Norris v. GKN Westland Aerospace, Inc.
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,
GKN WESTLAND AEROSPACE,
CIVIL ACTION NO.
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
discussed, the motion will be denied.
Norris worked at Westland’s manufacturing facility in
Approximately 1,000 employees work
at this facility, manufacturing and assembling components
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.
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.
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
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
He sought several accommodations, including
the ability to take frequent trips to the restroom as
needed and permission to manage his blood sugar with
permission to take intermittent FMLA leave beginning
He took three days of such leave in 2009.
Unfortunately, Hill was the first and last supervisor
to handle Norris’s medical problems without incident.
McGuiness, commented on his frequent need to use the
Following him into the break room, McGuiness would quip:
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,
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.
She led them into an
HR office where no HR personnel were present.
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.
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
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
The third-shift transfer also brought Norris under
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
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.
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.
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.”
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
diabetic, Allen told him he “need[ed] to stay out of the
Id. at 33, 126:23-127:1.
Norris received warnings from upper management as
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
appear satisfied by this response.
She waved him out the
On December 3, 2010, while out on FMLA leave, he was
On December 8, 2010, HR called Norris and
The official reason given was poor-quality
“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.
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.”
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).
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.
ADA Disparate-Treatment Claim
discriminate on the basis of disability in regards to the
Employees may claim unlawful discrimination
under the ADA by showing either that the employer’s
members of a protected class (disparate impact) or that
the employer treated certain employees worse than others
Raytheon Co. v. Hernandez, 540 U.S. 44, 52-
Liability thus “depends on whether the protected trait...
Biggins, 507 U.S. 604, 610 (1993)).
Norris can make this
showing with circumstantial evidence.
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
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
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
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
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.”
Under the McDonnell Douglas framework, the plaintiff
first must make out a prima-facie case of discriminatory
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
discriminated against because of his disability.
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
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).
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
plaintiff bears the ultimate burden of persuasion, “if a
jury reasonably could infer from the evidence presented
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.”
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
framework is not... the sine qua non for a plaintiff to
Smith, 644 F.3d at 1328 (quoting
Silverman v. Bd. of Educ., 637 F.3d 729, 734 (7th Cir.
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).
disability: transfer and termination.
He has put forth
survive summary judgment on both claims.
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.
herself effected his transfer to third shift.
timing of this transfer and the fact that Hornsby was the
Norris also points out that he was not the least
senior employee in his department and yet was picked for
Although Westland contests this fact, Norris
has put forth enough evidence to put the question to a
In his declaration, Norris states that employee
Larry Spivey was hired after him and worked as a cargodoor
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.
Norris had been
working for Westland for over a year by the time Spivey
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.”
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 %
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
fact transferred and Westland had definite criteria in
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).
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
“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
Thompkins v. Morris Brown College, 752
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
Norris’s co-worker, Traywick Buckhannon, testified that
no one else was moved to third shift to replace Norris.
assembly operation altogether. This undermines Hornsby’s
assertion that the transfer was needed for allocation of
(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.
triable case that his disability motivated his shift
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
Westland also contends that it fired Norris
To support his claim that Westland terminated him
because he is disabled, Norris compares himself to nondisabled
workmanship but were not fired.
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
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.
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.
The employee showed that, although he
Smith, F.3d at 1327.
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
Eleventh Circuit agreed with the district court that the
employee did not make a prima-facie case under McDonnell
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
employees who sent similar emails.
found the employee “[did] not need a black supervisor
Id. at 1327.
discrimination without one.
taking medically necessary breaks and medical leave.
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
Norris Depo. (Doc. No. 28-1) at 32, 122:12-19.
Allen, his supervisor when he worked overtime, repeatedly
told him he took too many breaks and that he “needed[ed]
to stay out of the break room.”
Id. at 33, 126:22-
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
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.
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.
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
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
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).
discriminatory statement made about an employee two and
a half years before the employee’s termination that did
was not direct evidence of discriminatory
Id. at 1228.
It did consider this temporally
discrimination, but required some additional evidence
before concluding that the employer’s stated reason for
the action was a pretext for discrimination.
employer’s discriminatory intent in firing him are more
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
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.”
evidence that Westland’s non-discriminatory basis for his
termination--poor-quality workmanship--was a pretext. He
workmanship but were not terminated.
None of these
employees appears similarly situated in “all relevant
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.”
compares himself to Michael Bentley, a current employee
who was hired at the same time as him.
Nine reports of
Bentley worked on, and five MDRs were issued for parts
Norris worked on.4
The court agrees Bentley and Norris
One of Norris’s MDRs was not entered until three
are similarly situated in terms of past record and length
However, Westland’s discipline policy also considers
the “circumstances surrounding any specific incident.”
The specific incidents for which Westland claims it
December 8, 2010.
The letter begins by noting that Norris received a
written notice for poor-quality workmanship on August 10,
The written notice to which this refers in turn
sets out three workmanship issues.
Two of those issues
The third, a “potential scrapped part,” is
The written warning states that “Holes
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.
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.
The December 8
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.
operators made similar errors but were not written up for
Tony Scott, Norris’s first supervisor, states that
According to Scott,
returned to Westland from the customer.
was written up.
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
Westland has yet to produce successfully a single German
Norris testified that he did not want to
work on the German Swivel doors because he did not have
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.
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
While Westland contends that it did not discover
this workmanship error until December 2010, a reasonable
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
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
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
inconsistencies, incoherencies, or contradictions in the
employer’s proferred legitimate reasons for its action
that a reasonable factfinder could find them unworthy of
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
explanation of poor-quality workmanship was drummed up or
Summary judgment is therefore unavailable on
ADA Retaliation Claim
The ADA’s retaliation provision makes it unlawful to
discriminate against any person who “opposed any act or
“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
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
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).
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
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.”
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
Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th
transfer was discriminatory, it also finds that he has
made a triable case of retaliatory intent.
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
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
evidence showing he was not the least senior employee in
his department when he was forcibly transferred and that
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
appropriate on this claim.
entitlement to 12 workweeks of medical leave a year.
U.S.C. § 2612(a)(1)(D).
It also guarantees the right to
employment held by the employee when the [medical] leave
commenced” or to a position equal to it.
Two types of claims are available to
plaintiffs seeking to vindicate their rights under the
Strickland v. Water Works and Sewer Bd. of City of
Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001).
In this case, Norris alleges both an interference and
a retaliation claim, and Westland seeks summary judgment
FMLA Interference Claim
In an interference claim, an employee “asserts that
his employer denied or otherwise interfered with his
§ 2615(a)(1); Strickland, 239 F.3d at 1206.
“need only demonstrate that he was entitled to but denied
Id. at 1208.
Unlike an ADA disparateclaim,
substantive rights is not at issue; id., “the employer’s
motives are irrelevant.”
Here, Norris has raised what is in essence a claim
that Westland interfered with his right to have his job
He testified that, on December 3, 2010, he
“was on FMLA.”
Norris Depo. (Doc. No. 28-1) at 47,
When he came into work that day to pick up a
paycheck he was sent to see a 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.
Def. Br. (Doc. No. 27)
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.
As Norris has shown interference with his right of
restoration, this claim survives summary judgment unless
“the record establishe[s] without dispute” that Westland
fired him for “a reason wholly unrelated to the FMLA
position that it fired Norris because of his poor-quality
workmanship is unrelated to his FMLA leave.
court has already concluded that a reasonable jury could
review the evidentiary record in this case and decide to
Summary judgment on this claim is therefore inappropriate
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.
Id. at 1207.
When confronted with
that: (1) the employee engaged in
adverse-employment action; and (3) “there is a causal
connection between the protected activity and the adverse
Hurlbert v. St. Mary’s Health Care System,
Inc., 439 F.3d 1286, 1297 (11th Cir. 2006).
employee makes such a showing, the burden shifts to the
employer to explain why it took the contested action.
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
Westland seeks summary judgment on this claim on the
workmanship explanation a pretext for retaliation.
also argues that its consistent record of allowing Norris
to take FMLA leave means it did not punish him for taking
The court has already determined a reasonable jury
could choose to discount Westland’s proffered reason for
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
Hurlbert, 439 F.3d at 1298.
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.
For the above reasons, it is ORDERED that defendant
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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