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, )

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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. ) ) ) ) ) ) ) ) ) ) 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

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