Norris v. GKN Westland Aerospace, Inc.

Filing 51

OPINION AND ORDER that defendant GKN Westland Aerospace, Inc.'s 26 Motion for Summary Judgment is denied as further set out in the opinion and order. Signed by Honorable Judge Myron H. Thompson on 2/5/2013. (Attachments: # 1 Civil Appeals Checklist)(dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
JEROME P. NORRIS,
Plaintiff,
v.
GKN WESTLAND AEROSPACE,
INC.,
Defendant.

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CIVIL ACTION NO.
2:11cv861-MHT
(WO)

OPINION AND ORDER
Plaintiff Jerome Norris brought this lawsuit against
his former employer, defendant GKN Westland Aerospace,
Inc., for violations of the Americans with Disabilities
Act of 1990 (ADA), as amended (42 U.S.C. §§ 12101 et
seq.) and the Family and Medical Leave Act of 1993 (FMLA)
(29 U.S.C. § 2611 et seq.).

Jurisdiction is proper under

28 U.S.C. § 1331 (federal question), 42 U.S.C. § 12117
(ADA), and 29 U.S.C. § 2617 (FMLA).
The matter is before the court on Westland’s motion
for

summary

judgment.

For

reasons

discussed, the motion will be denied.

that

will

be

I. BACKGROUND
Norris worked at Westland’s manufacturing facility in
Tallassee, Alabama.

Approximately 1,000 employees work

at this facility, manufacturing and assembling components
used

in

aircraft

helicopters.

such

as

Blackhawk

and

Seahawk

Norris assembled cargo doors for these

helicopters; he also worked in small assembly and metal
panels and at one time made German swivel doors.
Norris began working for Westland in March 2008.

He

was hired through and initially worked under the auspices
of a temporary agency.

But in July 2008 he took a

regular position with Westland.

For two years he worked

the first shift, from 5:00 a.m. to 5:30 p.m., five days
a week; in July 2010, however, Westland transferred him
to third shift, and his hours were then 10:00 p.m. to
6:00 a.m., or 9:00 p.m. to 8:00 or 9:00 a.m.; and, on
December 8, 2010, several months after his shift change,
he was terminated.

2

In October 2009, Norris was diagnosed with Diabetes
Type II and high blood pressure.

As a result of his

diabetes he experiences foot swelling and increased urine
production.

He also suffers from neck, back, and foot

pain, making it difficult for him to stand for extended
periods of time.

Managing his diabetes requires that he

monitor his blood-sugar level two to three times a day
and follow a routine work, exercise, and nutrition plan.
When Norris received his diabetes diagnosis, he spoke
with

then-supervisor

condition.

Richard

Hill

regarding

his

He sought several accommodations, including

the ability to take frequent trips to the restroom as
needed and permission to manage his blood sugar with
breaks

for

food

accommodations
exercised

and

and

them.

drink.

did

Norris

Hill

granted

these
Norris

not

interfere

when

also

requested

and

received

permission to take intermittent FMLA leave beginning
October 2009.

He took three days of such leave in 2009.

3

Unfortunately, Hill was the first and last supervisor
to handle Norris’s medical problems without incident.
According

to

Norris,

his

next

supervisor,

Cliff

McGuiness, commented on his frequent need to use the
restroom

and

teased

him

in

front

of

other

workers.

Following him into the break room, McGuiness would quip:
“Gee

Preacher,

together, man.

...

you

going

to

get

that

medicine

You’[r]e going to have to get that

diabetes under control.
break room too much.”

I - I can’t have you in this

Norris Dep. (Doc. No. 28-1) at 30,

115:22-116:4.
When Jeff Henderson replaced McGuiness things went
from bad to worse for Norris.

Norris reports that

Henderson would follow him to the restroom and break room
and confront him about how long he had been gone after he
returned to the floor.

Fed up, Norris took Henderson to

Human Resources (HR) to report the conduct.
Production Manager Donna Hornsby intercepted Norris
and Henderson on their way to HR.

4

She led them into an

HR office where no HR personnel were present.

There,

Norris informed Hornsby of his belief that Henderson was
“harassing [him] because of [his] diabetic conditions.”
Id. at 28, 105:13-15.

Less than two weeks later, Hornsby

transferred Norris from the first to third shift.
In the spring of 2010, Norris had managed to get his
diabetes under control and did not need any FMLA leave.
But from June 29, 2010, through December 2010 he took 27
days of FMLA leave.

Norris attributes this dramatic

increase in medical leave to the shift transfer, which
required him to work through the night.

The change at

work disrupted the routine he had developed to manage his
diabetes and brought on a fresh wave of symptoms.
FMLA leave is unpaid, it also affected his pay.

As
And

since Westland would not allow Norris to work weekends
unless he had worked 40 hours during the week, his need
for medical leave further undercut his income.1

1.
Westland asks that the court not consider
Norris’s contention that it prohibited him from working
weekend overtime when he was out on FMLA leave during the
(continued...)

5

The third-shift transfer also brought Norris under
new

supervision.

Gaddis,

would

The

comment

third-shift
when

Norris

supervisor,
took

FMLA

Steve
leave,

saying, “Rev., what you trying to do, get disability.”
Id. at 32, 121:18-19.

He “picked at” Norris about his

feet swelling, id., and, on at least two occasions,
Gaddis told him he was taking too much FMLA leave and
advised him that HR had noticed.

In November 2010,

Gaddis warned him: “Rev., you’re going to have to watch

(...continued)

week. It argues that, as he did not identify this denial
of overtime as retaliatory or discriminatory in his
complaint, he cannot now allege it here.
The court,
however, understands Norris to introduce evidence of this
practice as but one way in which the third shift transfer
was a negative employment action.
The court will
consider it for this purpose. Westland also objects that
the statement in Norris’s declaration that he was denied
weekend overtime should not be relied upon, as it is
“sham testimony.” Mot. Strike (Doc. No. 37) at 5-6. It
argues that, because he did not identify denial of
overtime when asked what Westland did to discriminate or
retaliate against him, he cannot allege it in a
declaration subsequent to a deposition and thereby create
a genuine dispute. Again, however, the court does not
understand Norris to claim that denial of overtime was a
separate act of retaliation or discrimination. As such,
the evidence is proper.
6

your FMLA.
17.

They talking up in HR.”

Id. at 32, 122:12-

When asked what he meant by that, Gaddis told

Norris: “Just try to be here as much as you can.”

Id.

Occasionally Norris worked through the end of the
third shift, into the first.

On those occasions he

worked under supervisor Blake Allen.

Allen was not

receptive to Norris’s need for frequent restroom and
break

room

visits.

Although

aware

that

Norris

was

diabetic, Allen told him he “need[ed] to stay out of the
break room.”

Id. at 33, 126:23-127:1.

Norris received warnings from upper management as
well.

One day in late November 2010, when he was leaving

work after the end of a shift, Hornsby called him over.
She said: “I’m going to have to have somebody around here
that can work when I say they work, ... or they going to
hit the door.”

Id. at 49, 191:9-12.

Norris replied that

he was going home at the end of his shift, as his ankles
and feet were swollen.

According to him, Hornsby did not

7

appear satisfied by this response.

She waved him out the

door.
On December 3, 2010, while out on FMLA leave, he was
suspended.

On December 8, 2010, HR called Norris and

fired him.

The official reason given was poor-quality

workmanship.

II.

SUMMARY-JUDGMENT STANDARD

“A party may move for summary judgment, identifying
each claim or defense--or the part of each claim or
defense--on which summary judgment is sought.

The court

shall grant summary judgment 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).

The

court

must

view

the

admissible evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in
favor of that party.

Matsushita Elec. Indus. Co. Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).

8

III.

DISCUSSION

Westland moves for summary judgment on Norris’s ADA
disparate-treatment and retaliation claims and his FMLA
interference and retaliation claims.

The court will

address the merits of each claim in turn.

A.

ADA Disparate-Treatment Claim
The

ADA

makes

it

unlawful

for

an

employer

to

discriminate on the basis of disability in regards to the
“terms,

conditions,

including

and

“discharge

§ 12112(a).

privileges

of

of

employment,”

employees.”

42

U.S.C.

Employees may claim unlawful discrimination

under the ADA by showing either that the employer’s
facially

neutral

conduct

had

a

disparate

impact

on

members of a protected class (disparate impact) or that
the employer treated certain employees worse than others
because

they

treatment).

possessed

a

protected

trait

(disparate

Raytheon Co. v. Hernandez, 540 U.S. 44, 52-

53 (2003).

9

Norris’s

ADA

claim

alleges

disparate

treatment.

Liability thus “depends on whether the protected trait...
actually
(omission

motivated
in

the

original)

employer’s
(quoting

Biggins, 507 U.S. 604, 610 (1993)).

decision.”

Hazen

Paper

Id.
Co.

v.

Norris can make this

showing with circumstantial evidence.

A circumstantial

case of discrimination may be made using the burdenshifting framework outlined in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04 (1973), or by “present[ing]
circumstantial evidence that creates a triable issue
concerning

the

employer’s

discriminatory

intent.”

Hamilton v. Southland Christian School, Inc., 680 F.3d
1316, 1320 (11th Cir. 2012) (quoting Smith v. LockheedMartin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)).2

“A

2. Neither Smith nor Hamilton involved a claim of
disability discrimination under the ADA.
Smith was a
Title VII race-based discrimination case and Hamilton
sex-based. However, the test for discriminatory intent
is the same across these contexts.
Indeed, courts in
this circuit have understood Smith’s logic to apply to
ADA claims.
See Bruce v. Sam’s East, Inc., No.
4:11CV636, 2012 WL 6733034, at *3 (N.D. Fla. Dec. 28,
2012) (Hinkle, J.) (assuming, without comment, that an
(continued...)

10

triable issue of fact exists if the record, viewed in the
light most favorable to the plaintiff, presents enough
circumstantial evidence to raise a reasonable inference
of intentional discrimination.”

Id.

Under the McDonnell Douglas framework, the plaintiff
first must make out a prima-facie case of discriminatory
treatment.

Cleveland v. Home Shopping Network, Inc., 369

F.3d 1189, 1193 (11th Cir. 2004).

A prima-facie case of

discriminatory treatment under the ADA requires a showing
that (1) the plaintiff has a disability, (2) is otherwise
qualified

to

do

the

job,

and

(3)

was

unlawfully

discriminated against because of his disability.

42

U.S.C. § 12132; see Cleveland, 369 F.3d at 1193.
Once the plaintiff establishes his prima-facie case,
the burden shifts to the defendant employer to offer
evidence that the contested action “was taken for some

(...continued)

employee need not proceed under McDonnell Douglas and may
“present other evidence from which a reasonable
factfinder could infer prohibited discrimination or
retaliation” and citing Smith, 644 F.3d at 1328).
11

legitimate, non-discriminatory reason.”

Smith, 644 F.3d

at 1325 (quoting EEOC v. Joe’s Stone Crabs, Inc., 296
F.3d 1265, 1272 (11th Cir. 2002)).

If the defendant

satisfies its burden of production, the burden shifts
back to the plaintiff, who must then produce evidence to
reveal the defendant’s stated rationale as “a pretext for
unlawful

discrimination.”

Id.

at

1326.

Since

the

plaintiff bears the ultimate burden of persuasion, “if a
jury reasonably could infer from the evidence presented
that

the

employer’s

legitimate

justification

is

pretextual, the question becomes whether the evidence,
considered in the light most favorable to the plaintiff,
yields the reasonable inference that the employer engaged
in the alleged discrimination.”

Id.

If so, summary

judgment must be denied and the case put to a jury.
Westland’s summary-judgment motion is based largely
on Norris’s perceived inability to satisfy the McDonnell
Douglas

requirements

“establishing

the

for

a

elements

12

prima-facie
of

the

case.

McDonnell

But

Douglas

framework is not... the sine qua non for a plaintiff to
survive

a

summary

judgment

motion

in

an

employment

Smith, 644 F.3d at 1328 (quoting

discrimination case.”

Silverman v. Bd. of Educ., 637 F.3d 729, 734 (7th Cir.
2011)).

Rather,

“the

plaintiff

will

always

survive

summary judgment if he presents.... ‘a convincing mosaic
of circumstantial evidence.’”

Id.; see also Chapter 7

Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1256 (11th
Cir. 2012) (finding enough circumstantial evidence of
pregnancy discrimination for plaintiff to survive summary
judgment without McConnell Douglas analysis); Hamilton,
680 F.3d at 1320 (same).
Norris

alleges

that

Westland

employment

actions

against

him

took
on

disability: transfer and termination.
enough

circumstantial

evidence

of

account

negative
of

his

He has put forth
discrimination

survive summary judgment on both claims.

13

two

to

1.

Transfer

Westland transferred Norris to the third shift on
July 20, 2010.

The transfer came less than two weeks

after he told Hornsby that his supervisor harassed him
when he took medically necessary work breaks.

Hornsby

herself effected his transfer to third shift.

Both the

timing of this transfer and the fact that Hornsby was the
decisionmaker

are

circumstantial

evidence

of

discriminatory intent.
Norris also points out that he was not the least
senior employee in his department and yet was picked for
transfer.

Although Westland contests this fact, Norris

has put forth enough evidence to put the question to a
jury.

In his declaration, Norris states that employee

Larry Spivey was hired after him and worked as a cargodoor

builder,

yet

was

not

transferred.

Westland’s

personnel records confirm that Spivey was hired after
Norris, as they show a hire date for Spivey of July 2009.
Pers. Rec. (Doc. No. 31-21) at 3.

14

Norris had been

working for Westland for over a year by the time Spivey
was hired.
Westland

contends

that,

because

employee

Winston

Bedgood was transferred at the same time as Norris and
because Bedgood is not disabled, the transfer decision
“affect[ed] employees both inside and outside a protected
class” and is therefore “non-discriminatory per se.”
Def.

Br.

assertion

(Doc.
nor

No.
the

withhold scrutiny.

27)
case

at
law

19.

Neither

cited

in

Westland’s

support

of

it

This is not a case where “every

single employee ... faces the same change in the terms
and conditions of his employment.”

Id. (quoting Ginger

v. District of Columbia, 477 F. Supp. 2d 41, 51 (D.D.C.
2007) (Sullivan, J.)).

Hornsby testified that 70 % of

Westland’s employees work the first shift and only 10 %
work

the

third

shift.

She

also

testified

that

no

employees were transferred unless they requested transfer
or had the least seniority.

Thus, while all employees

were subject to transfer, only a small fraction were in

15

fact transferred and Westland had definite criteria in
place

to

guide

its

transfer

decisions.

Norris

has

pointed to evidence that could lead a reasonable jury to
conclude Westland departed from its standard practice
regarding shift transfers when it transferred him, and
that it did so because of his disability.
Norris has also offered evidence that Westland’s
“legitimate, non-discriminatory reason” for transferring
him is mere pretext.

Smith, 644 F.3d at 1325 (quoting

Joe’s Stone Crabs, 296 F.3d at 1272).
that

she

made

the

transfer

because

Hornsby stated
she

needed

more

manpower on the third shift, and that she chose Norris
because he had the least seniority.

As discussed, Norris

has called into question whether he was actually the
least senior employee in his department at the time of
the transfer.

“Uneven application of criteria is strong

evidence that the criteria were never in fact employed...
and were used by the employer as merely a pretext for
discrimination.”

Thompkins v. Morris Brown College, 752

16

F.2d

558,

n.16

(11th

Cir.

1985)

(quoting

Sims

v.

Montgomery County Com’n, 544 F. Supp. 420, 427 (M.D. Ala.
1982) (Thompson, J.)).

Furthermore, although Norris was

fired just five months after the transfer, Westland left
his

position

unmanned

following

his

termination.

Norris’s co-worker, Traywick Buckhannon, testified that
no one else was moved to third shift to replace Norris.
He

also

testified

termination

that

Westland

two

months

discontinued

after
its

Norris’s

third-shift

assembly operation altogether. This undermines Hornsby’s
assertion that the transfer was needed for allocation of
manpower.

See

McDonnell

Douglas,

411

U.S.

at

802

(finding plaintiff raised inference of discrimination by
showing employer left position unfilled after passing
over plaintiff’s application).

A reasonable jury could

infer that the need to staff third shift was overblown
and that Hornsby made the transfer to punish Norris for
taking medically necessary breaks.

17

Because

the

court

finds

Norris

has

put

forth

a

triable case that his disability motivated his shift
transfer,

summary

judgment

is

inappropriate

on

this

claim.

2.

Termination

As for Norris’s claim that his disability motivated
his termination, Westland argues that summary judgment is
due because there is no similarly situated employee for
comparison.
for

a

Westland also contends that it fired Norris

legitimate,

non-discriminatory

reason:

poor

workmanship.
To support his claim that Westland terminated him
because he is disabled, Norris compares himself to nondisabled

coworkers

who

also

workmanship but were not fired.

exhibited

poor-quality

The court agrees with

Westland that Norris has not offered sufficient evidence
for the court to evaluate whether he and his comparators
are similarly situated in “all relevant respects,” as

18

required

under

the

McDonnell

Douglas

framework.

Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
But “failure to produce a comparator does not necessarily
doom the plaintiff’s case.”

Smith, 644 F.3d at 1328.

Norris’s circumstantial case of discrimination is
similar to the facts in Smith.

644 F.3d at 1341.

That

case involved a white employee’s claim that his employer
fired him because of his race in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq.
sent

racially

employer’s
employees
treatment.

The employee showed that, although he
offensive

“zero
who

emails

tolerance

sent

similar

in

violation

policy,”
emails

Smith, F.3d at 1327.

of

his

African-American
received

lighter

He also demonstrated

that his termination was part of a larger discriminatory
pattern and that his employer had an incentive to subject
its white employees to a stricter code of conduct than
its

African-American

employees.

Id.

at

1344.

The

Eleventh Circuit agreed with the district court that the

19

employee did not make a prima-facie case under McDonnell
Douglas,

because

he

failed

to

identify

an

African-

American comparator, id. at 1326-27; the appellate court
agreed he could not identify a comparator because he was
a supervisor and therefore subject to a stricter code of
conduct

than

the

African-American

employees who sent similar emails.

Id.

non-supervisor
Nonetheless, it

found the employee “[did] not need a black supervisor
comparator”

as

he

had

made

discrimination
multiple

too,

has

without

warnings

from

made
a

triable

case

of

case

of

Id. at 1327.

discrimination without one.
Norris,

a

a

triable

comparator.

his

supervisors

He
that

received
he

taking medically necessary breaks and medical leave.

stop
His

third-shift supervisor, Gaddis, commented it seemed he
was trying to get disability and warned him twice about
taking too much medical leave because “they talking up in
HR.”

Norris Depo. (Doc. No. 28-1) at 32, 122:12-19.

Allen, his supervisor when he worked overtime, repeatedly

20

told him he took too many breaks and that he “needed[ed]
to stay out of the break room.”
127:1).

These

direct

Id. at 33, 126:22-

supervisors

all

reported

to

Hornsby, who herself warned him she needed to “have
somebody around here that can work when I say they work,
or ... they going to hit the door.”

Id. at 49, 191:5-12.3

Norris has also introduced evidence that these comments
were part of a larger pattern of harassment on the part
of his supervisors at Westland, who, with the exception
of Hill, all indicated their dissatisfaction with the
fact that his diabetes management required him to take
breaks from the assembly floor.
Like the Smith plaintiff, Norris has shown evidence
that

his

employer

had

an

incentive

to

discriminate

3. Gaddis, Allen, and Hornsby all participated in
the decision to terminate Norris. Westland states that
Hornsby was not a decisionmaker because she was on leave
caring for her mother when Norris was fired.
But she
admitted in deposition testimony that she was consulted
by telephone about the termination. And though Allen’s
name is not on the termination letter, he met with other
supervisors about firing Norris and was on the conference
call that communicated the decision to Norris.
21

against him.

Though he had previously taken minimal

medical leave, in the five months leading up to his
termination he required 27 days off work for medical
reasons.

In fact, Norris was on medical leave when

Westland suspended him on December 3.

The timing of

Norris’s termination so soon after this spike in medical
leave,

together

supervisors,

with

would

the

allow

a

pointed

comments

reasonable

jury

of
to

his
infer

discrimination.
Westland responds to this showing by painting these
admonitions from supervisors as “stray remarks” nonprobative of discriminatory intent.

It cites Scott v.

Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1227-28
(11th Cir. 2002).
In

Scott,

the

Eleventh

Circuit

held

that

a

discriminatory statement made about an employee two and
a half years before the employee’s termination that did
not

“directly

termination”

relate[]

to

the

subject

of

[his]

was not direct evidence of discriminatory

22

intent.

Id. at 1228.

remote

statement

It did consider this temporally

as

circumstantial

evidence

of

discrimination, but required some additional evidence
before concluding that the employer’s stated reason for
the action was a pretext for discrimination.

Id. at

1229-30.
The

remarks

Norris

cites

as

evidence

of

his

employer’s discriminatory intent in firing him are more
probative

than

the

comment

in

Norris’s

Scott.

supervisors made the contested comments in the days,
weeks, and months before his termination.

Two of the

more explicit warnings, courtesy of Gaddis and Hornsby,
came at the tail end of November, 2010, right before
Norris’s

December

termination.

3

suspension

and

December

8

These remarks also directly touch on the

subject of Norris’s termination, as they invoked the
threat of HR action and “hit[ting] the door.”
Furthermore,

Norris

has

pointed

to

additional

evidence that Westland’s non-discriminatory basis for his

23

termination--poor-quality workmanship--was a pretext. He
shows

that

other

employees

also

exhibited

workmanship but were not terminated.

sub-par

None of these

employees appears similarly situated in “all relevant
respects,”

as

required

a

comparison

Nonetheless,

under
of

McDonnell

several

of

Douglas.

these

other

employees with Norris is further evidence that Westland
treated his errors more seriously than it did those of
its non-disabled employees.
In meting out employee discipline, Westland considers
“[a]n associate’s past record, length of service, and the
circumstances surrounding any specific incident.”
Assoc.

Info.

Guide

(Doc.

No.

28-2)

at

46.

GKN

Norris

compares himself to Michael Bentley, a current employee
who was hired at the same time as him.
material

deficiencies

(MDRs)

were

Nine reports of

issued

for

parts

Bentley worked on, and five MDRs were issued for parts
Norris worked on.4

4.

The court agrees Bentley and Norris

One of Norris’s MDRs was not entered until three
(continued...)

24

are similarly situated in terms of past record and length
of service.
However, Westland’s discipline policy also considers
the “circumstances surrounding any specific incident.”
Id.

The specific incidents for which Westland claims it

terminated

Norris

are

explained

in

a

letter

dated

December 8, 2010.
The letter begins by noting that Norris received a
written notice for poor-quality workmanship on August 10,
2010.

The written notice to which this refers in turn

sets out three workmanship issues.
are

described

repaired.

as

“hand

backs,”

Two of those issues
meaning

they

can

be

The third, a “potential scrapped part,” is

more serious.

The written warning states that “Holes

(...continued)

months after he was terminated. Pl. Ex. (Doc. No. 35-3)
at 24. As Westland does not appear to have been aware of
this material deficiency at the time it terminated him,
it is irrelevant to Westland’s motive to fire him.
Moreover, though a spreadsheet created by Westland shows
this deficient part was scrapped, Pl. Ex. (Doc. No. 357), the actual MDR reads: “Majority of door assy [sic]
was able to be salvaged... was issue adjusted back into
stock.” Pl. Ex. (Doc. No. 35-3) at 24.
25

were not drilled in the part while it was in the fixture
resulting in shy edge distance – cost potential $20,500.”
Written Notice (Doc. No. 28-2) at 96.
termination

letter

then

The December 8

identifies

two

further

workmanship issues: a mis-drilled cargo door and a misdrilled “German Swivel Door,” each with a cost-potential
in the tens of thousands.
While Bentley is an appropriate comparator as to
length of service and past record, Norris has not shown
a basis for comparing the circumstances outlined in his
termination letter to any of Bentley’s errors.
He

has,

however,

introduced

evidence

that

other

operators made similar errors but were not written up for
them.
two

Tony Scott, Norris’s first supervisor, states that

other

worked

on

remembered

employees,
German
that

Chris

Swivel
between

Messer

doors
40

and

and

with
50

According to Scott,

26

Willis,

Norris.

Scott

such

returned to Westland from the customer.
was written up.

Tommy

doors

were

Yet Norris alone

“Messer and Willis

made the same or similar errors and were not written up
for the mistakes they made.”

Scott Decl. (Doc. No. 35-2)

at ¶ 9.5
Indeed,

Hornsby

testified

that

to

her

knowledge

Westland has yet to produce successfully a single German
Swivel door.

Norris testified that he did not want to

work on the German Swivel doors because he did not have
good

parts

communicated

to

build

this

to

the
his

doors

with

supervisors.

and

that

he

Furthermore,

Norris last worked on the German Swivel doors in April
5. Westland objects to this statement and others in
Scott’s declaration as lacking in personal knowledge,
conclusory, and based on subjective belief. Mot. Strike
(Doc. No. 37) at 6-7.
Examination of the declaration
shows that these objections are without merit.
Scott
avers to personal knowledge of all facts in his
declaration “unless otherwise stated.” Scott Decl. (Doc.
No. 35-2) at ¶ 1.
He also provides a basis for his
knowledge, as he attests to having worked for Westland
for 26 years until he was laid off in July 2012. While
he did not directly supervise Norris during the events in
question, he worked in a supervisory capacity during the
relevant time period.
On motion for summary judgment
courts consider all evidence “which can be reduced to an
admissible form.” Rowell v. BellSouth Corp., 433 F.3d
794, 800 (11th Cir. 2005). Scott’s statements meet this
minimum threshold and their consideration is therefore
appropriate.
27

2010.

While Westland contends that it did not discover

this workmanship error until December 2010, a reasonable
jury

could

Westland

equally

went

back

infer

from

over

this

Norris’s

long
work

delay
to

that

provide

justification for its decision.
As additional evidence that Norris’s write-ups were
pretextual, the court notes that Bentley received nine
MDRs, including two for scrapped parts, yet his personnel
file does not reveal a single write-up.

Norris, on the

other hand, was written up for two “hand backs” that did
not even result in MDRs.
Scott explains that Westland supervisors exercised
significant
errors.

discretion

in

writing

up

employees

for

According to him, there were “situations where

operators would make mistakes and not get written up and
other instances where operators would make the same or
similar mistakes and would be written up.”

Id. at ¶ 7.

As to the first “hand back” listed on Norris’s August 10
write-up, Scott states that “in [his] experience at GKN

28

operators got hand backs frequently for these and other
similar issues and were not written up.”

Id. at ¶ 8.

An employee may rebut his employer’s legitimate, nondiscriminatory reason for taking a contested action by
revealing

“such

weaknesses,

implausibilities,

inconsistencies, incoherencies, or contradictions in the
employer’s proferred legitimate reasons for its action
that a reasonable factfinder could find them unworthy of
credence.”

Combs v. Plantation Patterns, 106 F.3d 1519,

1538 (11th Cir. 1997) (quoting Sheridan v. E.I. DuPont De
Numours & Co., 100 F.3d 1061, 1072 (3d Cir. 1996) (en
banc)); see also Cleveland v. Home Shopping Network,
Inc., 369 F.3d 1189, 1194-95 (11th Cir. 2004) (“once [the
employer’s] credibility was damaged, a rational jury
could infer that he did not fire [the defendant] because
of [the legitimate reason], but rather because of her
disability.”). Norris has introduced evidence from which
a

reasonable

jury

could

conclude

that

Westland’s

explanation of poor-quality workmanship was drummed up or

29

contrived.

Summary judgment is therefore unavailable on

this claim.

B.

ADA Retaliation Claim
The ADA’s retaliation provision makes it unlawful to

discriminate against any person who “opposed any act or
practice

made

§ 12203(a).

unlawful”

by

the

ADA.

42

U.S.C.

“Acts or practices made unlawful” by the ADA

include “coerc[ing], intimidat[ing], threaten[ing], or
interfer[ing] with any individual in the exercise or
enjoyment of... any right granted or protected by this
chapter.”

42 U.S.C. § 12203(b).

Norris claims Westland

retaliated against him when it transferred him to the
third shift; he alleges that the transfer was punishment
for complaining about Henderson’s harassment and that the
harassment interfered with his exercise or enjoyment of
the reasonable accommodations Westland had made for his
diabetes.

30

To establish a prima-facie case of retaliation under
the ADA, Norris must show: (1) he engaged in protected
activity; (2) he suffered an adverse employment action;
and (3) there is a causal link between the protected
activity and the adverse action.

Standard v. A.B.E.L.

Services, Inc., 161 F.3d 1318, 1328 (11th Cir. 1998).

If

he succeeds in making a prima-facie case, then Westland
must offer a legitimate, non-retaliatory reason why it
took the contested employment action.

Stewart v. Happy

Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th
Cir. 1997).

The burden then shifts to Norris to offer

evidence from which a reasonable jury could infer that
the employer’s explanation is but “a pretextual ruse
designed to mask retaliation.”
Westland

contends

summary

Id.
judgment

is

warranted

because Norris has not established the third element of
his prima-facie case: a causal link between the transfer
and protected activity.

In order to meet this hurdle,

Norris need only establish that “the protected activity

31

and

the

adverse

action

were

not

wholly

unrelated.”

Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th
Cir.

1993).

introduced

Just
enough

as

this

court

circumstantial

has

found

evidence

Norris

that

the

transfer was discriminatory, it also finds that he has
made a triable case of retaliatory intent.

A reasonable

jury could use the same evidence to infer that Hornsby’s
motive in transferring Norris to a less desirable shift
was to punish him for speaking out about Henderson’s
harassment.
Westland

also

argues

that

summary

judgment

is

inappropriate because it has offered a non-retaliatory
reason for the transfer which Norris has failed to rebut.
It reiterates its position that it transferred Norris to
allocate

manpower

legitimate,
already

to

a

later

non-retaliatory

concluded,

however,

shift.

purpose.
that

This
The

Norris

is

court

a
has

introduced

evidence showing he was not the least senior employee in
his department when he was forcibly transferred and that

32

the need for more manpower on third shift may have been
exaggerated or false.
Norris points to evidence that would justify a jury
finding Westland’s proffered explanation a pretext for
retaliation.

Summary

judgment

is

therefore

not

appropriate on this claim.

C.

FMLA Violations
The

FMLA

grants

eligible

employees

a

general

entitlement to 12 workweeks of medical leave a year.
U.S.C. § 2612(a)(1)(D).
be

restored

“by

the

29

It also guarantees the right to
employer

to

the

position

of

employment held by the employee when the [medical] leave
commenced” or to a position equal to it.
§ 2614(a)(1).

29 U.S.C.

Two types of claims are available to

plaintiffs seeking to vindicate their rights under the
FMLA:

interference

claims

and

retaliation

claims.

Strickland v. Water Works and Sewer Bd. of City of
Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001).

33

In this case, Norris alleges both an interference and
a retaliation claim, and Westland seeks summary judgment
on both.

1.

FMLA Interference Claim

In an interference claim, an employee “asserts that
his employer denied or otherwise interfered with his
substantive

rights”

under

the

FMLA.

See

§ 2615(a)(1); Strickland, 239 F.3d at 1206.

29

U.S.C.

The employee

“need only demonstrate that he was entitled to but denied
the right.”

Id. at 1208.

treatment

retaliation

employer

or

intended

to

Unlike an ADA disparateclaim,

interfere

whether
with

its

or

not

the

employee’s

substantive rights is not at issue; id., “the employer’s
motives are irrelevant.”

Id.

Here, Norris has raised what is in essence a claim
that Westland interfered with his right to have his job
restored.

He testified that, on December 3, 2010, he

“was on FMLA.”

Norris Depo. (Doc. No. 28-1) at 47,

34

184:2.

When he came into work that day to pick up a

paycheck he was sent to see a supervisor.

The supervisor

gave him his paycheck, asked for his employee badge, and
told him he was suspended.

Westland fired him five days

later while he was on suspension.
In its argument for summary judgment on this claim,
Westland repeatedly cites the fact that it gave Norris
FMLA leave when he asked for it.
at

25.

Westland

seems

to

be

Def. Br. (Doc. No. 27)
under

the

mistaken

impression that obeying federal law most of the time
means it should win summary judgment all of the time.
Westland fails to address the fact that it suspended-–and
then fired-–Norris while he was making use of FMLA time,
even though he had a statutory right to reinstatement
following FMLA leave.

Westland’s bald conclusion that

Norris “was never denied any benefit afforded under the
FMLA” thus rings false.

Id.

As Norris has shown interference with his right of
restoration, this claim survives summary judgment unless

35

“the record establishe[s] without dispute” that Westland
fired him for “a reason wholly unrelated to the FMLA
leave.”

Strickland,

239

F.3d

at

1208.

Westland’s

position that it fired Norris because of his poor-quality
workmanship is unrelated to his FMLA leave.

However, the

court has already concluded that a reasonable jury could
review the evidentiary record in this case and decide to
disregard

Westland’s

stated

rationale

as

pretext.

Summary judgment on this claim is therefore inappropriate
as well.

2.

FMLA Retaliation Claim

In a claim of retaliation under the FMLA, an employee
“asserts that his employer discriminated against him
because he engaged in activity protected by the [FMLA].”
Strickland, 239 F.3d at 1206.

Retaliatory intent in the

form of adverse-employment action is a required element
of such claims.
circumstantial

Id. at 1207.
evidence,

Courts

36

When confronted with
apply

the

McDonnell

framework

Douglas

as

requires evidence
statutorily

explained

earlier.

Id.

This

that: (1) the employee engaged in

protected

activity;

(2)

he

suffered

an

adverse-employment action; and (3) “there is a causal
connection between the protected activity and the adverse
action.”

Hurlbert v. St. Mary’s Health Care System,

Inc., 439 F.3d 1286, 1297 (11th Cir. 2006).

Once an

employee makes such a showing, the burden shifts to the
employer to explain why it took the contested action.
Id.

If the employer offers a legitimate, non-retaliatory

reason for its action, the burden shifts once again to
the employee, who must reveal the non-retaliatory reason
as pretextual.

Id.

Westland seeks summary judgment on this claim on the
ground

that

Norris

has

not

shown

its

poor-quality-

workmanship explanation a pretext for retaliation.

It

also argues that its consistent record of allowing Norris
to take FMLA leave means it did not punish him for taking
leave.

37

The court has already determined a reasonable jury
could choose to discount Westland’s proffered reason for
firing

Norris.

Moreover,

the

evidence

shows

that

Norris’s use of FMLA leave skyrocketed in the weeks and
months leading up to his termination.

A jury could infer

from this evidence that, although Westland tolerated
small amounts of leave in the past, it chose to intervene
when Norris began taking leave with more consistency.
Indeed, he was exercising his right to FMLA leave at the
time he was fired.

“Close temporal proximity between

protected conduct and an adverse employment action is
generally ‘sufficient circumstantial evidence to create
a

genuine

issue

connection.’”

of

material

fact

of

Hurlbert, 439 F.3d at 1298.

a

causal

As the court

finds evidence that the real reason underlying Westland’s
decision to fire Norris was his use of FMLA leave,
summary judgment on this claim is unwarranted.
***

38

For the above reasons, it is ORDERED that defendant
GKN

Westland

Aerospace,

Inc.’s

motion

for

summary

judgment (Doc. No. 26) is denied.
DONE, this the 5th day of February, 2013.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE