Meyer v. Lincare Inc. (CONSENT)
OPINION AND ORDER directing that: (1) The Motion to Strike be DENIED (Doc. No. 33 ); (2) The Motion to Allow Reply be GRANTED (Doc. No. 33 ); the court construes the Motion as including a Reply to the Plaintiffs Response; (3) The Motion for Summary Judgment be GRANTED in favor of Defendant (Doc. No. 29 ); (4) This case be DISMISSED with prejudice; (5) The costs of this proceedings be taxed against Plaintiff. Signed by Honorable Judge Terry F. Moorer on 10/16/13. (scn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
CIVIL ACTION NO. 2:12cv754-TFM
OPINION and ORDER
Plaintiff Brittney Meyer (“Plaintiff” or “Meyer”), a former employee of Defendant
Lincare Inc. (“Defendant” or “Lincare”), brings this action pursuant to Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), and the Family
Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”). Specifically, she asserts that
Lincare discriminated against her on the basis of her gender by terminating her from her
employment. In addition, she claims that Lincare retaliated against her for taking time off
from work for FMLA leave.
This court has jurisdiction over the Title VII claim pursuant to 42 U.S.C. § 2000e-5
and the FMLA claim pursuant to 29 U.S.C. § 2617(2). Pursuant to the provisions of 28
U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the parties have consented to a United States
Magistrate Judge conducting all proceedings in this case and ordering the entry of final
Now pending before the court are the Motion for Summary Judgment and the Motion
to Strike or in the Alternative Motion to Allow Reply filed by Defendant. The court has
carefully reviewed the Motions and the supporting and opposing briefs and evidentiary
materials and concludes that the Motion to Strike is due to be DENIED and the Motion for
Summary Judgment and Motion to Allow Reply is due to be GRANTED.
II. SUMMARY JUDGMENT STANDARD
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment
is appropriate where “there is no genuine issue as to any material fact and . . . the moving
party is entitled to judgment as a matter of law.” This standard can be met by the movant,
in a case in which the ultimate burden of persuasion at trial rests on the nonmovant, either
by submitting affirmative evidence negating an essential element of the nonmovant’s claim,
or by demonstrating that the nonmovant’s evidence itself is insufficient to establish an
essential element of his or her claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593 (11th Cir. 1995); Edwards v. Wallace
Cmty Coll., 49 F.3d 1517, 1521 (11th Cir. 1995).
The burden then shifts to the nonmovant to make a showing sufficient to establish the
existence of an essential element of his claims, and on which he bears the burden of proof
at trial. Id. To satisfy this burden, the nonmovant cannot rest on the pleadings, but must, by
affidavit or other means, set forth specific facts showing that there is a genuine issue for trial.
FED. R. CIV. P. 56(e).
The court’s function in deciding a motion for summary judgment is to determine
whether there exist genuine, material issues of fact to be tried; and if not, whether the movant
is entitled to judgment as a matter of law. See Dominick v. Dixie Nat’l Life Ins. Co., 809 F.2d
1559 (11th Cir. 1987). It is substantive law that identifies those facts which are material on
motions for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258 (1986);
See also DeLong Equip. Co. v. Washington Mills Abrasive Co., 887 F.2d 1499 (11th Cir.
When the court considers a motion for summary judgment, it must refrain from
deciding any material factual issues. All the evidence and the inferences drawn from the
underlying facts must be viewed in the light most favorable to the nonmovant. Earley v.
Champion Int’l Corp., 907 F.2d 1077, 1080 (11th Cir. 1990). See Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The movant bears “the exacting
burden of demonstrating that there is no dispute as to any material fact in the case.” Warrior
Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983).
Viewed in the light most favorable to the plaintiff and drawing all reasonable
inferences in her favor, the following facts are taken as undisputed for the purpose of
summary judgment. In April 2010, Meyer began working as a sales representative at
Lincare, a company which provides respiratory care and equipment to the homes of patients.
(Def’s Ex. B, Adams’ Affid., p. 2.) When beginning work at Lincare, Meyer watched a
video concerning sexual harassment in the workplace. (Def’s Ex. A, Meyer’s Dep., p. 50.)
She also received a copy of the Employee Handbook and signed an “Employee Handbook
Acknowledgment Form,” indicating that she agreed to abide by the policies set forth in the
handbook. (Doc. No. 29-12; Doc. No. 29-13, p. 2.)
In May 2010, Meyer’s supervisor, Danny Stephens, promoted her to Center Manager.
(Id.; Def’s Ex A, Meyer’s Dep., p. 14.) Shortly after her promotion, Meyer hired Danny
Phillips as a service representative and Shannon Boswell as a customer service
representative. (Meyer’s Dep., p. 28.)
Meyer met all of her sales goals until she underwent gall bladder surgery in June
2011. (Id., p. 43.) Meyer requested and was granted FMLA leave effective June 30, 2011.
(Def’s Ex. B, Adams’ Affid., p. 8.) Her physician ordered that she return to work on July 11,
2011 with restrictions to lift no more than ten pounds until August 10, 2011. (Id., p. 9.)
Lincare’s Human Resource Department determined that it would be unable to accommodate
the ten pound lifting restriction and allowed Meyer to remain on FMLA leave. (Id.) Meyer
subsequently provided a medical certification from her physician indicating that she could
return to work on August 15, 2011. (Id.)
A few days before returning to work, Meyer called Stephens and requested additional
FMLA leave because her father was suffering from severe respiratory failure and required
several medical tests, including an open biopsy, to determine whether he had cancer.
(Meyer’s Dep., p. 88.) Stephens told her that she could not extend her FMLA leave and that
she “will have [her] ass back in that office bright and early Monday morning.” (Id., p. 58.)
Meyer hung up the phone and called Mary Bennett, a Lincare human resources
representative. (Id.) Bennett advised Meyer that she was allowed to take intermittent leave
and to submit the appropriate paperwork. (Id., p. 59.)
Meyer returned to work bright and early on the morning of August 15, 2011. Upon
Meyer’s return to the office, Stephens issued her a Final Written Warning, which cautioned:
In the process of confirming the specifics regarding your recent leave
of absence, it was noted that you did not report your absences for the week of
January 17, 2011. Since you are a salaried employee, you were paid for the
time, so the fact that you never reported or entered your time off was not
caught until we were calculating your available vacation time to be paid out
for your leave.
While this may have been an oversight on your part, the fact is that your
time records are not an accurate representation of the actual time you have
worked, which is a violation of Lincare Major Infraction #11 - Falsification of
As an employee of Lincare, you are required to comply with all
company policies and procedures. As a manager, you are held strictly to this
requirement, as you are setting the example for your staff. You are required
to report all of your time off to our Area Secretary so that it can be properly
documented in the timekeeping system.
The final written warning is being issued to formally advise you that if
you do not demonstrate immediate and sustained improvement in the areas
addressed herein, while maintaining overall satisfactory job performance,
further corrective action, up to and including employment termination, will
The responsibility for improving lies with you. If you are unclear about
your responsibilities or the company’s expectations, please advise me
(Doc. No. 29-11, p. 11; Def’s Ex. 5.) Meyer did not formally dispute the information in the
written warning by using any of the problem resolution procedures listed in the Employee
Handbook. (Def’s Ex. B, Adams’ Affid., p. 10.)
Upon submitting the proper documentation concerning her father’s medical treatment,
Meyer was granted intermittent FMLA leave on August 30, September 1, 8, and 9, October
7, 25, and 27, and November 3 and 10, 2011. (Id.) During the second week of September,
Stephens met with Meyer to discuss problems with her productivity, including her failure to
meet her monthly goal of 15 setups with “+5 growth” throughout 2011.1 (Adams’ Affid., p.
11; Def’s Ex. 5.) In a letter dated October 13, 2011, Stephens notified Meyer that she was
placed on probation and that her employment would be terminated if she did not demonstrate
satisfactory performance improvement. (Def’s Ex. 5, Probation Letter.) Meyer was also
provided a written action plan, listing areas in which she needed improvement, including
center performance, job duties, leadership skills, and professionalism. (Def’s Ex. 5, Action
Plan). In addition, Stephens ordered Meyer to send him an email every Thursday with a
weekly outline of her work activities. (Doc. No. 1, Pl’s Comp., p. 3.)
Despite being granted intermittent leave on November 10, 2013, Meyer went to her
office before business hours – approximately 30 minutes before the respiratory center opened
-- to prepare her weekly email for Stephens. (Meyer’s Dep., p. 54.) Meyer was wearing her
workout clothes and boots. (Pl’s Comp., p. 4; Pl’s Ex. E.) Later that day, Stephens received
an email from Phillips, which complained of the following:
Jon Stepens [sic]:
A few months ago while working in the file room, [Meyer] came by and her
hand went across my butt. She said she was sorry and did not mean to do that
and said, “Oh I guess you can get me on sexual harassment. A few weeks ago
Meyer does not agree that she failed to meet her goals prior to taking FMLA leave in June 2011.
(Meyer’s Dep., p. 197.)
she came up front where me and Shannon was and put her hand on my
shoulder and rubbed my arm saying she needed something long, pause hard
pause and cold and then she said she was talking about a coke then giggled.
On 11-10-11 I came in the office at 7:45 to go do a suction pump set up [and]
about the same time [Meyer] came in and had only a t-shirt [and] no bra, tight
leggings and bedroom slippers. I could see through her thin tight fitting t-shirt.
She said she did not know anyone was here and took her hand to cover herself
up after talking with her about a minute or two. She went to her office and I
went to the warehouse to get the pump. She came back to warehouse and
ask[ed] me what I was going to do today. After talking with her several
minutes she then covered herself. I went back to my office and she went in her
office. She came to the door of my office to tell me to tell Shannon she was
not going to be here today and that she was going to take every Thursday
FMLA off with her dad. Once again she put her hands up to cover herself.
Anfter [sic] she talked with we [sic] a few minutes uncovered. As she was
leaving she had [an] armful of papers and folders with her. I am telling you
this because I feel uneasy with this going on, and she might say that I said
something to her or tried something later on.
(Def’s Ex. 9, Email to Adams dated November 11, 2011). Stephens forwarded the e-mail to
Upon receiving the email, Adams began an investigation of Phillips’ allegations.
(Adams’ Affid., p. 11.) When Adams questioned Boswell about Phillips’ complaint, Boswell
confirmed that she was present when Meyer made statements about the Coca-Cola bottle.2
In preparation for a hearing before the State Department of Industrial Relations, Adams asked
Boswell to send her an email regarding their discussion during the previous investigation. (Adams’ Affid.,
p. 12.) In her email, Boswell made several allegations against Meyer, including the following:
April 14 [,2010] Danny was standing at the door in the front office and Brittney was at the
desk and I was coming up the hallway and I heard Danny state his back hurt [because] he
had some bad setups over the weekend. I then heard Brittney state “well my vagina hurts”
and then when she looked up and saw me she left the room.
June 7th Danny was sitting in the front office where my desk is and Brittney came up the
(Id.; Def’s Ex. C, pp. 73, 79.)
In a letter from Stephens dated November 14, 2011, Meyer received the following
notice of her termination:
It has been reported and confirmed that you have demonstrated actions
and behaviors in the office that are unprofessional, inappropriate, and have
created an uncomfortable working environment for your staff. These actions
and behaviors violate the company’s policy prohibiting sexual harassment,
which is grounds for immediate discharge. Consequently, your employment
is being terminated effective immediately.
(Def’s Ex. 9, Letter dated November 14, 2011.) On the day of her termination, Meyer told
Stephens that Phillips had made sexually inappropriate comments to her. (Pl’s Dep., pp. 140,
146, 209.) Stephens responded, “I don’t care.” (Id., p. 209.)
A. Motion to Strike
As an initial matter, before addressing the Motion for Summary Judgment, the court
quickly disposes of the Motion to Strike or in the Alternative Motion to Allow Reply filed
by Defendant. (Doc. No. 33.) Lincare argues that certain statements in Plaintiff’s Response
should be stricken pursuant to FED.R.CIV.P. 12(f) because her factual assertions cannot be
hallway [and] stated “Danny I need something hard (as she is rubbing his shoulder) long
(pause) and cold (giggle), will you get me a coke you thought it was something else.
(Def’s Ex. 5, Email dated January 12, 2012.) This email, however, was not provided to Adams prior to
presented in a form that would be admissible in evidence.
The court is capable of sifting through the Response and accompanying
documentation and considering only those portions which are either based on the declarant’s
personal knowledge or are not being offered for the truth of the matter asserted. To the
extent any declarations contain information not based on personal knowledge, the court has
not considered the material in resolving the Motion for Summary Judgment. Accordingly,
Defendant’s Motion to Strike will be denied.
To the extent Defendant requests leave to file a reply, the Motion to Allow Reply will
be granted. The court construes the Defendant’s Motion as including a Reply to the
Plaintiff’s Response to the Motion for Summary Judgment. (Doc. No. 33.)
B. The Sexual Discrimination Claim
Title VII prohibits discrimination on the basis of race, color, religion, sex, or national
origin in a variety of employment practices. See Walker v. NationsBank of Fla., N.A., 53
F.3d 1548, 1555 (11th Cir. 1995). In an employment discrimination case, the plaintiff bears
the ultimate burden of proving intentional discrimination. Texas Dept. of Cmty Affairs v.
Burdine, 450 U.S. 248, 253 (1981). To defeat Defendant’s Motion for Summary Judgment,
Meyer must establish a prima facie case of discrimination by one of three generally accepted
methods: (1) presenting direct evidence of discriminatory intent; (2) presenting evidence to
satisfy the four-part circumstantial evidence test set out in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973); or (3) presenting statistical proof. Carter v. City of Miami, 870
F.2d 578, 581 (11th Cir. 1989).
Meyer has not presented any direct evidence of
discrimination nor does she rely on statistical evidence to support her discrimination claims.
Thus, the court will discuss whether Meyer has established circumstantial evidence of
Under the McDonnell Douglas framework, the plaintiff first has the burden of
establishing a prima facie case of discrimination, which creates a rebuttable presumption that
the employer acted illegally. See Combs v. Plantation Patterns, 106 F.3d 1519, 1527-28
(11th Cir. 1997). A plaintiff establishes a prima face case of disparate treatment based on
an employee’s discharge by showing that she was a qualified member of a protected class
and was subjected to an adverse employment action in contrast with similarly situated
employees outside the protected class. See, e.g., McDonnell Douglas, 411 U.S. at 802;
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004); Holifield v. Reno, 115
F.3d 1555, 1562 (11th Cir. 1997). The parties do not dispute that Meyer is female and that
she was terminated from her position as Center Manager. They do disagree, however, as to
whether similarly situated persons outside of the plaintiff’s protected class received more
“In determining whether employees are similarly situated for purposes of establishing
a prima facie case, it is necessary to determine whether the employees are involved in or
accused of the same or similar conduct” and are treated differently. Maniccia v. Brown, 171
F.3d 1364, 1368 (11th Cir.1999) (citing Jones v. Bessemer Carraway Med. Ctr., 137 F.3d
1306, 1311 (11th Cir. 1998) modified by, 151 F.3d 1321 (11th Cir. 1998)).3 The plaintiff
must identify similarly situated employees, outside the protected class, who engaged in
nearly identical conduct, but received better or more favorable treatment. See Maniccia, 171
F.3d at 1368; Jones, 137 F.3d at 1311.
Meyer alleges that she is similarly situated to one male employee – Daniel Phillips.
Meyer argues that Phillips made sexually inappropriate and other discriminatory comments
in the office but was not terminated for this behavior. The defendant asserts that Phillips is
not a proper comparator because he was a Service Representative and no one, including
Meyer, immediately reported to Lincare management personnel about Phillips’ comments
as required by the policies and procedures set forth in the Employee Handbook. (Doc. No.
33, pp. 11-12.)
Meyer asserts that on one occasion Phillips looked down another female co-worker’s
blouse. (Pl’s Dep., p. 210.) Meyer also asserts that Phillips made the following statements
to her in 2010:
“You must have one of those padded bras on today. Your boobs
“You have one of those N word rears.”
“You’re going to get a chest cold today.”
(Id.) Meyer maintains that she did not report the statements to management because she
The part of this opinion dealing with the establishment of a prima facie case by circumstantial
evidence was not superceded by Jones v. Bessemer Carraway Med. Ctr., 151 F.3d 1321 (11th Cir. 1998).
Only the part of the Court’s opinion regarding direct evidence was superceded.
“nipped it in the bud and handled it [her]self.” (Pl’s Dep., p. 211.)
Meyer and Phillips are not similarly situated. First, Meyer and Phillips held
substantially different jobs. Meyer was a Center Manager and Phillips was a Service
Representative. Thus, Meyer was in a supervisory position over Phillips, whereas Phillips
was not in a position of leadership at Lincare. More importantly, the difference in their
alleged transgressions is apparent. Phillips was not accused of wearing inappropriate
clothing and there is no evidence indicating that he was on probation at the time that the
allegations against him were made. In addition, a formal complaint of sexual harassment
against Meyer was brought against her by Phillips in compliance with the procedures set
forth in the employee handbook; however, no formal complaints of discrimination were
brought against Phillips by anyone employed by Lincare. Meyer waited until the date of her
termination – at least eleven months after the alleged incidents occurred – to report Phillips’
behavior. Given the number of dissimilarities, Meyer’s accusations of sexual harassment
against Phillips are insufficient to establish that both Meyer and Phillips were similarly
situated. Thus, Phillips is not a proper comparator in this case.
After careful review, the court concludes that the plaintiff has failed to demonstrate
a prima facie case of discrimination under the disparate treatment theory because she has not
demonstrated that she is similarly situated to any individuals outside her protected class who
were treated more favorably than her.
“If a plaintiff fails to show the existence of a similarly situated employee, summary
judgment is appropriate where no other evidence of discrimination is present.” Holifield, 115
F.3d at 1562. Meyer attempts to prove discrimination by asserting that she is not guilty of
making suggestive comments or wearing inappropriate clothing. Meyer’s self-serving
assertion that she is not guilty does not alone establish that she was terminated because of her
sex. “A plaintiff must show not merely that the defendant’s employment decisions were
mistaken but that they were in fact motivated by sex.” Wilson, 376 F.3d at 1087 (quoting
Lee v. GTE Florida, Inc., 226 F.3d 1249, 1253 (11th Cir. 2000)). The role of the court “‘is
to prevent unlawful hiring practices, not to act as a super personnel department that secondguesses employers’ business judgments.’” Id. (quoting Lee, 226 F.3d at 1254).
Title VII does not make unexplained differences in treatment per se
illegal nor does it make inconsistent or irrational employment practices illegal
. . . The law does not require, nor could it ever realistically require, employers
to treat all of their employees all of the time in all matters with absolute,
antiseptic, hindsight equality. What the law does require is that an employer
not discriminate against an employee on the basis of the employee’s protected
E.E.O.C. v. Flasher Co., Inc., 986 F.2d 1312, 1319 (10th Cir. 1992).
Meyer fails to demonstrate a genuine dispute of material fact with respect to her Title
VII claim of disparate treatment. Consequently, the Motion for Summary Judgment is due
to be granted on Title VII claim.
B. The Family Medical Leave Act Claim
Meyer asserts that Lincare retaliated against her in violation of FMLA by “penalizing
[her] with unfair write-ups and other documentation, designed to justify firing [her]” because
she took intermittent leave to take care of her father. (Pl’s Comp., p. 5.)
Lincare argues that collateral estoppel bars Meyer from claiming that Lincare
retaliated against her for taking FMLA leave.
Lincare bases this argument on the
determination of the Alabama Department of Industrial Relations (“ADIR”) in her
unemployment compensation hearing that she is not entitled to benefits because she engaged
in misconduct. Specifically, the state agency found:
Section 25-4-78(3)(c) of the Unemployment Compensation Law states
that an individual shall be disqualified from receiving benefits if she was
discharged from her most recent bona fide work for misconduct committed in
connection with her work. Alabama Appellate Courts have defined
“misconduct” as conduct evincing a deliberate, willful or wanton disregard of
an employer’s interests or standards of behavior which he has a right to expect
of his employee. The preponderance of the evidence shows that the claimant
was at work for business purposes on November 10, 2011. At this time, the
claimant was not dressed in accordance with the company dress code and was
discharged as a result. This conduct falls below the standards which the
employer has the right to expect and thus, constitutes misconduct. Because
this misconduct is work related, the claimant will be disqualified for benefits
under this section of Law.
(Def’s Ex. 18.)
In Alabama, “state agency decisions have preclusive effect” on subsequent
(1) there is identity of the parties or their privies; (2) there is identity of the
issues; (3) the parties had an adequate opportunity to litigate the issues in the
administrative proceeding; and (5) the findings on the issues to be estopped
were necessary to the administrative decision.
Sparks v. Sunshine Mills, Inc., No. 3:12-CV-02544-IPS, 2013 WL 4760964 (N.D. Ala., Sept.
4, 2013) (quoting Petty v. United Plating, Inc., 2012 WL 2047532, at *10 (N.D. Ala. 2012)).
In this case, there is identity of the parties and identity of one of the issues – whether
Meyer’s failure to follow the dress code warranted termination. The court is unable to
discern whether the defendant’s second proffered reason for Meyer’s termination,
specifically her inappropriate comments, were fully litigated in the state court proceeding.
Meyer argues that she was not provided the opportunity to rebut all of the defendant’s
reasons for her termination during the state agency’s proceeding. It is arguable that the
ADIR’s determination that Meyer was terminated for failing to follow the dress code
precludes Meyer’s retaliation claim in this court. It is unnecessary, however, for the court
to further grapple with this issue as it is clear that Meyer has failed to demonstrate a genuine
dispute of material fact with respect to her FMLA claim.
Under FMLA, an employee is entitled to up to twelve weeks of leave each year to care
for the employee’s spouse, parent or child who has a serious health condition. See 29 U.S.C.
§ 2612(a)(1). The FMLA creates two types of claims: (1) interference claims, in which an
employee asserts that his employer denied or otherwise interfered with his substantive rights
under the Act, see 29 U.S.C. § 2615(a)(1); and (2) retaliation claims, in which an employee
asserts that his employer discriminated against him because he engaged in an activity
protected by the Act. See 29 U.S.C. § 2615(a)(1)&(2); see also Wascura v. City of South
Miami, 257 F.3d 1238, 1247-48 (11th Cir. 2001) (citing Strickland v. Water Works and
Sewer Bd. of the City of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001)).
Meyer does not assert that the defendant interfered with her substantive right to take
FMLA leave; instead, she argues that the defendant retaliated against her for taking leave
under the Act. “To prove FMLA retaliation, an employee must show that [her] employer
intentionally discriminated against [her] for exercising an FMLA right.” Martin v. Brevard
County Public Schools, 543 F.3d 1261, 1267 (11th Cir. 2008) (emphasis in original). In this
case, there is no direct evidence of discriminatory intent. Consequently, the court will
evaluate Meyer’s claim of retaliatory discharge under FLMA using the same burden-shifting
approach employed in Title VII cases. Id. First, an employee must make out a prima facie
case of retaliation by showing she engaged in activity protected by FMLA and suffered an
adverse employment action causally related to that activity. Id. The burden then shifts to the
employer “to articulate a legitimate reason for the adverse action.” Hurlbert v. St. Mary’s
Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir. 2006). “If the employer does so, the
employee must then show that the employer’s proffered reason was pretextual by presenting
evidence sufficient to permit a reasonable factfinder to conclude that the reasons given by
the employer were not the real reasons for the adverse employment decision.” Martin, 543
F.3d at 1268 (citations omitted).
The defendant does not dispute that Meyer sets forth a prima facie case of retaliation.
(Doc. No. 29, p. 36.) The defendant, however, argues that it has a legitimate, non-retaliatory
reason for the adverse employment action. Specifically, Lincare asserts that Meyer was
terminated for wearing unprofessional business attire and making suggestive comments to
a male employee. Thus, the defendant has articulated a legitimate, non-discriminatory reason
for terminating the plaintiff.
Next, the court turns to whether Meyer has demonstrated that Lincare’s legitimate,
non-discriminatory reason for her termination is a pretext for discrimination based on her use
of FMLA leave.
“[A] reason cannot be proved to be a ‘pretext for discrimination’ unless it is
shown both that the reason was false, and that discrimination was the real
reason.” St. Mary's Honor Ctr. v.Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742,
2752, 125 L.Ed.2d 407 (1993). In this respect, conclusory allegations or
unsupported assertions of discrimination, without more, do not raise an
inference of pretext where an employer has offered extensive evidence of
legitimate, nondiscriminatory reasons for its actions. Mayfield v. Patterson
Pump Co., 101 F.3d 1371, 1376 (11th Cir.1996). Instead, the plaintiff “must
meet [the proffered] reason head on and rebut it, and the employee cannot
succeed by simply quarreling with the wisdom of that reason.” Chapman v. AI
Transp., 229 F.3d 1012, 1030 (11th Cir.2000) (en banc). A plaintiff will
withstand summary judgment by demonstrating “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
employer's proffered legitimate reasons for its action that a reasonable
factfinder could find them unworthy of credence.” Combs, 106 F.3d at 1538
(internal quotation marks omitted).
Gilliard v. Georgia Dept. of Corrections, 500 Fed. Appx. 860, 865 (11th Cir. 2012).
At times, the plaintiff’s brief is not a model of clarity. Meyer conflates the third
element of a prima facie case of retaliation with her argument concerning pretext. (Pl’s Br.,
p. 20.) As best as the court is able to determine, it appears that Meyer asserts that her
supervisor’s comments indicating that she was not permitted to take additional leave and that
he did not like FMLA demonstrates a discriminatory animus. There is no dispute that
Stephens incorrectly informed Meyer that she could not take additional FMLA leave.
Nonetheless, the human resources department subsequently advised Stephens that Meyer was
permitted to take intermittent leave to take care of her father and Lincare allowed her to do
so. Furthermore, a supervisor’s comments concerning his frustration with FMLA is
insufficient to establish pretext. See Rossi v. Fulton County, Ga, No. 1:10-CV-4254-RWSAJB, 2013 WL 1213205, at *25 (N.D. Ga. Feb. 8, 2013).
Meyer also appears to argue that the timing of the final written warning concerning
her failure to report leave establishes pretext. The defendant argues that it discovered the
discrepancy regarding her failure to report her personal leave when calculating her FMLA
leave time. Meyer acknowledged during her deposition that “there was a time that [she was]
paid for work that should not have been paid for” and that she was “paid for the days that
[she was] actually not working.” (Pl’s Dep., p. 60, 65, 68.) Although she argues that she
reported the discrepancy to an area secretary, she admits that she did not pursue the matter
through the problem resolution process set forth in the employee handbook. (Id., p. 67.)
Other than the fact that the warning was prepared while Meyer was on FMLA leave, nothing
in the record indicates that the incident had anything to do with FMLA. See Rossi, supra.
Meyer also asserts that her placement on probationary status due to a lack of
productivity in September, which coincided with her intermittent leave, establishes pretext
because Stephens did not meet with her to help her improve as set forth in the written action
plan. Lincare’s proffered reasons for terminating Meyer, however, are not related to her
productivity. In addition, she admits that she did not meet her sales goals after June 2011.
(Meyer’s Dep., p. 43.)
Next, Meyer argues that Lincare’s failure to investigate Phillips for his alleged
inappropriate behavior establishes pretext because Lincare is not legitimately “gung-ho”
about enforcing its sexual harassment policy. (Doc. No. 32, p. 26.) As previously discussed,
Phillips was not a supervisor and no formal complaint of sexual harassment was lodged
against him. In addition, Meyer did not report Phillips’ alleged behavior occurring in 2010
until the date of her termination in November 2011. More importantly, Meyer concedes that
her attire was not in compliance with the company dress code. (Pl’s Dep., pp. 53-54.) This
court therefore concludes that Meyer has failed to show that Lincare’s legitimate reasons for
her termination – violation of the dress code and making suggestive comments – were more
than likely motivated by retaliation for her usage of FMLA leave.
Lincare’s proffered reasons for terminating Meyer are non-discriminatory, are
reasonable, and are not rebutted. With respect to an at-will employer like Lincare, “[a]n
employer may fire an employee for a good reason, a bad reason, a reason based on erroneous
facts, or for no reason at all, as long as its action is not for a discriminatory [or retaliatory]
reason.” Chapman, 229 F.3d at 1030. See also Montgomery v. Ion Media Management Co.,
No. 8:10cv429-T-33AEP, 2011 WL 1791294 (M.D. Fla. May 10, 2011) (finding no pretext
for retaliation in FMLA case).
This court has considered all of the evidence in the light most favorable to Meyer as
the non-movant. The court grants summary judgment in favor of Lincare because Meyer has
failed to come forward with evidence to demonstrate that Lincare’s proffered legitimate and
non-retaliatory business decision to terminate Meyer was a pretext for retaliation.
Accordingly, it be and is hereby
The Motion to Strike be DENIED. (Doc. No. 33.)
The Motion to Allow Reply be GRANTED. (Doc. No. 33.) The court
construes the Motion as including a Reply to the Plaintiff’s Response.
The Motion for Summary Judgment be GRANTED in favor of Defendant.
(Doc. No. 29.)
This case be DISMISSED with prejudice.
The costs of this proceedings be taxed against Plaintiff.
Done this 16th day of October, 2013.
/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE
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