaliatory acts of which she complains were
objectively and subjectively severe and pervasive such that she could meet her prima facie
burden. Still, even if she had, the Court is not persuaded, after reviewing the evidence and
drawing all inferences therefrom in Klein’s favor, that the retaliatory acts of which she
complains were so severe and pervasive to sustain a retaliatory hostile work environment
claim. Accordingly, summary judgment is GRANTED to Army Fleet on Klein’s Title VII
retaliatory hostile work environment claim

17

Because the Court finds that Klein’s Title VII retaliatory hostile work environment and
FCA retaliation claims fail as a matter of law, irrespective of any timeliness issues, it need not
discuss what retaliatory acts are or are not time-barred.
25

2.

FCA

Klein’s complaint also asserts a claim for retaliation for reporting accounting
irregularities in violation of § 3730(h) of the FCA, which is the “whistleblower” provision.
The burden shifting framework for FCA retaliation claims is similar to the Title VII
framework of McDonnell Douglas Corp. v. Green, except that the FCA has an additional
element: the employer must be covered by the FCA. See Mann v. Olsten Certified
Healthcare Corp., 49 F. Supp. 2d 1307, 1316–17 (M.D. Ala. 1999). Here, Army Fleet
concedes that it is covered by the FCA. Therefore, Klein’s FCA claim will be analyzed
under the same framework as a Title VII retaliation claim.
Here, even assuming, without deciding, that Klein has met her prima facie burden
(i.e., demonstrated that (1) she engaged in protected activity, (2) she suffered an adverse
employment action, and (3) there is an inference of causation between the protected activity
and the adverse action), her claim fails because she has not created a triable issue on whether
Army Fleet’s legitimate, non-discriminatory reason for her termination—a reduction in
force— was, in reality, a pretext for a retaliatory motive. See Combs v. Plantation Patterns,
106 F.3d 1519, 1528 (11th Cir. 1997); Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th
Cir. 2000). The only discussion of Klein’s FCA claim in her opposition brief is:
The False Claims Act similarly prohibits retaliation against someone who
makes a complaint of accounting irregularities both internally to AFS and
externally to the Office of Inspector General for the U.S. Army. As a
proximate result of her reporta [sic], she suffered damages and filed her
lawsuit within the three year limitations period of the statute.
(Doc. #28.) Klein makes no argument as to the merits of her claim and points the Court to
26

no specific evidence demonstrating that she met her prima facie burden or that she created
a triable issue as to whether Army Fleet’s articulated non-discriminatory reason for her
termination is merely a pretext for a retaliatory motive. In sum, the Court finds that the
evidence is not sufficient to create a triable issue as to Klein’s FCA claim, and, therefore,
summary judgment is GRANTED to Army Fleet on that claim.
D.

FMLA Claim
Count One of Klein’s complaint asserts a claim against Army Fleet for unlawful

discrimination and retaliation against Klein for “taking federally protected medical leave
under the FMLA and for refusing to restore her to her position and terminating [Klein] on
the day she returned from such leave.” (Doc. #1.) Nowhere in the complaint does Klein
attempt to assert an interference claim based on Army Fleet’s purported failure to comply
with FMLA notice provisions. (Doc. #1.) Indeed, Count One of the complaint does not
make a single reference to any of the FMLA’s notice provisions. (Doc. #1.) Nor does the
facts section of Klein’s complaint. (Doc. #1.) Rather, the sole factual allegation on which
Klein’s FMLA claim is based, as alleged in the complaint, is:
Effective May 31, 2012, the Plaintiff was approved for Family Medical Leave
because of a serious health condition. On the day that she returned to work
after FMLA leave, August 27, 2012, she was informed that her position would
be eliminated effective September 7, 2012 and that she would be terminated
at that time.

27

(Doc. #1, ¶ 18.)18
In response to summary judgment, Klein now raises for the first time an FMLA
interference claim based on Army Fleet’s failure to comply with certain FMLA notice
provisions. However, as Army Fleet correctly notes, such an interference claim has never
been pled and cannot be raised for the first time in response to its motion for summary
judgment. See Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir.
2006); Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (“At the
summary judgment stage, the proper procedure for plaintiffs to assert a new claim is to
amend the complaint in accordance with Fed. R. Civ. P. 15(a). A plaintiff may not amend
her complaint through argument in a brief opposing summary judgment.”); Edward v. Niles
Sales & Serv., Inc., 439 F. Supp. 2d 1202, 1224 (S.D. Fla. 2006) (refusing to allow the
plaintiff to assert new bases for his race discrimination claim when the new bases were raised
for the first time in response to a summary judgment motion). Klein’s summary judgment
opposition attempts to raise a new FMLA interference claim based on new allegations and
new facts, as opposed to merely additional ones, that are not alleged in her complaint. This
is a fundamental change in the nature of Klein’s FMLA claim that is impermissible at this
late stage in the litigation. See Hurlbert, 439 F.3d at 1296. “Rule 8(a)’s liberal pleading
18

Not only does Klein’s complaint fail to allege any facts or violations concerning FMLA
notice provisions, she also never mentions in her deposition that her FMLA interference claim is
based on her failure to receive certain FMLA notices. (Doc. #21-1.) Rather, Klein points to her
termination, surmising that she was never reinstated to her position following her return from a
medical leave of absence and that she would have been had she been notified of and taken statutorily
protected FMLA leave. (Doc. #21-1.)
28

standard is inapplicable once discovery has commenced, and . . . ‘[a]t the summary judgment
stage, the proper procedure for plaintiff[] to assert a new claim is to amend the complaint in
accordance with Fed. R. Civ. P. 15(a).’” Id. at 1296 (quoting Gilmour, 382 F.3d at 1315)
(alterations to original). Because Klein failed to do that in this case, the Court will not
consider her FMLA interference claim to the extent it is based on Army Fleet’s purported
failure to comply with the FMLA’s notice provisions.
That leaves the Court to analyze Klein’s FMLA claim as pled in the complaint. From
her brief in opposition to summary judgment, it appears that Klein is attempting to cast her
FMLA claim as one for both interference with, that is, denial, of her FMLA rights and
retaliation for exercising those rights. Regardless of the nomenclature attributed to this
claim, however, Klein has failed to meet her burden as to her FMLA claim, as the Court
explains below.
1.

Interference

Klein’s FMLA interference claim is premised on the argument that Army Fleet
interfered with her rights under the FMLA by failing to reinstatement her to her position
following her return from medical leave on August 27, 2012. To succeed on an FMLA
interference claim, Klein must demonstrate that “[s]he was denied a benefit to which [s]he
was entitled under the FMLA.” Martin v. Brevard Cnty. Pub. Schs., 543 F.3d 1261, 1266–67
(11th Cir. 2008) (per curium) (alterations to original). Klein claims that she has made this
showing because she was informed of her termination on the very same day she returned
from medical leave, thereby establishing that Army Fleet denied her the benefit of
29

reinstatement to which she was entitled.
First, this argument presumes that Klein exercised some right under the FMLA that
would entitle her to the protections the statute affords, which, in this case, is reinstatement.
The record is clear that Klein took 12 weeks of non-FMLA medical leave for her back
injury—the same amount of leave the FMLA provides—and that she drew short-term
disability payments during this time. Although a plaintiff need not expressly invoke the
FMLA, but rather is only required to give the employer enough information for it to realize
that she is requesting leave for a serious health condition, at least one district court has
recognized that a plaintiff cannot establish a triable issue on a FMLA interference claim
when the plaintiff never requested FMLA leave nor took FMLA leave. See Edwards v.
Dialysis Clinic, Inc., 423 F. Supp. 2d 789, 795 (S.D. Ohio 2006).
Second, even assuming that Klein has established a prima facie case of FMLA
interference in that she exercised a right under the FMLA and was not reinstated to her
position upon her return, her right to reinstatement under the statute is not absolute. See
O’Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1353–54 (11th Cir. 2000). “An
employee has no greater right to reinstatement or to other benefits and conditions of
employment than if the employee had been continuously employed during the FMLA leave
period.” 29 C.F.R. § 825.216(a). For example, “If an employee is laid off during the course
of taking FMLA leave . . . the employer’s responsibility to continue FMLA leave, maintain
group health plan benefits and restore the employee cease at the time the employee is laid off
. . . .” Id. In other words, “if an employer can show that it refused to reinstate an employee
30

for a reason unrelated to FMLA leave, the employer is not liable for failing to reinstate the
employee after the employee has taken FMLA leave.” Krutzig v. Pulte Home Corp., 602
F.3d 1231, 1235–36 (11th Cir. 2010). Here, Army Fleet terminated Klein as part of a
legitimate reduction in force. She was selected for termination as part of that reduction in
force based on her being the lowest performer in the Quality Department at the time
selections for the reduction in force were made, and Klein has not presented sufficient
evidence to challenge the legitimacy of that decision. Klein points to the fact that her low
performance score in 2011, on which her selection for termination was based, scored her
against the Quality Auditor/Monitor position when she, in fact, was still a Senior Internal
Auditor. However, while that might be correct, there is no dispute that Klein brought this
concern to Olive, who then adjusted her 2011 performance review score significantly
upward. Even after this adjustment, Klein still ranked as the lowest performer when Olive
evaluated his employees in the Quality Department for the reduction in force. In sum, the
undisputed evidence shows that Klein’s termination had absolutely nothing to do with her
taking medical leave, whether that leave was under the FMLA or not. See Schaaf v.
Smithkline Beecham Corp., 602 F.3d 1236, 1241 (11th Cir. 2010) (noting that crux of the
issue in an FMLA interference claim based on failure to reinstate is whether the employer
proved to a legal certainty that the plaintiff was not reinstated for reasons unrelated to her
FMLA leave, such that she would have not be reinstated even if she had not taken leave);
O’Connor, 200 F.3d at 1354 (recognizing that termination as part of reduction in force can
be a legitimate basis on which an employer can deny the right to FMLA reinstatement);
31

Ilhardt v. Sara Lee Corp., 118 F.3d 1151, 1157 (7th Cir. 1997) (holding that an employer
may terminate an employee on FMLA leave as part of a reduction in force with no obligation
to reinstate if the termination is unrelated to the FMLA leave). Accordingly, summary
judgment is due to be GRANTED to Army Fleet on Klein’s FMLA interference claim.
2.

Retaliation

Klein’s FMLA retaliation claim is premised on the argument that Klein was
terminated not as part of a legitimate reduction in force, but because she had exercised her
rights under the FMLA. To succeed on her FMLA retaliation claim, Klein must show that
(1) she engaged in statutorily protected conduct; (2) she suffered an adverse employment
action; and (3) there is a causal connection between the two.19 Krutzig, 602 F.3d at 1234.
Essentially, Klein must show that she suffered an adverse employment action that was
“‘motivated by an impermissible retaliatory or discriminatory animus.’” Schaaf, 602 F.3d at
1243 (quoting Strickland v. Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199, 1207
(11th Cir. 2001)). In other words, the relevant issue is “could a jury reasonably find from the

19

The Schaaf Court explained that, in the FMLA context, a “but-for” causation analysis was
not appropriate; rather, courts should apply a proximate cause analysis, which requires a plaintiff
to establish only that the protected activity and adverse action are not “wholly unrelated.” See
Schaaf, 602 F.3d at 1242–45. It is unclear whether this premise will hold true, at least with respect
to retaliation claims, in light of the Supreme Court’s recent ruling in University of Texas
Southwestern Med. Ctr. v. Nassar, 570 U.S. -- (2013), which held that a “but-for” causation analysis
is required in the context of Title VII retaliation claims. That being said, the Court is unaware of
any case law extending the holding of Nassar to FMLA retaliation claims, and, therefore, it will
continue to follow the proximate cause analysis. See Clark v. Jackson Hospital & Clinic, Inc., 2013
WL 5347450, at *5, n.3 (M.D. Ala. Sept. 23, 2013) (applying the “wholly unrelated”/proximate
cause analysis to an FMLA retaliation claim but recognizing the potential implications of Nassar
and “but for” causation on FMLA retaliation claims).
32

evidence presented at the summary judgment stage that [Klein] was fired because she [took]
FMLA leave?” Brungart v. BellSouth Tele., Inc., 231 F.3d 791, 798 (11th Cir. 2000).
As stated above, the Court finds plausible Army Fleet’s argument that Klein cannot
establish a prima facie retaliation claim because the undisputed evidence shows that she did
not request or take FMLA leave, and, therefore, she did not engage in statutorily protected
conduct under the FMLA. Instead, Klein took 12 weeks of non-FMLA leave for her back
injury. See Walker v. Elmore Cnty. Bd. of Educ., 379 F.3d 1249, 1251–53 (11th Cir. 2004)
(holding an employee who was ineligible for FMLA leave could not maintain a retaliation
claim because her request for leave was not protected by the FMLA); Edwards, 423 F. Supp.
2d at 795. As Army Fleet notes, it could not retaliate against Klein for taking FMLA leave
when she arguably did not engage in statutorily protected conduct.
That being said, and having to take the evidence in the light most favorable to Klein,
the Court will assume, without deciding, that Klein has established a prima facie case of
retaliation under the FMLA (i.e., that (1) she engaged in statutorily protected activity (she
took FMLA leave), (2) she suffered an adverse employment decision (she was terminated),
and (3) the decision was causally related to the protected activity (she was notified of her
termination the same day she returned from medical leave).20 Even then, Klein’s retaliation
20

“The general rule is that close temporal proximity between the employee’s protected
conduct and the adverse employment action is sufficient circumstantial evidence to create a genuine
issue of material fact of a causal connection.” See Brungart, 231 F.3d at 799; Clark, 2013 WL
5347450 at *5 (“The burden of causation can be met by showing close temporal proximity between
the statutorily protected activity and the adverse employment action. Thus, the Hospital’s refusal
to return Plaintiff to the PCU immediately upon her return from leave and her termination a month
later—regardless of the Hospital’s motives— suffice to establish the causal connection for the
33

claim still fails, as she has failed to raise a triable issue as to whether her termination was
“motivated by an impermissible retaliatory or discriminatory animus.” Schaaf, 602 F.3d at
1243. Army Fleet articulated a legitimate, non-discriminatory reason for Klein’s termination
unrelated to her leave—a reduction in force—and, as discussed above, Klein has presented
insufficient evidence demonstrating that this reason is nothing more than a pretext for a
retaliatory motive. See Martin, 543 F.3d at 1268 (applying McDonnell Douglas burdenshifting framework to FMLA retaliation claims). Indeed, Klein did not present any evidence
suggesting that Army Fleet was motivated by a discriminatory animus, nor did she present
sufficient evidence showing that Army Fleet’s reasons for selecting her for the reduction in
force (i.e., Klein being the lowest performer in the Quality Department) were not true.
Instead, Klein argues that the 2011 performance evaluation on which Olive relied in making
his selection for the reduction in force was not fair or an accurate representation of her
abilities, but an employee’s subjective assessment of her own performance is not sufficient
to create a triable issue as to pretext. See, e.g., Chapman, 229 F.3d at 1030. The issue in the
pretext analysis is not whether Army Fleet’s conclusion was correct, but whether it was
honest, and Klein has presented no evidence to refute that. Therefore, even when drawing
all inferences in favor of Klein, the Court concludes that, based on the undisputed evidence,
a reasonable jury could not conclude that Klein was included in Army Fleet’s reduction in
force in retaliation for taking medical leave or otherwise exercising her rights under the

purposes of Plaintiff’s prima facie case.”).
34

FMLA. Accordingly, summary judgment is GRANTED to Army Fleet on Klein’s FMLA
retaliation claim.
V. CONCLUSION
Based upon the foregoing, it is hereby ORDERED that Defendants’ Motion for
Summary Judgment (Doc. #19) is GRANTED, and Klein’s claims against L-3 and Army
Fleet are hereby DISMISSED WITH PREJUDICE. It is further ORDERED that the trial
scheduled in this case is CANCELLED.
A separate final judgment is forthcoming.
DONE this the 1st day of November, 2013.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE

35