Abbott v. Elwood Staffing Services Inc et al

Filing 72

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 7/31/2014. (JLC)

FILED
2014 Jul-31 AM 10:29
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
RANDI A. ABBOTT,
Plaintiff,
v.
ELWOOD STAFFING SERVICES,
INC., AND HONDA
MANUFACTURING OF
ALABAMA, LLC,
Defendants.

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) Case No.: 1:12-CV-2244-VEH
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MEMORANDUM OPINION
This is a civil action brought by the plaintiff, Randi A. Abbott, against the
defendants, Elwood Staffing Services, Inc. (“Elwood”), and Honda Manufacturing
of Alabama, LLC (“HMA”). (Doc. 53 at 1). The Third Amended Complaint was filed
on October 24, 2013. It alleges the following claims against both Elwood and HMA:
“Failure to Accommodate on the Basis of Pregnancy/Sex – Pregnancy Discrimination
Act/Title VII” (Count One); “Unlawful Termination of Employment on the Basis of
Pregnancy/Sex–Pregnancy Discrimination Act/Title VII” (Count Two); “Failure to
Accommodate on the Basis of Disability–Americans with Disabilities Act” (Count
Three); “Unlawful Termination on the Basis of Disability–Americans with

Disabilities

Act”

(Count

Four);

“Retaliation

on

the

Basis

of

Pregnancy/Sex–Pregnancy Discrimination Act/Title VII” (Count Five); “Retaliation
on the Basis of Disability–ADA” (Count Six); and “Retaliation on the Basis of
Race–Title VII/Section 1981” (Count Seven). (Doc. 53 at 2-13). As to HMA alone,
the Third Amended Complaint alleges “Discrimination on the Basis of Race–Title
VII/Section 1981” (Count Eight). Against Elwood alone, the Third Amended
Complaint alleges “Retaliatory Discharge: § 25-5-11.1, Alabama Code 1975” (Count
Nine). All counts arise out of the plaintiff’s employment at an HMA facility.
The case comes before the court on the motions for summary judgment filed
by the defendants. (Docs. 57, 60). Also before the court is Elwood’s objections to
portions of the evidence submitted by the plaintiff in opposition to the motions for
summary judgment (doc. 67), and HMA’s motion to strike portions of that evidence
(doc. 69). For the reasons stated herein, Elwood’s objections and HMA’s motion to
strike will both be treated as objections and will be SUSTAINED in part and
OVERRULED in part. In addition, the motions for summary judgment will be
GRANTED, and this case will be DISMISSED.

2

I.

THE MOTION TO STRIKE AND THE OBJECTION TO THE
PLAINTIFF’S EVIDENCE
A.

Standard

As explained above, and in this court’s order of August 9, 2013 (doc. 50), the
court treats both the objections, and the motion to strike, as objections under Federal
Rule of Civil Procedure Rule 56(c)(2). Pursuant to that rule, “[a] party may object that
the material cited to support or dispute a fact cannot be presented in a form that would
be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). The advisory committee’s note
to Rule 56(c)(2) provide that:
[An] objection [under Rule 56(c)(2)] functions much as an objection at
trial . . . . The burden is on the proponent to show that the material is
admissible as presented or to explain the admissible form that is
anticipated.
Fed. R. Civ. P. 56 advisory committee’s note to 2010 amendments (emphasis added);
see also, Priest v. U.S. Sec. Associates Inc., 5:11-CV-03938-HGD, 2014 WL 800900
at *1 (N.D. Ala. Feb. 28, 2014) (Davis, M.J.); Riley v. Univ. of Alabama Health Servs.
Found., P.C., 2:12-CV-346-VEH, 2014 WL 66471 at * 3 (N.D. Ala. Jan. 8, 2014)
(Hopkins, J.); Peeler v. KVH Indus., Inc., 8:12-CV-1584-T-33TGW, 2013 WL
3871420 at *8 (M.D. Fla. July 25, 2013) on reconsideration in part, 8:12-CV-1584T-33TGW, 2013 WL 5289733 (M.D. Fla. Sept. 19, 2013) (Covington, J.); In re
Gregg, 11-40125- JTL, 2013 WL 3989061 * 3 (Bankr. M.D. Ga. July 2, 2013)
3

(Laney, B.J.); Gates v. HPA Subway, Inc., CIV.A. 11-00637-KD-B, 2012 WL
5877978 at *2 n. 5 (S.D. Ala. Nov. 21, 2012) (DuBose, J.).
B.

The Nature of the Arguments

Despite the clear burden on the plaintiff, she writes:
“The court is capable of sifting through evidence, as required by the
summary-judgment standard, without resort to an exclusionary process,
and the court will not allow the summary-judgment stage to degenerate
into a battle of motions to strike.” Mann v. Darden, Civil Action No.
2:07cv751MHT (WO) (M.D. Ala, July 6, 2009). Plaintiff, therefore, is
not submitting a line-by-line response to each objection raised by
[d]efendants but merely providing the Court with the following to assist
the Court in sifting through the evidence.
(Doc. 70 at 1). As will be shown below, the plaintiff’s failure to address the
defendants’ objections “line-by-line,” almost always equates to a failure to show that
the proffered evidence is admissible as presented or to explain the admissible form
of the evidence that is anticipated. In its discussion of the evidence, the court will
note where that has happened.
Similarly, the defendants sometimes argue that certain pieces of evidence are
inadmissible, but never cite to specific portions of the evidence–instead focusing only
on the “facts” submitted by the plaintiff which cite such evidence. Without a specific
citation, the court cannot determine what, if anything, needs to be stricken. At other
times, the defendants argue that some evidence does not support the proposition for

4

which it is cited. While that may be a reason for the court not to adopt that
proposition, it is not a reason to strike the evidence. These circumstances, too, will
be noted by the court in its examination of the evidence.
C.

The Plaintiff’s Handwritten Notes (Doc. 64-2 at 1-4)

As part of her submissions in opposition to the motions for summary judgment,
the plaintiff submits several pages of handwritten notes, written by her, which
memorialize the events of several days in July and August of 2011. (Doc. 64-2 at 14). Both defendants object to the consideration of the notes, in part, because they are
hearsay, and because they cannot be made admissible at trial. (Doc. 67 at 3-4; doc.
69 at 5, 7; doc. 71 at 3). The plaintiff does not respond to the argument that the notes
are hearsay, stating only:
Elwood contends that [p]laintiff’s notes are not admissible. A review of
the document demonstrates, this same document was an exhibit in
[p]laintiff’s deposition. Plaintiff authenticated this document at her
deposition. Honda contends that the notes are irrelevant to proving what
caused [p]laintiff’s injury, asserting that [p]laintiff is not a doctor.
Plaintiff did not have to be a doctor to realize she began bleeding from
her vagina while straining while working, as the notes describe.
(Doc. 70 at 2).
The plaintiff has not shown that the notes, and the statements therein, are either
not hearsay, or fall within some exception to the hearsay rule. Thus, the plaintiff has
failed to satisfy her burden “to show that the material is admissible as presented or to
5

explain the admissible form that is anticipated,” Fed. R. Civ. P. 56 advisory
committee’s note to 2010 amendments (emphasis omitted).
In addition, the court has reviewed the notes and affirmatively finds that they
are hearsay. Hearsay “is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” FED.R.EVID. 801(c). “Hearsay is inadmissible unless the statement is not
hearsay as provided by Rule 801(d), or falls into one of the hearsay exceptions
enumerated in Rules 803, 804, and 807.” United States v. Baker, 432 F.3d 1189, 1203
(11th Cir. 2005). The notes fall squarely within the definition of hearsay.
The general rule is that inadmissible hearsay cannot defeat a
motion for summary judgment where there is no indication that it is
reducible to a form that would be admissible at trial. See Pritchard v.
Southern Co. Services, 92 F.3d 1130, 1135, amended in part on
rehearing, 102 F.3d 1118 (11th Cir.1996), cert. denied, 520 U.S. 1274,
117 S.Ct. 2453, 138 L.Ed.2d 211 (1997).
Wyant v. Burlington N. Santa Fe R.R., 210 F. Supp. 2d 1263, 1275-76 (N.D. Ala.
2002) (Ott, M.J.). Further, portions of the notes constitute double hearsay. For double
hearsay to be admissible, “‘each part of the combined statements [must] conform [ ]
with an exception to the hearsay rule.’” United Technologies Corp. v. Mazer, 556
F.3d 1260, 1280 (11th Cir. 2009) (quoting Fed.R.Evid. 805). Further still, the notes
are unsworn, and the court does not consider unsworn statements. Dudley v. City of

6

Monroeville, 446 Fed.Appx. 204, 207 (11th Cir.2011) (“Unsworn statements do not
meet the requirements of Rule 56, so the district court could not—and properly did
not—rely on the content of the citizen’s [unsworn] statement.”) (citing Carr v.
Tatangelo, 338 F.3d 1259, 1273 n. 27 (11th Cir.2003)).
The objections to the notes (doc. 64-2 at 1-4) are SUSTAINED. They will be
stricken.1
D.

The “Balmer Notes” (Doc. 64-3)

In response to the motion for summary judgment the plaintiff proffers
document 64-3, which includes notes made, at least in part, by Alan Balmer,
Elwood’s Vice-President of its Workforce Solutions division. (Doc. 39-2 at 5(7)).2
HMA and Elwood argue that the entire exhibit is unauthenticated, and therefore
should not be considered. In its reply brief, HMA cites to Saunders v. Emory
Healthcare, Inc., 360 F. App’x 110, 113 (11th Cir. 2010), where the Eleventh Circuit,
citing to Fed. R. Civ. P. 56(e) as it existed at that time, wrote:
To be admissible in support of or in opposition to a motion for summary

1

The notes have been submitted at least twice, since this is the second time the motions
for summary judgment have been filed. All evidentiary rulings herein should be deemed to apply
to all copies of any exhibit, no matter its document number.
2

The citation refers to court document 39-2 at page 5, on which pages 6 through 9 of the
Balmer deposition appear. The number in parentheses indicates a citation to page 7 of the travel
transcript of the deposition, which in turn appears on page 5 of document 39-2. The court will
use this method of citation every time a travel transcript is cited.
7

judgment, a document must be authenticated by and attached to an
affidavit that meets the requirements of Rule 56(e) and the affiant must
be a person through whom the exhibits could be admitted into evidence.
10 A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure: Civil § 2722, at 382-84 (3d ed.1998).
Saunders, 360 F. App’x at 113.
First, Balmer testified in his deposition that he created this document, but only
down to the black line which appears on page 3. (Doc. 39-2 at 15(48)). He stated that
he did not know who put in the information below the black line. (Doc. 39-2 at
15(48)). At least down to the black line on page 3, the document has been
authenticated.
Further, authentication is not required at the summary judgment stage. Rule
56(e) was amended in 2010. It has been noted:
Before the 2010 amendments to the Federal Rules of Civil
Procedure, Rule 56 arguably required that all documents submitted to
support or oppose a summary judgment be authenticated. See, e.g., Ellis
v. Kilgore, 27 F.3d 562 (table), 1994 WL 320223, at *1 (4th Cir.1994)
(“The party opposing a motion for summary judgment may not merely
rest on its pleadings but must demonstrate sufficient evidence, properly
authenticated under Rule 56(e), which would be sufficient to support a
jury verdict in its favor.”); Orr v. Bank of America, NT & SA, 285 F.3d
764, 773 (“We have repeatedly held that unauthenticated documents
cannot be considered in a motion for summary judgment.”). Many courts
recognized an exception for “when there is no dispute as to the
document’s authenticity and it is apparent the document can be reduced
to admissible, authenticated form at trial.” 11 Moore’s Federal Practice
§ 56.92[3] (Matthew Bender 3d ed.); see also Rowell v. BellSouth Corp.
433 F.3d 794, 800 (11th Cir.2005) (“On motions for summary judgment,
8

we may consider only that evidence which can be reduced to an
admissible form.”); U.S. Aviation Underwriters, Inc. v. Yellow Freight
Sys., Inc., 296 F.Supp.2d 1322, 1327 n. 2 (In a case involving an
unauthenticated bill of lading, the Court stated, “Documents must
generally be properly authenticated to be considered at summary
judgment, unless it is apparent that those documents can be reduced to
admissible, authenticated form at trial.”); Lexington Ins. Co. v. Western
Pa. Hosp., 423 F.3d 318, 329 n. 6 (3rd. Cir.2005) (“Our Court has not
precluded reliance on unauthenticated documents to oppose a motion for
summary judgment, so long as they are ultimately reducible to
admissible evidence.) At least one court extended this exception to
statements by a pro se litigant that were unsupported by an affidavit. See
Hollingshead v. Windley, 2008 WL 4809221, at *3 n. 12 (S.D.Ala.2008)
(“The Court recognizes, of course, that many of plaintiff’s factual
representations in her summary judgment submission are not set forth
in affidavit form. Notwithstanding this technical infirmity, the Court will
consider plaintiff’s factual assertions for Rule 56 purposes in light of her
pro se status and the well-established rule that evidence should be
considered on summary judgment if it appears that it can be reduced to
admissible form at trial.”).
Those cases were decided under former Rule 56. The language
relied on for the authentication requirement, in former subsection (e),
was omitted in the amended Rule 56. The Court notes that many postamendment opinions on summary judgment—without acknowledging
the amendments—still cite pre-amendment case law . . . for current
authentication requirements. See, e.g,, Jimena v. Standish, 2013 WL
223131, at *1 (9th Cir.2013) (citing an opinion from 2002, the court
stated, “Unauthenticated documents cannot be considered in a motion
for summary judgment.”).
The majority of the opinions this Court has read from courts
construing current Rule 56, however, state the amendments eliminated
the authentication requirement and replaced it with a requirement that
evidence be presentable in admissible form at trial. As one court put it,
Newly revised Rule 56 of the Federal Rules of Civil
9

Procedure governs the procedure by which the court must
review objections to the admissibility of evidence
presented in connection with a motion for summary
judgment. In some respects, the 2010 amendment to Rule
56 works a sea change in summary judgment procedure
and introduces flexibility (and consequent uncertainty) in
place of the bright-line rules that are obtained previously.
Former Rule 56(e) contained an unequivocal direction that
documents presented in connection with a summary
judgment motion must be authenticated:
If a paper or part of a paper is referred
to in an affidavit, a sworn or certified copy
must be attached to or served with the
affidavit.
FED. R. CIV. P. 56(e)(1) (2009 version). Relying on this
language, the United States Court of Appeals for the Sixth
Circuit routinely held that unauthenticated documents
could not be used to support a motion for summary
judgment. See, e.g., Moore v. Holbrook, 2 F.3d 697,
698–99 (6th Cir.1993). As recently as 2009, the Court of
Appeals stated that unauthenticated documents do not meet
the requirements of Rule 56(e) and must be disregarded.
Alexander v. CareSource, 576 F.3d 551, 558–59 (6th
Cir.2009).
These authorities must be read carefully, however, in
light of the 2010 amendments to Rule 56, which eliminated
the unequivocal requirement that documents submitted in
support of a summary judgment motion must be
authenticated. Rather, the amended Rule allows a party
making or opposing a summary judgment motion to cite to
materials in the record including, among other things,
“depositions, documents, electronically stored information,
affidavits or declarations” and the like. FED. R. CIV.P.
56(c)(1)(A). If the opposing party believes that such
10

materials “cannot be presented in a form that would be
admissible in evidence,” that party must file an objection.
FED. R. CIV.P. 56(c)(2). Significantly, the objection
contemplated by the amended Rule is not that the material
“has not” been submitted in admissible form, but that it
“cannot” be. The comments to the 2010 amendments make
it clear that the drafters intended to make summary
judgment practice conform to procedure at trial. “The
objection functions much as an objection at trial, adjusted
for the pretrial setting. The burden is on the proponent to
show that the material is admissible as presented or to
explain the admissible form that is anticipated. There is no
need to make a separate motion to strike.” FED. R. CIV. P.
56 (2010 Advisory Committee comments). The revised
Rule therefore clearly contemplates that the proponent of
evidence will have the ability to address the opponent’s
objections, and the Rule allows the court to give the
proponent “an opportunity to properly support or address
the fact,” if the court finds the objection meritorious. FED.
R. CIV. P. 56(e)(1). Thus, the amendment replaces a clear,
bright-line rule (“all documents must be authenticated”)
with a multi-step process by which a proponent may submit
evidence, subject to objection by the opponent and an
opportunity for the proponent to either authenticate the
document or propose a method to doing so at trial.
Foreward Magazine, Inc. v. OverDrive, Inc., 2011 WL 5169384, at *2
(W.D.Mich.2011).
This is a reasonable interpretation of current Rule 56 given the
new language, the omission of the old language, and the policy behind
summary adjudication of minimizing time and expense when the
outcome of a case is obvious or depends only on matters of law. Thus
under current Rule 56, an objection cannot be based solely on evidence
not being authenticated—the objection must be that evidence cannot be
presented in admissible form, not that the evidence has not been
presented in admissible form. See, e.g., Slate v. Byrd, 2013 WL
11

1103275, at * 2 (M.D.N.C.2013) (“Because [defendant] has not filed an
objection contending that the cited material ‘cannot be presented in a
form that would be admissible in evidence,’ no basis exists for the Court
to decline consideration of the material at issue.”).
In re Gregg, 11-40125- JTL, 2013 WL 3989061 at *2-4 (Bankr. M.D. Ga. July 2,
2013) (Laney, C.B.J.). The court agrees with this well reasoned approach, and notes
that the defendants do not argue that the document cannot be authenticated. The
objections, to the extent that they are based upon the document not being
authenticated, are OVERRULED.3
HMA argues:
Doc. 63 [the plaintiff’s response to the motions for summary judgment]
generally cites to “Balmer Notes” without referencing a specific part of
page number. Without a specific reference, they are impermissibly
vague. . . . While unclear, HMA references the part(s) of “Balmer Notes”

3

HMA also specifically references the section of the exhibit after the line on page three

writing:
5.
Regarding “Balmer Notes” p. 3 (Doc. 63, p. 9, Fact 12), page three
(D00103) of “Balmer Notes” is not certified, or otherwise authenticated; Balmer
testified he did not draft page three (D00103), there is no evidence indicating who
drafted D00103, and, thus, D00103 is inadmissible to prove Josh Wade received
light duty.
(Doc. 69 at 10). Elwood similarly argues:
13. The notes found in [p]laintiff’s Exhibit 3 that appear below the line on the
third page are inadmissible and should not be considered by the Court nor should
any of the argument of [p]laintiff which relies on said notes.
(Doc. 67 at 7). Again, because HMA and Elwood do not argue that these portions of the exhibit
cannot be authenticated, the arguments fail.
12

to which it believes [p]laintiff refers for each citation.
(Doc. 69 at 8, n. 20). HMA then argues:
A.
The “Balmer Notes” [p]laintiff cites are due to be stricken because
they are conclusory, lack foundation, are based on hearsay, are
irrelevant/immaterial, are not authenticated, and are not cited with
specificity.
1.
Regarding “Balmer Notes” pp. 1-3 (Doc. 63, Response to
HMA Fact 48), [p]laintiff’s cited evidence provides no
foundation to support her conclusion that “everyone understood
that [p]laintiff suffered an on-the-job injury for which she sought
compensation and accommodation, but which [d]efendants
refused to provide,” and knowledge of an injury cannot be
imputed to any actors. Further, it is, at least, double hearsay
inadmissible to show the truth of the matter asserted [d]efendants’ knowledge of an on-the-job injury - and
contradicts her sworn deposition testimony.
2.
Regarding “Balmer Notes” p. 1, (Doc. 63, p. 9, Fact 11),
[p]laintiff offers only hearsay to conclude that she “started
spotting after doing her process.”
3.
Regarding “Balmer Notes” p. 3 (Doc. 63, p. 10, Fact 19),
[p]laintiff’s cited evidence fails to set out who knew, when they
knew, and how they knew an injury caused [p]laintiff’s
pregnancy-related impairment, and is conclusory and lacks
foundation. Further it is double hearsay inadmissible to show
the truth of the matter asserted - that [d]efendants knew an injury
caused [p]laintiff’s pregnancy-related impairment.
4.
Regarding “Balmer Notes” p. 1-3 (Doc. 63, pp. 9, 12, Facts
10, 32), [p]laintiff’s cited evidence provides no foundation for
concluding Balmer knew [p]laintiff suffered an on-the-job injury,
and knowledge cannot be imputed to him. Further, the notes are
hearsay inadmissible to show the truth of the matter asserted.
13

(Doc. 69 at 7-10) (footnotes omitted) (emphasis in original). Except in two footnotes,
HMA never cites to the exhibit in question. The objection’s reference to the plaintiff’s
brief in opposition to the motion for summary judgment provides no help either,
since, as noted by the defendant, in her brief the plaintiff only generally cites to her
exhibit without a pinpoint cite.4 To the extent that the exhibit itself is attacked, and
to the extent that it is impossible to determine the exact portion of the exhibit which
the defendants attack, the objections are OVERRULED.
4

As will be noted in the portion of this opinion dealing with the motion for summary
judgment, the defendants are correct that such references are inadequate. See FED. R. CIV. P.
56(c) (parties must cite “to particular parts of materials in the record.”); doc. 5 at 16 (“All
statements of fact must be supported by specific reference to evidentiary submissions.”), 17
(“Any statements of fact that are disputed by the non-moving party must be followed by a
specific reference to those portions of the evidentiary record upon which the dispute is based.”),
18 (“Each statement of allegedly disputed facts must be followed by specific reference to those
portions of the evidentiary record which both support and contradict the alleged fact.”). HMA
also moves to strike the exhibit in part because of these general cites. (Doc. 69 at 11). While that
is not a basis for striking the exhibit, it is a basis for refusing to consider the evidence cited.
HMA may also be arguing not that the exhibit is inadmissible, but that it does not support
some proposition for which it is cited. Elwood makes that argument where it states:
11. In [p]laintiff’s statement of facts [p]laintiff asserts that a portion of Balmer’s
Notes indicate that he knew [p]laintiff was injured at work. (Doc. 63 ¶¶ 10, 19,
32, 36). Plaintiff’s cite to inadmissible evidence provides no foundation to support
her conclusion in her argument on p. 15 that Balmer had knowledge of [p]laintiff
suffering an on-the-job injury.
12. Also, [p]laintiff cites to the notes on pp. 9 and 13, [p]laintiff’s purported facts
numbered 12, 35, 37 – 39 and in her argument on p.15) regarding the treatment of
others.
(Doc. 67 at 6-7). To the extent that a reference to an exhibit does not support a “fact” proffered
by a party, the court can and will address that issue in its statement of facts on the motion for
summary judgment, without striking the exhibit.
14

As indicated, HMA includes two footnotes which do reference a portion of the
exhibit. The first is footnote 24, which references the portion of the notes which
reads: “Randi Abbott told TC Issac [Henderson] that she started spotting after doing
her process.” (Doc. 69 at 9, n. 24) (quoting 64-3 at 1). The defendant argues that this
statement is hearsay to the extent that it is offered to prove that the plaintiff actually
started spotting after doing her process. The plaintiff does not address this argument
in her response to the motion/objection, saying only that HMA “provides no basis for
calling it [hearsay].” (Doc. 70 at 3). She has failed to carry her burden to show that
this statement is either not hearsay or falls within some exception to the hearsay rule.
Further, the court affirmatively finds that the statement is hearsay that falls within no
exception. To the extent that the plaintiff wishes to use the evidence to show that she
actually was spotting, and when it occurred, the objections are SUSTAINED and the
evidence will be stricken.
The only other specific section noted by HMA appears in footnote 26, which
reads: “She presented a ‘doctor’s note’ on 8/11/11 (the note is dated 8/10/11) that
indicates Randi is pregnant and needs to empty her bladder more often and will need
to be able to use the restroom as needed.”) (Doc. 69 at 9 n. 26) (quoting 64-3 at 2).
Again, the defendant argues that, to the extent that the statement is offered to prove
what was stated in the note, it is hearsay. Again, the plaintiff does not respond to this
15

argument. Because the plaintiff has failed to carry her burden on this issue, and
because the court affirmatively finds that the statement regarding the contents of the
doctor’s note is hearsay, subject to no exceptions, the objection is SUSTAINED. The
statement will be stricken to the extent it is cited to prove the contents of the note.5
Elwood writes: “The portions of Balmer’s notes which he did not draft and the
author of which is unknown, is hearsay.” (Doc. 67 at 7). Assuming that is true,
because the objection does not argue that that portion of the document cannot be
made admissible, it fails. In re Gregg, 2013 WL 3989061 at *2-4.6
E.

The Plaintiff’s Injury Report (Doc. 64-1 at 1)

Like the arguments presented by the defendants to strike the Balmer Notes, the
arguments presented by HMA in opposition to the plaintiff’s injury report also appear
to mainly argue that the report does not support the proposition for which it is cited
in the plaintiff’s brief. (Doc. 69 at 4 (¶1), 5 (¶¶ 2-3)). Again, to that extent, the court
5

To the extent that HMA argues that the exhibit does not support a proposition for which
it is cited, that argument will be addressed in the section of this opinion outlining the facts of the
case. HMA’s remaining argument as to these notes is:
The remaining portions of “Balmer Notes” that were not cited lack foundation, are
based on hearsay, contradict sworn deposition testimony, and/or are
irrelevant/immaterial; they must be stricken.
(Doc. 69 at 11). This vague argument again addresses no specific portion of the exhibit and is
therefore OVERRULED.
6

For the same reason, and in addition to the reasons already cited, Elwood’s similar
argument at paragraph 13 of document 67 fails.
16

will address those arguments when considering which facts to include in its opinion
on the motion for summary judgment. Elwood’s objections include the following
paragraph:
14. The following paragraphs from [p]laintiff’s brief rely on [p]laintiff’s
Exhibit 1 and should be struck or disregarded: See Doc. 63; Opposition
to Elwood’s Statement of Facts, p. 3 (¶¶ 12-16), p. 4 (¶¶ 41-42), p. 5 (¶
48); Opposition to HMA’s Statement of Facts, p. 7 (¶ 48); [p]laintiff’s
Statement of Facts, p. 9 (¶ 8). Plaintiff additionally makes allegations
based on the Injury Report within her brief at page 15 and this reference
should similarly be struck or disregarded.
(Doc. 67 at 7(¶ 14)). As far the court can tell, this paragraph, which is Elwood’s first
paragraph in this section, gives no reason for striking anything. Otherwise, it appears
that the defendants specifically attack the report only to the extent that it is cited to
show that the plaintiff began spotting because she was straining to install doors. (Doc.
67 at 7(¶15); doc. 69 at 4(¶2), 5(¶3).
HMA argues that the report is “double hearsay, no exception applies, and
cannot be used to prove that ‘straining to install doors caused [p]laintiff to experience
bleeding.’” (Doc. 69 at 4). The plaintiff does not respond to this argument, except to
say that HMA “does not explain why it attaches [this] label to the report.” (Doc. 70
at 3-4).
The court disagrees with the plaintiff’s argument that HMA has failed to
explain why the report is hearsay. It identified the report (which is only one page
17

long) and argues that it cannot be used to prove that “straining to install doors caused
[p]laintiff to experience bleeding.” This is a clear reference to three sections of the
report. The first describes the “nature of the injury” as “abdominal strain caused
spotting.” (Doc. 64-1 at 1). The second described the task the plaintiff was doing as
“while straining to install doors noticed spotting.” (Doc. 64-1 at 1). The third notes
that the injury occurred “from straining to install doors.” (Doc. 64-1 at 1). It is clear
that HMA is arguing that, to the extent that these portions of the report are cited to
prove that the plaintiff started spotting because she was straining to install doors, they
are hearsay. The plaintiff has made no attempt to show that the report is not hearsay,
or to show that it falls within some exception to the rule. Further, the court
affirmatively finds that, in the format presented,7 the document is hearsay, falling
within no exception to the rule.

7

One might argue (although no one has) that this document is a business record, falling
with an exception to the hearsay rule. Of course, to fall under that exception, the following must
be shown:
(A) the record was made at or near the time by--or from information transmitted
by--someone with knowledge; (B) the record was kept in the course of a regularly
conducted activity of a business, organization, occupation, or calling, whether or
not for profit; (C) making the record was a regular practice of that activity; (D) all
these conditions are shown by the testimony of the custodian or another qualified
witness, or by a certification that complies with Rule 902(11) or (12) or with a
statute permitting certification; and (E) neither the source of information nor the
method or circumstances of preparation indicate a lack of trustworthiness.
FED. R. EVID. 803(6). No such showing has been made, argued, or even suggested.
18

Even assuming that the report is not hearsay, the report states that it was
completed based upon information provided by the plaintiff. (Doc. 64-1 at 1). The
plaintiff’s conclusion, contained in the report, as to why she began spotting, is
inadmissible expert testimony from a lay witness. See, Wingster v. Head, 318 F.
App’x 809, 815 (11th Cir. 2009) (“[M]edical causation . . . presents a technical and
scientific issue that requires the specialized knowledge of an expert medical
witness.”) (citing Fed. R. Evid. 701, 702; Webster v. Offshore Food Serv., 434 F.2d
1191, 1193 (5th Cir.1970)); E.C. ex rel. Crocker v. Child Dev. Sch., Inc., 3:10-CV759-WKW, 2011 WL 4501560 at *9 (M.D. Ala. Sept. 29, 2011) (“[A] lay witness
[cannot establish medical causation] . . . or provide evidence that could be used as the
basis for an inference of medical causation.”). This argument too was presented by
both defendants. (Doc. 67 at 7; doc. 69 at 5). Again, the plaintiff does not respond to
this specific argument and so has not carried her burden on this issue. The objections
to the report are SUSTAINED, and the report will be stricken to the extent that it is
cited to prove the cause of the plaintiff’s spotting.
F.

The Plaintiff’s EEOC Charge (Doc. 64-4)

The plaintiff cites statements made in her narrative attached to her EEOC
charge. She insists that the charge is properly authenticated and has been signed
under penalty of perjury. However, it has been noted:
19

“EEOC charges, grievances, and claims, including the investigations of
such charges, grievances and claims of the [p]laintiff and other former
or current employees including the position statements of the
complainants and the resolution or settlement of any such charges,
grievances, or claims are inadmissible for a number of reasons,
including on the basis of relevance, a Rule 403 balancing test, and
hearsay.” Frazier v. Ind. Dep’t of Labor, No. IP01–0198–C–T/G, 2003
WL 21254424, at *4 (S.D.Ind. Mar. 17, 2003) (citing Tulloss v. Near N.
Montessori Sch. Inc., 776 F.2d 150, 154 (7th Cir.1985)); see also
Stolarczyk v. Senator Int’l Freight Forwarding, L.L.C., 376 F.Supp.2d
834, 841–42 (N.D.Ill.2005) (noting presumption of inadmissibility with
EEOC charges and refusing to admit the plaintiff’s charges even under
the residual hearsay exception); Walker v. Fairfield Resorts, No.
3:05–0153, 2006 WL 724555, at * 8 (M.D.Tenn. March 21, 2006)
(noting that “an EEOC charge is hearsay and, even though sworn to
under the penalty of perjury, inherently unreliable because the charge is
drafted in anticipation of litigation”) (citation omitted).
Johnson v. AutoZone, Inc., 768 F. Supp. 2d 1124, 1134 at n. 82 (N.D. Ala. 2011)
(Smith, J.); see also, Roxbury-Smellie v. Florida Dep’t of Corr., 324 F. App’x 783,
785 (11th Cir. 2009) (“The statements made by [EEOC interviewees], did not fall into
the public records exception because they were not a factual finding made by the
EEOC investigator, but rather a record of the interviews conducted by the EEOC
investigator. . . . Accordingly, the district court did not abuse its discretion when it
determined the interview notes did not fall within the hearsay exception for public
records.”). The plaintiff does not explain how the charge could be reduced to an
admissible form at trial. The objections to the admissibility of the charge are
SUSTAINED, and the charge will be stricken.
20

G.

Statements About Co-Workers’s Job Duties

The defendants attack the following sections of the plaintiff’s deposition
testimony:
Q. So you’re saying you experienced stress from seeing one pregnant
employee being treated more favorably than you?
A. Yes, because she had lighter duties. They were treating her with
respect on how she was concerned about her unborn child. And still
remaining with difficult tasks for me caused my injury, straining because
of a dysfunctional machine that I reported that was -- needed adjusting.
I mean, just the stress of it all.
Q. And that was Jessica, right?
A. Yes.
Q. What were her lighter duties?
A. Her jobs -- they would give her the easier jobs of her tasks, the ones
that could meet a pregnant woman’s needs.
Q. What processes did she do before she was pregnant?
A. I don’t know the names of them, but just easy stuff like putting a little
seal on, a door seal, just real simple stuff.
Q. Before she was pregnant, what job processes did she work on?
A. She had those and then she had some more harder ones that they
would tell me about. I never seen them.
Q. Who told you about those?
A. Everyone from the zones. They discussed the task and difficulty
21

levels of our jobs and ways to make it better. That’s how changes would
be made is if you discussed it with fellow workers.
Q. So if I understand you correctly, you’re saying Jessica had some
processes that were difficult before she was pregnant?
A. Yes.
Q. What were those processes?
A. I couldn’t tell you the names of them.
Q. And how do you know she had those difficult processes?
A. Just say we had four processes, two out of her four were up there in
the difficulty level, like more exhilarating than the other ones. She’s
pregnant down to two processes, rotating them every two hours, the two
processes, that’s what I mean.
Q. How do you know that?
A. Because I would ask.
Q. Who did you ask?
A. Her.
Q. So did her processes change when she got pregnant?
A. Yes, it become more easier. The further she got along the more
difficult it was for her to do anything.
Q. And what changed?
A. The difficulty level, like her treatment in general.
Q. But specifically with regard to her job duties, what changed?
22

A. The difficulty level of her job, like her processes would become
easier is what I’m trying to say.
Q. And what did you observe or what do you know about her processes
becoming easier specifically?
MR. PARKER: Objection, asked and answered. You can answer.
A. Just -- I’m saying like from two hard processes, two easy processes,
just sticking to two easy ones, not ever having to do the hard ones is
what I’m trying to mean.
Q. And she is the one who told you this was happening?
A. Yes.
MR. PARKER: Objection, asked and answered. You can answer.
A. Just -- I’m saying like from two hard processes, two easy processes,
just sticking to two easy ones, not ever having to do the hard ones is
what I’m trying to mean.
Q. And she is the one who told you this was happening?
A. Yes.
Q. When did she tell you that?
A. I mean, throughout the time that I was there because she noticed the
treatment that I was receiving so she would talk to me.
Q. And who were her supervisors?
A. I can’t remember his name. It was the same team manager but a
different supervisor.

23

Q. So Ricky Sanders was her team manager also?
A. Yeah.
Q. Any other facts that you base your claim on that you were
discriminated based on your pregnancy?
A. That’s it.
(Doc. 62-1 at 24(89)-25(92)). It is clear from this testimony that the plaintiff had no
personal knowledge of the other processes that “Jessica” was doing. Elwood argues
that the only basis for the plaintiff’s claim that Jessica (last name unknown) was
treated more favorably than her is other persons’ inadmissable hearsay statements that
Jessica performed lighter duties during that time.
The plaintiff argues that these statements are not hearsay because Rule
801(d)(2) of the Federal Rules of Evidence provides that a statement offered against
an opposing party, as this one is, is not hearsay if it is made by the party’s “employee
on a matter within the scope of that relationship and while it is existed.” The court
notes that this rule only protects such statements once a proper foundation is laid. See,
Champ v. Calhoun Cnty. Emergency Mgmt. Agency, 226 F. App’x 908, 912 (11th Cir.
2007)(statements inadmissible if “made by someone [only] generally identified as an
agent or employee”). There is no foundation for citing the statements of “[e]veryone
from the zones.” Such a vague reference does not satisfy the plaintiff’s burden.

24

Similarly, although “Jessica” is at least identified, she is only identified by a first
name, and, although she, like the plaintiff, performed “processes,” her job title is not
identified in the testimony, and the plaintiff has pointed to no other evidence which
would provide a foundation for her statement.8 Further, the testimony itself is vague
as to the exact nature of the processes “Jessica” performed and how they were
“easier.” The plaintiff even says: “I couldn’t tell you the names of them,” and only
refers to them with phrases such as the “easy ones.” No proper foundation is laid for
the admission of these statements either. See, Harrison v. Formosa Plastics Corp.
Texas, 776 F. Supp. 2d 433, 441 (S.D. Tex. 2011) (“Harrison does not identify the
names or job titles of any of the ‘current Formosa employees’ who allegedly made the
statements in question. Harrison also fails to establish that these employees were
authorized to speak on behalf of Formosa, or that the statements were otherwise made
during the course of the speakers’ employment.”). The statements of these employees
are hearsay and will be stricken.9
II.

THE MOTIONS FOR SUMMARY JUDGMENT
A.

Standard

8

Indeed, the plaintiff admits that she did not work in the same zone or perform the same
processes as Jessica. (Doc. 61 at 14-15 (¶ 51) (fact admitted in the plaintiff’s response to motion
for summary judgment (doc. 63))). Jessica’s statements are therefore also not relevant.
9

HMA’s remaining arguments appearing at doc. 69 pp. 13-15, will be dealt with when
the court addresses the statement of facts section of the motion for summary judgment.
25

Under Federal Rule of Civil Procedure 56, summary judgment is proper if there
is no genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (“[S]ummary judgment is proper if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”) (internal quotation
marks and citation omitted). The party requesting summary judgment always bears
the initial responsibility of informing the court of the basis for its motion and
identifying those portions of the pleadings or filings that it believes demonstrate the
absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the
moving party has met its burden, Rule 56(e) requires the non-moving party to go
beyond the pleadings in answering the movant. Id. at 324. By its own affidavits – or
by the depositions, answers to interrogatories, and admissions on file – it must
designate specific facts showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which
are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All
reasonable doubts about the facts and all justifiable inferences are resolved in favor
of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might
26

affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. If the evidence presented by the non-movant to rebut the moving party’s
evidence is merely colorable, or is not significantly probative, summary judgment
may still be granted. Id. at 249.
How the movant may satisfy its initial evidentiary burden depends on whether
that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden
of proof on the given issue or issues at trial, then it can only meet its burden on
summary judgment by presenting affirmative evidence showing the absence of a
genuine issue of material fact – that is, facts that would entitle it to a directed verdict
if not controverted at trial. Id. (citation omitted). Once the moving party makes such
an affirmative showing, the burden shifts to the non-moving party to produce
“significant, probative evidence demonstrating the existence of a triable issue of fact.”
Id. (citation omitted) (emphasis added).
For issues on which the movant does not bear the burden of proof at trial, it can
satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16.
First, the movant may simply show that there is an absence of evidence to support the
27

non-movant’s case on the particular issue at hand. Id. at 1116. In such an instance, the
non-movant must rebut by either (1) showing that the record in fact contains
supporting evidence sufficient to withstand a directed verdict motion, or (2)
proffering evidence sufficient to withstand a directed verdict motion at trial based on
the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant
may no longer rest on mere allegations; instead, it must set forth evidence of specific
facts. Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this
position may use to discharge its burden is to provide affirmative evidence
demonstrating that the non-moving party will be unable to prove its case at trial.
Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering
evidence sufficient to withstand a directed verdict at trial on the material fact sought
to be negated. Id.
B.

Facts
1.

HMA and Elwood

HMA employs approximately 4,000 individuals at its Lincoln, Alabama plant.
Certain employees, called “Process Associates” and “MSTs” by the parties, work on
the assembly line, and are engaged in the daily tasks of assembling Honda Odyssey,
Pilot, Accord, and Ridgeline vehicles. Process Associates perform “processes.”
Although not specifically defined by the parties, based upon their usage of the term
28

in their filings, it is clear that a “process” is a job, comprised of several steps, which
a worker does over and over. Some workers at HMA are permanent employees of that
company. Others are contingency workers provided by an outside staffing agency.
Elwood serves as a staffing agency for HMA, and provides a contingent
workforce based on the labor needs of HMA. Elwood associates work with HMA
associates to perform their production processes. Individuals who work directly for
HMA have no relationship to Elwood. They are subject to different terms and
conditions of employment than Elwood associates who work for HMA. (Doc. 59-5
at 3). HMA can bring information to Elwood about Elwood associates, which could
be taken into consideration on employment issues. (Doc. 39-2 at 16(52)). However,
Elwood is responsible for hiring, disciplining, compensating, and terminating its
temporary associates assigned to HMA. Elwood employs on-site supervisors at HMA
that supervise Elwood’s temporary associates assigned to work at HMA. HMA plays
no role in the administration of FMLA leave to Elwood associates. It is undisputed
that, at all times during an assignment, Elwood associates remained employees of
Elwood and could have their assignment ended only by Elwood.
Elwood associates who complete a certain number of hours, fulfill attendance
requirements, and have satisfactory performance, may submit an application for
employment at HMA, but are not guaranteed a position. Other than to provide HMA
29

with performance evaluations, Elwood has no role in the permanent placement of
employees with HMA. (Doc. 39-2 at 16(53)).
2.

Employment Policies of HMA and Elwood

At all relevant times, HMA has had in effect an Equal Employment
Opportunity Policy and Mutual Respect Policy, both of which strictly prohibit any
form of discrimination and harassment in all terms and conditions of employment,
including, but not limited to, discrimination and harassment based upon pregnancy,
sex, race, and disability. The policies require an associate that believes he or she has
been the target of, or who has observed, any form of discrimination or harassment to
immediately report it to his or her Team Manager, Department Manager, an Associate
Relations Representative, or the Department Manager of Human Resources. The
policies also prohibit any form of retaliation against an associate who reports a
concern about discrimination or harassment. The policies are found in HMA’s
Associate Handbook, and are distributed to associates upon hire.
Elwood trains all new hires assigned to HMA on discrimination and harassment
and how to report such claims. At the outset of their assignment, Elwood associates
receive an Assignment Guidebook and in-person training, which explains HMA’s
Mutual Respect Policy and tells them to whom they must report concerns. Elwood
associate concerns must be immediately reported to the Elwood On-Site Manager or
30

On-Site Supervisor, the HMA Team Manager, or an HMA Associate Relations
Representative. Elwood’s Assignment Guide Book (“the Guide Book”), which is
provided to all new Elwood hires assigned to HMA, prohibits harassment on any
unlawful basis as well as unlawful retaliation. The Guide Book contains a disclaimer
making clear that: “[a]ssignments can end at any time;” Elwood “reserves the right
to alter its policies and procedures at any time without notice;” and “[n]othing in this
guide book should be considered a contract or a guarantee of employment by either
Elwood Staffing and/or HMA. All HMA . . . workforce assignments are continent and
based strictly upon a business need for certain types of manpower.” (Doc. 36-3 at 17).
It is undisputed that the Guide Book in no way establishes any obligation on
Elwood’s part to pay for time off work due to medical visits or to pay medical bills
for on-the-job injuries; it only speaks to the issue in terms of requiring that employees
report injuries immediately.
HMA provides a restriction placement search for associates who may be
ADA-qualified or have permanent restrictions due to an occupational injury. HMA
only creates so called “light duty” assignments for associates who have suffered
compensable on-the-job injuries. (Doc. 62-5 at 3).10

10

The plaintiff, in response to the motion for summary judgment, writes: “[HMA] has
admitted that it provides light duty only to those who suffer on-the-job injuries.” (Doc. 63 at 12).
31

Elwood provides light duty in instances where its employees suffer an
on-the-job injury, of which it is made aware, who need restrictions in order to
continue working. (Doc. 36-4 at 19(65)). Additionally, Elwood engages in an
interactive process to determine whether it can reasonably accommodate qualified
individuals with disabilities as defined by the Americans With Disabilities Act. (Doc.
59-5 at 3). With regard to non-work-related medical conditions, including pregnancy,
Elwood tries to work with its client locations to see if the associate’s personal
restrictions can be met, but it does not have a formal “light duty” program for
personal medical restrictions. (Doc. 36-4 at 20(66)). Elwood handles requests for
personal medical restrictions related to pregnancy in the same manner it handles
requests for personal medical restrictions related to other non-work-related condition.
(Doc. 59-5 at 3).11, 12

11

Alan Balmer was Elwood’s project plant manager at HMA. Balmer testified that he was
unaware of any employee who had “been accommodated because of their pregnancy.” (Doc. 36-4
at 20(66)).
12

The plaintiff disputes the statements in this paragraph saying:

12-16. Disputed. As set out at length in [p]laintiff’s statement of facts, [p]laintiff
was not provided light duty after she suffered a work injury, Elwood did not
accommodate [p]laintiff because of her disability or pregnancy, did not treat the
restrictions required because of [p]laintiff’s pregnancy and the complications to
her pregnancy because of a work injury in the same manner it handled the work
restrictions of Josh Wade, a male worker, and [p]laintiff’s condition constituted a
disability under the expanded scope of the ADA in light of the 2008 Amendments.
(Pl.’s Depo., pp. 49-51, 63, 69-71, 104-05, 107-08, 109-10, 125-26, 129, 142-43,
145, 164, 210-12, 219-21; Pl.’s Exhibit 1; Pl.’s Ex. 2; Pl’s Ex. 3; Pl.’s Ex. 4;
32

3.

The Plaintiff’s Assignment at HMA

The plaintiff began working at the HMA facility on or about July 15, 2010, in
the position of “MST” or manufacturing support technician.13 She was assigned to
work in HMA’s Assembly Frame Department, Line 2, Zone 23. She estimates another
eight to ten Elwood employees, and eight to ten HMA employees, worked alongside
her during her shift.
MSTs generally were assigned four different two-hour processes each shift.
The processes were rotated between employees “for ergonomical purposes because
being on certain processes for a certain period of time prolonged can cause serious
damage.” (Doc. 39-1 at 76(295)). Accordingly, every 2 hours the plaintiff would stop

Balmer Depo., p. 60, 62).
(Doc. 63 at 3). This general denial of several facts is inadequate. The court’s summary judgment
scheduling order clearly states:
The non-moving party’s response to the moving party’s claimed undisputed facts
shall be in separately numbered paragraphs that coincide with those of the moving
party’s claimed undisputed facts. Any statements of fact that are disputed by the
non-moving party must be followed by a specific reference to those portions of
the evidentiary record upon which the dispute is based. All material facts set forth
in the statement required of the moving party will be deemed to be admitted for
summary judgment purposes unless controverted by the response of the party
opposing summary judgment.
(Doc. 5 at 17) (emphasis in original). The court will not search through the record in an attempt
to determine which evidence disputes what fact.
13

As noted above, her position is called by the parties both “Process Associate” and

“MST.”
33

working on one process and rotate to another. The plaintiff testified that the process
rotation schedule was “supposed to be generated by [a] computer program,” but that
during her assignment it was done “[w]ith physical changes . . . to it.” (Doc. 39-1 at
76(294)). She explained that “physical changes” meant “[r]emoving people off line
through the system to make sure the rotation was still balanced out.” (Doc. 39-1 at
76(294)). Elwood plays no role in the process-rotation schedule or in the assignment
of processes.14
At different times while she was at HMA, the plaintiff worked on three models
of vehicles: Accords, Pilots, and Ridgelines. She was certified to perform five
processes which she identified as: “left front door,” “left roof rail,” “assist side cowl
top,” “installing DVD players,” and “placing vehicle identification numbers on the
vehicles.” Her processes required her to lift, bend, and climb in and out of vehicles
on a rotating basis. She did these same 5 processes the entire time she worked in the
HMA plant. (Doc. 39-1 at 16(56-57)). As to what processes her co-employees were
certified, or “signed off on” to perform, the plaintiff stated: “Like we all signed off
on a list, but unless the same person did the same thing you wouldn’t know it because

14

The plaintiff disputes this fact, saying that she “witnessed Jessica . . . being placed on
easier processes during her pregnancy.” (Doc. 63 at 3). First, as discussed above, evidence
regarding Jessica’s processes will be stricken. Second, whether or not Jessica was placed on
easier processes does not prove that Elwood played a role in such assignment. Indeed, it is
unclear whether Jessica was employed by Elwood or HMA.
34

you wouldn’t be seeing it assigned.” (Doc. 39-1 at 76(294)).15 While working at
HMA, her work was overseen by her Team Coordinator, Isaac Henderson, who was
an HMA employee and white. Henderson reported to Ricky Sanders, Team Manager,
who was also a white HMA employee.
Elwood too had direct supervision over the plaintiff while she worked at the
HMA plant. Elwood employed Alan Balmer, who is white, as a project plant manager
at HMA. Additionally, Elwood employed several persons in the position of “On-Site
Supervisor” (“OSS”), including Casey Green, Robin Webb, B.B. Campbell, and
Amanda Souza. Green, Webb, Souza, and Campbell are all white. On-Site
Supervisors are responsible for administering Elwood’s policies and overseeing the
staffing program on a daily basis. Balmer stated in his deposition that only “Elwood,”
and particularly Green, Webb, Souza, Campbell, and himself, had the authority to
issue discipline to the plaintiff. (Doc. 39-2 at 16(52-53)).
When the plaintiff began her position at HMA she understood that she was not
guaranteed employment with HMA. She received Elwood’s Assignment Guidebook
and received training on HMA’s Mutual Respect Policy and reporting procedures.
She understood that she could report any concerns to Elwood’s On-Site Supervisors,

15

The plaintiff testified that she knew that “Jessica” was given easier work to do when
she was pregnant because Jessica told her so. (Doc. 39-1 at 24(87)-25(92)). This evidence will be
stricken for the reasons noted above.
35

her HMA Team Manager or HMA Associate Relations.
4.

Plaintiff Requests Light Duty Due to Pregnancy

Plaintiff has no complaint about her treatment by Elwood or HMA prior to
April 2011. At that time, she learned that she was pregnant and informed Henderson
shortly thereafter. Thereafter, before July 21, 2011, but after she became pregnant,16
she “complained [to Henderson] about . . . being rotated to do doors twice a day when
[she] had five . . . processes.” (Doc. 39-1 at 19(69)). She complained “because it’s
difficult when you’re doing doors twice. It really is strenuous.” (Doc. 39-1 at 19(69)).
Henderson told her that “if [she] had any complaints about the activity being too
difficult that [she] needed to talk to Ricky Sanders.” (Doc. 39-1 at 19(69)). She spoke
to Sanders and “requested to take it a little bit easy on the doors because I was
pregnant and it was difficult.” (Doc. 39-1 at 19(69)). In response, Sanders told her
that “if [she] didn’t like it that [she] could go home and go home means quit.” (Doc.
39-1 at 19(69)).17
16

The plaintiff stated in her deposition that she had this conversation “before [her]
injury.” (Doc. 39-1 at 19(69)).
17

The plaintiff proffers a fact which states that this statement was made “[w]hen Plaintiff
requested accommodation because of her injury.” (Doc. 63 at 13). That is incorrect. The plaintiff
was clear in her deposition that this comment was made before her injury. However, elsewhere in
her deposition she recounts nearly the exact same conversation that she says occurred after the
incident of July 21, 2011. (Doc. 39-1 at 29(106-107)). The court assumes that the plaintiff is
referring to two separate conversations. The plaintiff also offers the following facts:
35. Elwood gave Josh Wade workers’ compensation benefits but refused them to
36

5.

The Events of July 21, 2011

The plaintiff states that she was able to perform all functions of her job up until
July 21, 2011. (Doc. 39-1 at 28 (103-104)). On July 21, 2011, the plaintiff began her
shift at 4:30 p.m. Late in her shift, the plaintiff had to strain while installing doors on
a Ridgeline vehicle. She later went to the restroom and discovered that she was
experiencing vaginal bleeding. (Doc. 39-1 at 38(143)).18 She reported the bleeding
to Henderson and filed an injury report.19 Henderson told her to go to the on-site
[p]laintiff. (Pl.’s Ex. 3).
36. Although Balmer pled ignorance of [p]laintiff’s work injury, his notes indicate
that he was aware of the nature and cause of her injury, as do [d]efendants’
documentation of [p]laintiff’s injury. (Pl’s Ex. 3, Pl.’s Ex. 1).
(Doc. 63 at 13). Exhibit 3 is Balmer’s notes. (Doc. 64-3). Exhibit 1 is the aforementioned “injury
report.” (Doc. 64-1). As noted above, document 64-1 will be stricken to the extent that it is cited
to prove the cause of the plaintiff’s bleeding was an injury at work. The vague and general
reference to exhibit 3, without pinpoint citation or further explanation, is insufficient. Rule 56 of
the Federal Rules of Civil Procedure requires citation “to particular parts of materials in the
record.” FED. R. CIV. P. 56(c)(1)(A). Further, this court’s summary judgment scheduling order
has similar requirements. Doc. 5 at 16 (“All statements of fact must be supported by specific
reference to evidentiary submissions.”), 7 (“Any statements of fact that are disputed by the
non-moving party must be followed by a specific reference to those portions of the evidentiary
record upon which the dispute is based.”), 18 (“Each statement of allegedly disputed facts must
be followed by specific reference to those portions of the evidentiary record which both support
and contradict the alleged fact.”). The proffered facts will not be included.
18

The plaintiff proffers the following fact: “5. Plaintiff was injured while working
because of straining to put on doors. ([Doc. 39-1 at 38(142))].” (Doc. 63 at 8). The plaintiff
testified that she was straining to put on the doors, and then afterwards went to the restroom and
noticed she was bleeding. The citation does not support the assertion that she started bleeding
because of the straining. The fact will not be included.
19

This fact, offered by the plaintiff, originally included a statement that she reported “that
she was bleeding from her vagina because of the straining, and filed an injury report.” (Doc. 63 at
37

medical clinic, and the plaintiff complied.20 The on-site clinic said that it could not
adequately meet the needs of a pregnant woman and recommended that the plaintiff
seek emergency treatment.21
The plaintiff was seen by her outside doctor that night. The plaintiff testified
that her doctor gave her “[j]ust basic treatment to make sure that everything was
okay.” (Doc. 39-1 at 56(217)). The doctor “said I could go back to work, just
whatever that I was doing don’t do that again, like take it real easy, let them know
that it’s an issue.” (Doc. 39-1 at 39(149)). The doctor told her that “whatever [she]
did to stress it and strain it, don’t do it for a few days.” (Doc. 39-1 at 83(323)).
She reported back to work the next day before beginning her shift at the regular
time. However, from then on her ability to work was affected. She stated that
The two processes that really gave me trouble was putting the door on

8 (citing 39-1 at 38(143)). The citation does not support this assertion.
20

This fact is offered by the plaintiff. It originally included the assertion that the plaintiff
informed Henderson of “the injury.” (Doc. 63 at 9) (citing 39-1 at 38(145)). However, the
citation the plaintiff gives does not support this assertion. Accordingly, that portion of the fact
was not included.
21

The plaintiff proffers: “10. Although Alan Balmer denied in deposition that [p]laintiff
suffered a workplace injury, Balmer’s notes, which were composed while [p]laintiff was out on
FMLA leave, indicate he knew [p]laintiff’s injury was work related.” (Doc. 63 at 9)(citing Doc.
64-3 generally). The failure to provide a pinpoint citation, or to explain in what way these notes
“indicated” anything, prevents the court from including the fact. Similarly, the court will not
include the plaintiff’s proffered fact number 12 which states: “The notes also indicated that Josh
Wade performed light duty responsibilities at another client company while he had restrictions.”
(Doc. 63 at 9)(citing 64-3 generally).
38

and installing DVD players because it involved me jumping in and out
of the back seat and immediately squat to put on a door seal and that was
strenuous car after car for two hours.
(Doc. 39-1 at 29(107)). She testified:
I was told by medical doctors that I need to take it easy for a little while,
too much stress and strain while pregnant can cause complications. The
nurses that seen me on site the next day told me that I was clear to go or
whatever, that it says that I needed -- had limitations. I gave those
limitation[s] to Isaac, he reviewed them with Ricky and that day I was
still on doors, Ridgeline. I mean, it was all the same, nothing ever
changed.
Q. So you say you had work restrictions the day you went back to work
on July 22nd?
A. Yes.
Q. Where did you get those from?
A. From my actual ob/gyn. They were who saw me in labor and delivery
because after a certain point in time you go to them instead of ER.
Q. What were those restrictions?
A. Easy on the bending, the lifting of the door, any of that. I need to not
do that for a little while to make sure I didn’t further complicate things.
Q. And that was due to the pregnancy?
A. Yes. Like the strain from the door caused me to stress my pregnancy
and caused me to bleed.
Q. So what accommodations did you need in your job?
A. Just easy on the lifting part.
39

(Doc. 39-1 at 28(104-105)).
The plaintiff was not undergoing any kind of “treatment” for anything related
to the spotting except normal prenatal care. (Doc. 39-1 at 56(217)). She had no
further complications and nothing else happened during that time. She was given no
medication and had only one follow up a week later to make sure the bleeding had
stopped. (Doc. 39-1 at 56(217)).
The plaintiff states that the day she came back to work “I had to report to Casey
or Robin, whichever one it was, and then go out on the line and that’s when I said
who is going to be paying the medical bill.” (Doc. 39-1 at 30(111)). The following
exchange took place in her deposition:
Tell me about your conversation with her about the Workers’ Comp
benefits, payment for medical bills.
A. When I received an on-the-job injury I left and they told me if I was
to leave, because it was during the middle of the shift, that I would
receive a point or two and that I told her about the medical staff there
said that they cannot meet the demands of a pregnant woman, that I need
to seek emergency attention, so I left to do so.
Q. When did the medical staff there say that?
A. The night of the injury.
Q. And what was her response?
A. The following day was her response on the workman’s comp paying
the bills or whatever, the medical bills.
40

Q. What did she say?
A. She said that she’ll get back to me. That’s all I heard.
(Doc. 39-1 at 15(50-51)). Neither HMA nor Elwood ever treated the July 21 incident
as an on-the-job injury; a First Report of Injury was never completed.22
6.

The Plaintiff Provides Work Restrictions

The plaintiff stated that her request for light duty was “to keep [her] from
further stressing [her] pregnancy,” and to prevent “complications.” (Doc. 39-1 at
44(167), 53(203), 28(104)). Balmer asked the plaintiff to bring in specific information
about her request for “light duty.”23 The plaintiff stated that “it upset me that I had to
get restrictions period. They knew the circumstances of being pregnant and what
comes along with it starting with bathroom and then going to [sic] they asked for the
light duty restrictions.” (Doc. 39-1 at 44(167)). She thinks that Elwood should have
just known what her light duty restrictions were, “[a]s any other pregnant woman
22

The plaintiff proffers: “Plaintiff’s notes indicate that instead of providing her assistance
with her injury, [d]efendants expressed skepticism that the injury was caused at work. (Pl.’s Ex.
2).” (Doc. 63 at 13). As plaintiff’s notes will be stricken, this fact will not be included.
23

The plaintiff understands that light duty can mean varying things for different
individuals; for instance, it could include required sit-down breaks, rest breaks, and lifting
restrictions of varying weight. (Doc. 39-1 at 44(166-167)). There may have been some confusion
as to the applicability of the phrase “light duty” to the plaintiff’s situation. Balmer stated in his
deposition that, at Elwood, “light duty refers to a situation where there’s a workplace injury.”
(Doc. 39-2 at 13(41)). At several points in his deposition, Balmer “objected” to the use of the
phrase “light duty.” Elwood and HMA did not consider this to be a workplace injury.
Accordingly, although it is not clear from the record, this may have been another reason that
Balmer wanted specifics.
41

working at Honda and getting certain limitations they follow the same guidelines.”
(Doc. 39-1 at 44(167)).
On August 11, 2011,24 the plaintiff provided Elwood with a completed
Certification of Health Care Provider for the purposes of Family and Medical Leave
Act (“FMLA”) administration. The Certification indicated that the plaintiff was
“pregnant with a due date of 11/29/11,” and that she could “work only light duty at
this time.” (Doc. 36-3 at 26). On or about August 16, 2011, the plaintiff’s doctor
wrote her restrictions limiting her to “no lifting over 25 pounds, no climbing in and
out of cars and no bending.” (Doc. 36-3 at 29).25 When asked in her deposition if the
restrictions were due to her pregnancy, she stated: “Yes. Like the strain from the door
caused me to stress my pregnancy and caused me to bleed.” (Doc. 39-1 at 28(105)).
That same day, after receiving the plaintiff’s letter from her physician, Webb sent
Ricky Sanders an email which read:
Which of the following processes below would not require Randi to left

24

The record is unclear as to what, if anything, occurred between July 22 and August 11,

2011.
25

The plaintiff proffers the following fact: “17. The restrictions [p]laintiff was placed
under were not merely because she was pregnant but because of the injury she suffered.” (Doc.
63 at 10 (citing 39-1 at 28(104)). The citation provided by the plaintiff does not support this fact.
It will not be included. The plaintiff also proffers: “Defendants were aware before [p]laintiff’s
assignment ended that an injury caused [p]laintiff’s pregnancy-related impairment.” (Doc. 63 at
10 (citing generally to doc. 64-3 (Balmer’s notes)). Again, the general reference to this evidence,
without pinpoint citation or explanation, is insufficient. This fact will not be included.
42

25 pounds or more? OR to climb in and out of the vehicle? OR to bend?
In other words . . . Which ones could she perform with the named
restrictions?
Thanks!
Pilot:
Right Side Roof Rail
Assist Side Cowl Top
Left front door
RES & AT Labels
Ridgeline:
Left front door
Right Roof Mold
(Doc. 39-2 at 37). Again, that same day, Sanders responded: “Maybe AT Label. But
she would have to bend over to install some of the labels. So, really none.” (Doc. 39-2
at 37).
Henderson and Sanders both stated in their affidavits that they are familiar with
the following processes performed within the plaintiff’s zone: Left Front Door, Right
Roof Rail, Assist Side Cowl Top, Right Roof Mold, RES, and AT Label. (Doc. 62-3
at 4; 62-4 at 5). They both stated that “[a]ll of these processes require the associate
performing them to bend. Most of these processes require the associate to bend, lift,
and/or climb in or out of vehicles.” (Doc. 62-3 at 4-5; 62-4 at 5).
The plaintiff agreed that her “regular job duties as they were then in AF
required some amount of lifting 25 pounds and some amount of climbing in and out
43

of cars and bending.” (Doc. 39-1 at 54(206)) (emphasis added). One of these
processes, installing DVD players, required her to climb in and out of cars. (Doc. 391 at 53(205)). She agreed that this was a process she could not do. (Doc. 39-1 at
53(205)). When installing doors, she would have to lift weights up to and greater than
25 pounds. (Doc. 39-1 at 53(205)). She also testified that “[t]he bending had part of
the same process. It was putting on the door seal in the same DVD process.” (Doc.
39-1 at 53(205)). When asked to identify a job in her zone, which was not one of her
regular jobs, but which she felt she could have done with her restrictions, the plaintiff
identified putting vehicle identification numbers on vehicles. (Doc. 39-1 at 29(107)).
The following exchange took place in the plaintiff’s deposition:
Q. So Robin and Casey would not allow you to work light duty even
though they were aware you were suffering from an injury?
A. All of them said that they couldn’t find anything at Honda to place
me on a lighter duty restriction, they couldn’t meet those
recommendations. So I asked if I could be placed somewhere else that
was other than Honda and still be able to come back to Honda after my
FMLA leave. I never got anything.
(Doc. 39-1 at 56(215)). In her deposition, she was clear that she did not know what
HMA did to try to accommodate her restrictions. (Doc. 39-1 at 81(316)).
At the time of the events at issue in this action, Kimberly White was employed
by HMA as an Associate Administrator of Associate Relations at the plant. (Doc. 62-

44

5 at 2). Her job included various human resources functions. (Doc. 62-5 at 2). In her
affidavit she stated:
Elwood informed me that Ms. Abbott’s Team Manager and Team
Coordinator had reviewed Ms. Abbott’s work restrictions and the
production processes she was required to perform . . . and concluded that
Ms. Abbott could not perform her assigned processes with her personal
restrictions. Because Ms. Abbott was neither ADA-qualified nor
permanently restricted due to an occupational injury, a restriction
placement search outside of her assigned zone was not performed.
(Doc. 62-5 at 7-8).
On August 17, 2011, Balmer e-mailed the Oxford Elwood Branch to see if
there were any available positions with other clients which would meet the plaintiff’s
personal medical restrictions. (Doc. 59-5 at 4). He then called the branch office and
learned that there were no such assignments available. (Doc. 59-5 at 4). Balmer also
sent an e-mail to White asking if there were any other positions at HMA where the
plaintiff could work within her restrictions. White responded that HMA could not
accommodate the plaintiff’s specific personal medical restrictions. The plaintiff
specifically inquired with Elwood about a job as a receptionist that she thought she
could do with her restrictions, but Elwood told her that “it couldn’t meet [her]
restrictions either.” (Doc. 39-1 at 43(164-165)).
Because the plaintiff could not perform her processes at HMA, and because
Elwood had no other positions available which could meet her personal medical
45

restrictions, she was approved to take FMLA leave based on her FMLA Certification.
(Doc. 59-5 at 4).

Elwood approved the plaintiff’s request for FMLA leave

associated with her pregnancy starting August 15, 2011, and she received twelve
weeks of FMLA leave. The extent of her FMLA retaliation claim is that she was
required to take her FMLA leave “too early,” which meant she did not have leave
available to cover her recovery time after childbirth.
7.

Plaintiff Exhausts Her FMLA Leave

On November 9, 2011, Balmer informed the plaintiff that she had exhausted
her FMLA leave. (Doc. 39-1 at 55(210)).26 The plaintiff requested an extension of
FMLA unpaid leave beyond her 12 weeks which was not granted. (Doc. 39-1 at
34(129)). It was the plaintiff’s understanding at that point that Elwood would allow
her to return to work if she could do her regular job duties, but she could not because
she was still pregnant. (Doc. 39-1 at 55(210)). The plaintiff told Balmer that she was
“more than happy to work under the same guidelines that I had already asked about,
the restrictions up until [the birth of her child]. So I was more than glad to work up
until that date. . . . [w]ith my restrictions.” (Doc. 39-1 at 55(211)). Balmer told her
that she could not work at HMA with her restrictions, and Elwood then ended her

26

It is undisputed by the plaintiff that Balmer was the decisionmaker with regard to the
ending of the plaintiff’s HMA assignment when she could not return from FMLA leave.
46

assignment.
The plaintiff made clear to Balmer that she was scheduled for a C section
approximately two weeks after her FMLA leave expired. She told Balmer that her
recovery period would be over in February 2012, when her restrictions would be
lifted. Balmer told the plaintiff that if she wanted to be considered for future
assignments with Elwood, she would need to contact the Oxford branch office.
Balmer further instructed the plaintiff that, if she wanted to return to work at HMA,
she would need to provide information from her physician that her restrictions had
changed.27
The plaintiff gave birth to her child on November 22, 2011. She was released
to work full duty in February 2012. At that time, the plaintiff was on “inactive” status

27

The plaintiff proffers that “Balmer informed [p]laintiff she would be terminated if she
did not return to work without restriction.” (Doc. 63 at 10 (citing doc. 39-1 at 55(210) (the
plaintiff’s deposition)). The citation does not support that proffered fact. In his deposition,
Balmer stated:
I explained that her 12 weeks of FMLA leave had expired, and inquired if –
inquired if her personal medical restrictions had been lifted so that she could
return on assignment. And she indicated that it had not. As a result, I notified her
that her assignment at HMA had been ended and that if she wanted to be
considered for future assignments with Elwood Staffing that she would need to
produce -- well, that she would need to contact the Oxford branch office. And that
specifically if she wanted to come back to assignment at HMA that she would
need to provide information from her personal medical physician that her
restrictions had changed.
(Doc. 39-2 at 18(60-61)).
47

with Elwood but would be eligible for assignment upon contacting Elwood to update
her file. The plaintiff contacted the Oxford branch office in February 2012, and
informed it that her restrictions had been lifted and that she was available to work.
(Doc. 39-1 at 55(212), 57(219)). She called back a few weeks later to ask if there
were any positions available for her and was told “they would have to get back with
[her] on that.” (Doc. 39-1 at 57(221)). In her affidavit, the plaintiff states that, in May
2013, she “contacted the Montgomery office of Elwood Staffing Services and
requested to be placed back on active status.” (Doc. 64-5 at 1). She states that she
“received an email from Elwood on May 15, 2013 informing [her] that Elwood would
contact [her] when ‘an opening comes available that matches your skills and work
experience.’” (Doc. 64-5 at 1-2). She states that “Elwood has not contacted me since
receipt of the May 15 email.” (Doc. 64-5 at 2).
The plaintiff has never contacted anyone at HMA regarding her restrictions
being lifted, or her ability to work. (Doc. 39-1 at 82(318); doc. 62-5 at 8). It is
undisputed that HMA played no role in any attempt by the plaintiff to be assigned to
another Elwood client company.
In her deposition, the plaintiff stated that her condition “wasn’t a disability, it
was pregnant and on-the-job injury, I wasn’t disabled. I was at all times physically
able to work with requirements and restrictions.” (Doc. 39-1 at 28(103)). She never
48

considered herself disabled when she was at HMA. (Doc. 39-1 at 28(103)).28
8.

Male Employees Given Light Duty

The plaintiff identified Josh Wade as a male associate who she believes was
provided a light duty assignment. (Doc. 39-1 at 18(64)).29 Wade was an Elwood
28

The plaintiff disputes the statements in this paragraph saying:

12-16. Disputed. As set out at length in [p]laintiff’s statement of facts, [p]laintiff
was not provided light duty after she suffered a work injury, Elwood did not
accommodate [p]laintiff because of her disability or pregnancy, did not treat the
restrictions required because of [p]laintiff’s pregnancy and the complications to
her pregnancy because of a work injury in the same manner it handled the work
restrictions of Josh Wade, a male worker, and [p]laintiff’s condition constituted a
disability under the expanded scope of the ADA in light of the 2008 Amendments.
(Pl.’s Depo., pp. 49-51, 63, 69-71, 104-05, 107-08, 109-10, 125-26, 129, 142-43,
145, 164, 210-12, 219-21; Pl.’s Exhibit 1; Pl.’s Ex. 2; Pl’s Ex. 3; Pl.’s Ex. 4;
Balmer Depo., p. 60, 62).
(Doc. 63 at 3). This general denial of several facts, with the inclusion of argument, is inadequate
to dispute the defendants’ proffered facts. The court’s summary judgment scheduling order
clearly states:
The non-moving party’s response to the moving party’s claimed undisputed facts
shall be in separately numbered paragraphs that coincide with those of the moving
party’s claimed undisputed facts. Any statements of fact that are disputed by the
non-moving party must be followed by a specific reference to those portions of
the evidentiary record upon which the dispute is based. All material facts set forth
in the statement required of the moving party will be deemed to be admitted for
summary judgment purposes unless controverted by the response of the party
opposing summary judgment.
(Doc. 5 at 17) (emphasis in original). The court will not search through the record in an attempt
to determine which evidence disputes what fact.
29

She also discusses Carlos Fields and Gary Pitts at this section of her deposition. She
does not reference these individuals in her argument, so the court will not discuss them here. The
plaintiff offered the following fact, which is not supported by the citation given and will not be
included: “27. Plaintiff complained to the EEOC before her employment ended that she was
being forced to use her FMLA leave though she had requested light duty. (Pl.’s Depo., pp.
49

employee who broke his foot while working at HMA. It is undisputed that this was
a workers’ compensation covered on-the-job injury at HMA. Elwood provided him
a light duty assignment, placing chips in a box, at another client company “that had
nothing to with Honda.” (Doc. 39-1 at 44(168)).
9.

No Complaints of Discrimination

It is undisputed that the plaintiff understood that, if she experienced unlawful
treatment, she should report her concerns to an OSS, her HMA Team Coordinator, her
HMA Team Manager, or HMA’s Human Resources personnel. Still, the plaintiff
never made a complaint of pregnancy, sex, race, or disability discrimination or
harassment under HMA’s Mutual Respect Policy. (Doc. 62-3 at 8; 62-4 at 9; 62-5 at
10). The following exchange took place in the plaintiff’s deposition:
Q. Did you ever complain to anyone at Elwood or Honda that you felt
you were being treated differently because of your sex or your gender?
A. Like are you talking about superior or are you just talking about in
general?

125-26).” (Doc. 63 at 12). The following facts, proffered by the plaintiff, have been omitted as
the evidence to which they cite will be stricken:
37. Plaintiff has identified Jessica (Last Name Unknown) (African American) as a
comparator. (Pl.’s Depo., p. 74).
38. Jessica LNU was a pregnant employee who was placed on easier processes
because of her pregnancy (Id., pp. 89-91).
(Doc. 63 at 13).
50

Q. Someone who -- not a co-worker for now, so someone who you
reported to or who worked over you.
A. I think it was during the conversation of getting written up where I
told her I feel like I’m getting closed in on.
Q. So you’re talking about the conversation with Casey [Green]?
A. Yes.
Q. And you said like you were getting closed in on?
A. Yes, ma’am.
Q. Did you say it’s because I’m a female or it’s because of my gender or
anything like that?
A. I just said I feel like I was getting closed in on because of all this. I
didn’t name specifics.
Q. Any other time you complained to anyone that you felt like you were
being treated unfairly because you were a female?
A. To anyone?
Q. Not a co-worker, to someone above you.
A. No.
Q. Did you complain to anyone other than a co-worker, someone who
was at your same level that you felt like you were being treated unfairly
because of your gender?
A. I spoke about it to co-workers, yes.
Q. They were all in the same position as you?

51

A. Yes.
Q. That was the only thing other than the discussion with Casey?
A. Yes.
Q. And with Casey you weren’t specific, you just felt like you were
being closed in on?
A. Yes.
Q. Did you ever complain to anyone other than a co-worker, so someone
above you or anybody, that you felt you were being treated unfairly
because of your race?
A. Like I said, the conversation was just in general, everything. I didn’t
name specifics.
Q. So that conversation with Casey and nothing else?
A. Nothing.
Q. And that was when you signed that final warning?
A. Yes, ma’am.
Q. Tell me every time that you complained to anyone other than a
co-worker that you felt like you were being treated unfairly because of
disability.
A. Not that I can recall.
Q. And every time that you complained to anyone other than a
co-worker was you felt like you were being treated unfairly because of
your pregnancy?
A. Nothing but that conversation.
52

(Doc. 39-1 at 68(263)-69(266)). On August 7, 2011, the plaintiff sent an e-mail to
OSS Webb stating simply that she was “filling [sic] a report to EEOC about
pregnancy discrimination;”she provided no other substantive information in this
e-mail. That e-mail stated: “I know you have no idea what is going on.”
At no time did Elwood attempt to place the plaintiff on assignment at HMA
following her release to full duty. Numerous Elwood and HMA associates have taken
FMLA leave related to pregnancy and returned to work at HMA.
10.

Continued Refusal To Hire

The plaintiff testified that no one ever told her that she was fired or could not
come back. (Doc. 39-1 at 34(128)). In May 2013, after Balmer claimed in his
deposition that the plaintiff was on inactive status, she again attempted to gain
reinstatement but has received no offer to return to work. Elwood receives weekly
orders from HMA for a set number of associates–sometimes for as many as 80 per
week. (Doc. 39-2 at 8(21)-9(23)). Elwood sent the plaintiff an email on May 15,
2013, informing her that it would contact her when “an opening comes available that
matches [her] skills and work experience.” (Doc. 64-5 at 1). Since that email, Elwood
has not contacted the plaintiff. (Doc. 64-5 at 1). When asked in his deposition
whether he received such requests in February and March 2012, Balmer stated: “I
don’t have a specific memory of it, I mean, typically we received communication each
53

week regarding whether the orders are zero or any number above zero, so most likely
yes, but I don’t have a specific recollection of that.” (Doc. 39-2 at 19(62)).30
The plaintiff testified: “I claim that I was fired for asking for my medical bills
to be paid and I was harassed for restrictions. Like they wanted to see restrictions, I
got restrictions. They wanted detailed restrictions, I got them detailed restrictions and
next thing I know I wasn’t working anymore.” (Doc. 39-1 at 29(109)).
C.

Analysis
1.

Count One–Title VII Disparate Treatment (Non-Termination)
a.

The Allegations in Count One Demonstrate that the
Third Amended Complaint Is still a “Shotgun” Pleading

On October 10, 2013, the court noted that the Second Amended Complaint was
“the quintessential ‘shotgun’ pleading,” and stated:
Neither the Second Amended Complaint, nor the plaintiff’s reply brief to
the motion for summary judgment, explains what conduct goes with
which counts. Each count merely incorporates by reference the facts as
stated in the complaint and asks that the court “declare the rights and
duties of the parties consistent with the relief sought by [p]laintiff.”
(Doc. 52 at 4). The court then ordered the plaintiff to file a Third Amended Complaint

30

The plaintiff proffers the following fact: “32. Elwood contends that Balmer did not
have any knowledge that [p]laintiff suffered a work injury, but as discussed above, as
demonstrated in the notes he composed, he was aware. (Pl.’s Ex. 3).” (Doc. 63 at 12). The fact is
disputed by both defendants. As noted above, this general citation to the Balmer Notes is
insufficient. Because there are no specifics as to what portion of those notes show this alleged
knowledge, the court will not include this fact.
54

“which clearly (and separately) sets out each count, specifies the facts which apply to
each count, and clearly states as to which defendant each count applies.” (Doc. 52 at
5). Unfortunately, the Third Amended Complaint continues to miss the mark.
(1)

Despite Its Confusing Title, Count One Is Only a
Title VII Claim

The problems with Count One begin at the beginning–the title of the claim. The
plaintiff’s first count31 is entitled: “Failure to Accommodate on the Basis of
Pregnancy/Sex-Pregnancy Discrimination Act/Title VII.” (Doc. 53 at 2). The use of
the phrase “failure to accommodate” implies a claim under the Americans With
Disabilities Act (the “ADA”).32 However, because the plaintiff specifically makes an
ADA claim in her third and fourth counts, and because the ADA is not specifically
mentioned in her first count, the court assumes that an ADA claim is not present in her
first cause of action. Title VII and the Pregnancy Discrimination Act (“PDA”) are
specifically mentioned in Count One.33 Accordingly, the court will treat this count as
falling under only those laws.
31

Actually, the plaintiff does not set out “counts.” Instead, she sets out her “first cause of
action,” “second cause of action,” etc. However, the court will use the term “count.”
32

The ADA, among other things, prohibits discrimination by “not making reasonable
accommodations to the known physical or mental limitations of an otherwise qualified individual
with a disability who is an applicant or employee.” 42 U.S.C.A. § 12112(b)(5)(A) (emphasis
added).
33

As is shown below, the Pregnancy Discrimination Act merely amended Title VII.
Accordingly, Count One is really only a Title VII claim.
55

(2)

The Third Amended Complaint Falls To Adhere
to This Court’s Order To Separate the Claims and
Defendants

Next, despite this court’s order to “clearly (and separately) set[] out each count,
specif[y] the facts which apply to each count, and clearly state[] as to which defendant
each count applies” (doc. 52 at 5), the Third Amended Complaint continues to lump
together, in the same count, both defendants, and multiple allegations of wrongdoing.
Count One sets out three different acts of wrongdoing. The first alleged act is
that, after the plaintiff “experienced bleeding from her vagina . . . [she] requested an
accommodation in the form of light duty [but] . . . [i]nstead of putting her on light
duty, [p]laintiff’s supervisors returned [p]laintiff to regular duty putting on doors.”
(Doc. 53 at 3). This language does not explain which defendant is responsible for this
alleged wrong and why. The answer cannot be discerned by merely looking at who
employed the plaintiff’s supervisors, since she was supervised by individuals
employed by both defendants.34 Further, the absence of dates and other specifics
makes it impossible to discern which “refusals to accommodate” the plaintiff is
referencing. The plaintiff might be referring to HMA’s refusal to accommodate her

34

The plaintiff’s supervisors included Team Coordinator Isaac Henderson, and Team
Manager Ricky Sanders, both employed by HMA. Elwood employed Alan Balmer as a project
plant manager at HMA, and several persons in the position of “On-Site Supervisor” (“OSS”),
including Casey Green, Robin Webb, B.B. Campbell, and Amanda Souza.
56

after she requested to “take it easy” on June 22, 2011, the day after her incident. Or she
might be referring to HMA’s continued refusal to provide her with light duty after she
presented more specific restrictions from her doctor. Or, she could be referring to
Elwood’s part in each such refusal, although that seems unlikely since it is undisputed
that Elwood plays no role in the process-rotation schedule or in the assignment of
processes.
In addition, Count One adds an allegation that the plaintiff “was qualified for
placement through Elwood at other positions that would have accommodated her
restrictions but received no accommodation.” (Doc. 53 at 3). This allegation seems
to be directed only at Elwood, despite the fact that this count as a whole is supposedly
is aimed at both defendants. Further, the allegation contains no facts or other specifics
through which the court could discern for what positions the plaintiff was supposedly
qualified with her restrictions, if she applied for those positions, when she applied, etc.
Finally, Count One lumps in that the “[d]efendants also denied [p]laintiff’s
reasonable request for extended unpaid leave until she had recovered form her
pregnancy.” (Doc. 53 at 3). The allegation includes no facts from which the court
could discern which defendant was responsible for granting such leave, which
defendant was asked it, when it was requested, and when it was denied. However, it

57

is undisputed that only Elwood had anything to do with the plaintiff’s FMLA leave.35
Because the plaintiff has repeatedly failed to comply with this court’s orders,
dismissal of Count One is appropriate. FED. R. CIV. P. 41(b); Goforth v. Owens, 766
F.2d 1533, 1535 (11th Cir. 1985). The court has, the best it can, reviewed the
allegations of each count along with the arguments in the briefs, and determines that
summary judgment is also appropriate on the merits of Count One. Accordingly, even
if the plaintiff had requested leave to amend yet again, which she has not, amending
the complaint would be futile.36 Further, the plaintiff has already had two opportunities
to amend. Accordingly, the court will not order repleader again.
b.

The McDonnell Douglas Framework

Title VII provides:
[i]t shall be an unlawful employment practice for an employer . . . to fail

35

In addition to being of a shotgun nature, these summary and conclusory allegations do
not plausibly establish a claim consistent with the requirements of Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S.
662, 129 S. Ct. 1937, 1939, 173 L. Ed. 2d 868 (2009). However, the defendants did not move to
dismiss the claim, despite these problems.
36

One might think that the court could simply review the parties’, and in particular the
plaintiff’s, submissions on the motion for summary judgment to discern which facts support
which allegations, since, under McDonnell Douglas, the plaintiff has the initial burden to prove
her prima facie case as to her claims of discrimination. See, Kidd v. Mando Am. Corp., No. 1212090, 2013 WL 5382138 at *3 (11th Cir. Sept. 27, 2013). But taking that approach would
require the court to “sift out the irrelevancies, a task that can be quite onerous.” Strategic Income
Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002).
Regardless, in responding to the motions for summary judgment, the plaintiff fails in that respect
as well, which will be another basis for granting summary judgment.
58

or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.
42 U.S.C.A. § 2000e-2(a)(1). The Pregnancy Discrimination Act expanded the
definition of the Title VII phrases “because of sex” and “on the basis of sex” to
include “because of or on the basis of pregnancy, childbirth or related medical
conditions.” See, Newport News Shipbuilding & Dry Dock Co. v. E.E.O.C., 462 U.S.
669, 684, 103 S. Ct. 2622, 2631, 77 L. Ed. 2d 89 (1983) (“The Pregnancy
Discrimination Act has now made clear that, for all Title VII purposes, discrimination
based on a woman’s pregnancy is, on its face, discrimination because of her sex.”)
Accordingly, at its core, this count actually alleges only that the plaintiff was
discriminated against because of her sex.
Where, as in this case, the plaintiff’s case is based upon circumstantial (as
opposed to direct) evidence, the court employs the familiar three part framework set
out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d
668 (1973). Under that framework,
[t]he Title VII plaintiff bears “the ultimate burden of proving
discriminatory treatment by a preponderance of the evidence.” Earley v.
Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir.1990). Thus, under
the first part of McDonnell Douglas, the plaintiff must establish by a
preponderance of the evidence a prima facie case of discrimination. If she
does, the burden of production shifts to the employer, which requires the
59

employer to introduce evidence of “some legitimate, nondiscriminatory
reason” for its employment decision. McDonnell Douglas, 411 U.S. at
802. If the employer satisfies its burden, “the presumption raised by the
prima facie case is rebutted.” Collado v. United Parcel Serv. Co., 419
F.3d 1143, 1151 (11th Cir.2005) (internal quotation marks omitted).
Because the burden of persuasion remains with the employee, she must
then show that the seemingly legitimate reason the employer gave was
pretextual—i.e., the “proffered reason was not the true reason for the
employment decision.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
508, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (internal quotation marks
omitted); see also Collado, 419 F.3d at 1150 (noting that once the
employer satisfies its burden “the presumption of discrimination that
arose when the plaintiff made [her] prima facie showing ‘drops from the
case,’ and ‘the case is placed back into the traditional framework—in
other words, the plaintiff still bears the burden of proving, more probably
than not, that the employer took an adverse employment action against
[her] on the basis of a protected personal characteristic’ ” (internal
citations omitted)).
Kidd v. Mando Am. Corp., 731 F.3d 1196, 1202 (11th Cir. 2013). Further, in disparate
treatment cases, such as this one, the plaintiff must prove discriminatory intent.
E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1273 (11th Cir. 2000). “In order
to show discriminatory intent, a plaintiff must demonstrate that the decisionmaker . .
. selected or reaffirmed a particular course of action at least in part “because of,” not
merely “in spite of,” its adverse effects on an identifiable group.” Joe’s Stone Crab,
Inc., 220 F.3d at 1273.
c.

The Plaintiff Has Not Established a Prima Facie Case

A prima facie case of pregnancy discrimination requires the plaintiff to show

60

that: (1) she is a member of a group protected by Title VII; (2) she was qualified for
the position or benefit sought; (3) she suffered an adverse effect on her employment;
and (4) she suffered from a differential application of work or disciplinary rules.
Sampath v. Immucor, Inc., 271 F. App’x 955, 961 (11th Cir. 2008) (citing Spivey v.
Beverly Enterprises, Inc., 196 F.3d 1309, 1312 (11th Cir. 1999)). In her brief, the
plaintiff not only fails to set out and argue these elements, she does not even mention
the McDonnell Douglas framework. Because the plaintiff has neither acknowledged
nor attempted to satisfy her burden, her Title VII disparate treatment claims fail.37
(1)

Refusal To Give the Plaintiff Light Duty at HMA
(a)

HMA

Despite the shotgun nature of this count, it is clear that the plaintiff alleges,
albeit vaguely and conclusorily, that the defendant, or defendants, somehow and
someway, refused light duty to the plaintiff after her spotting incident on July 21,
2011. However, even under the Pregnancy Discrimination Act, the plaintiff “was not
entitled to a modified duty assignment solely because she was pregnant.” McQueen

37

The most logical and clear way to address these issues would have been to start with
the cause of action in Count One, and the allegations therein, and examine whether the plaintiff
has established her prima facie case. However, in especially confusing argument, the plaintiff
lumps together her pregnancy, sex, and disability claims, against both defendants and tries to
argue them all at once. Her brief focuses only on responding to some of the defendant’s
arguments. Claims that she did not defend are abandoned. Resolution Trust Corp. v. Dunmar
Corp., 43 F.3d 587, 599 (11th Cir. 1995).
61

v. AirTran Airways, Inc., 3:04-CV-00180-RS-EMT, 2005 WL 3591100 at *5 (N.D.
Fla. Dec. 30, 2005) (Smoak, J.). “[A]n employer violates the [Pregnancy
Discrimination Act] when it denies a pregnant employee a benefit generally available
to temporarily disabled workers holding similar job positions.” Spivey v. Beverly
Enterprises, Inc., 196 F.3d 1309, 1313 (11th Cir. 1999).
In a case with similar facts to the instant case, the court in Spivey explained:
There is no dispute that Appellant was no longer qualified to work
as a nurse’s assistant. The lifting restriction imposed on Appellant clearly
prevented her from performing the responsibilities required of this
position. Appellant argues, however, that she should have been given the
accommodation of modified duty because she was as capable of
performing the duties required of a modified duty assignment as nonpregnant employees who were injured on the job. Appellee, however,
was under no obligation to extend this accommodation to pregnant
employees. The [Pregnancy Discrimination Act] does not require that
employers give preferential treatment to pregnant employees. See, e.g.,
Lang v. Star Herald, 107 F.3d 1308, 1312 (8th Cir.1997); Garcia v.
Woman’s Hosp. of Texas, 97 F.3d 810, 813 (5th Cir.1996); Troupe v.
May Department Stores Co., 20 F.3d 734, 738 (7th Cir.1994). Appellee
was therefore free to provide an accommodation to employees injured on
the job without extending this accommodation to pregnant employees.
Appellant also has failed to establish that she suffered from a
differential application of work rules. In Byrd v. Lakeshore Hospital, 30
F.3d 1380 (11th Cir.1994), this Court held that an employer violates the
[Pregnancy Discrimination Act] when it denies a pregnant employee a
benefit generally available to temporarily disabled workers holding
similar job positions. See id. at 1383-84. In this case, the benefit
Appellant seeks is not generally available to temporarily disabled
workers. To the contrary, Appellee offers modified duty only to a clearly
identified sub-group of workers-those workers who are injured on the
62

job.
The correct comparison is between Appellant and other employees
who suffer non-occupational disabilities, not between Appellant and
employees who are injured on the job. Under the [Pregnancy
Discrimination Act], the employer must ignore an employee’s pregnancy
and treat her “as well as it would have if she were not pregnant.” Piraino
v. International Orientation Resources, Inc., 84 F.3d 270, 274 (7th
Cir.1996). Ignoring Appellant’s pregnancy would still have left Appellee
with an employee who suffered from a non-occupational injury.
Appellee, as per its policy, was therefore entitled to deny Appellant a
modified duty assignment as long as it denied modified duty assignments
to all employees who were not injured on the job.
Spivey, 196 F.3d at 1312-13.38
Just like in Spivey, it is clear in this case that the plaintiff could not perform all
38

The court rejects the plaintiff’s citation to the unpublished Sixth Circuit opinion of
Latowski v. Northwoods Nursing Ctr., 549 F. App’x 478, 487 (6th Cir. 2013), which follows the
Sixth Circuit rule that “the [Pregnancy Discrimination Act] requires only that the employee be
similar in his or her ability or inability to work.” Latowski, 549 F. App’x at 487 n. 3. In Latowski,
the Sixth Circuit held that “[a]lthough [profferred comparators] differed from [the pregnant
plaintiff] because their medical conditions were work-related, they were similarly situated in
their ability to work because they were placed under lifting restrictions of up to fifty pounds.” Id.
at 483. The Sixth Circuit, in a footnote, noted
Under the ordinary Title VII analysis, employees who were restricted because of
work-related injuries would be inappropriate comparators because they are not
similarly situated in all respects. However, the Ensley–Gaines court recognized
that the [Pregnancy Discrimination Act] altered the Title VII analysis for
pregnancy discrimination claims: “While Title VII generally requires that a
plaintiff demonstrate that the employee who received more favorable treatment be
similarly situated in all respects, the [Pregnancy Discrimination Act] requires only
that the employee be similar in his or her ability or inability to work.”
Id. at 487, n. 3 (quoting Ensley–Gaines v. Runyon, 100 F.3d 1220, 1226 (6th Cir.1996)). The
Ensley-Gaines decision, and Latowski, are inconsistent with existing, and binding, Eleventh
Circuit precedent in Spivey. Further, Ensley-Gaines, a 1996 opinion, was available to the
Eleventh Circuit when it issued Spivey in 1999.
63

of the duties of her job as a “process associate” or MST. HMA only provides light
duty assignments to employees who have suffered on-the-job injuries. It was therefore
free to deny light duty to the plaintiff as long as it did the same to other employees
who were not injured on the job.39 The plaintiff provided no admissible evidence of
an employee with similar restrictions, who was not injured on the job, and who was
provided, by HMA, the accommodation she seeks.
The plaintiff argues that this was an on-the-job injury, and cites the court to the
example of Josh Wade, who was given a light duty assignment after such an injury.
(Doc. 63 at 14-15). However, just because the plaintiff first noticed spotting while
working, does not mean that she was “injured” at work, or that the work caused the
injury.40 The plaintiff has submitted no admissible evidence showing that this was an
on-the-job injury. It was not treated as an on-the-job injury by her employers, and the

39

While the court analyzes this issue in terms of whether the plaintiff was treated
differently from other, similarly situated employees, it notes that, in the Eleventh Circuit, the
denial of an accommodation for pregnancy is also not an “adverse employment action.” See,
Jeudy v. Attorney Gen., Dep’t of Justice, 482 F. App’x 517, 521 (11th Cir. 2012) (“[W]e find no
error in the district court’s conclusion that the denial of Jeudy’s request for an accommodation
could not be considered a materially adverse employment action, which required Jeudy to
establish ‘a serious and material change in the terms, conditions, or privileges of employment,’
as viewed by a reasonable person in the circumstances.”) (quoting Davis v. Town of Lake Park,
Fla., 245 F.3d 1232, 1240 (11th Cir.2001)). This issue too was raised by HMA. (Doc. 61 at 1920; doc. 68 at 14). The plaintiff did not respond to this argument.
40

The plaintiff states that “Elwood appears to concede that [p]laintiff in fact suffered an
injury on the job.” (Doc. 63 at 14) (citing doc. 58 at 31). The citation does not support the
plaintiff’s assertion.
64

plaintiff received no workers’ compensation benefits as a result of the incident.
Further, Elwood, not HMA, provided Wade the light duty assignment at another
company which had nothing to do with HMA. Accordingly, even if this was an on-thejob injury, Wade is not a valid comparator to establish that HMA treated him
differently than the plaintiff.41
The plaintiff’s deposition testimony also clearly shows that her restrictions were
only because of her pregnancy and not the result of an on-the-job injury. When asked
in her deposition whether “the light duty restrictions [she] sought were simply because
[she was] pregnant,” she answered: “Yes, to keep me from further stressing my
pregnancy.” (Doc. 39-1 at 44(167)). Also, she stated that while she was still pregnant,
she could not return to work. (Doc. 39-1 at 55(210)). Most tellingly, she testified that
she was upset when Balmer asked her for more specific restrictions because

41

The plaintiff does not address this argument. The court also notes that, even if the
plaintiff was injured on the job, Wade is still not a valid comparator because there is no evidence
that he was otherwise similarly situated to her. “The plaintiff and the employee she identifies as a
comparator must be similarly situated ‘in all relevant respects.’ The comparator must be nearly
identical to the plaintiff to prevent courts from second-guessing a reasonable decision by the
employer.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004). As to what
processes her co-employees were certified, or “signed off on,” to perform the plaintiff stated:
“Like we all signed off on a list, but unless the same person did the same thing you wouldn’t
know it because you wouldn’t be seeing it assigned.” (Doc. 39-1 at 76(294)). The lack of
evidence as to the processes on which Wade was certified makes it impossible to say that he was
similarly situated to the plaintiff. Further, there is no evidence that Wade had similar work
restrictions as the plaintiff. Although this argument was raised by the defendants, the plaintiff
does not address it, writing only that “[d]efendants contend that [p]laintiff is not similarly
situated to Wade because she did not suffer an injury on the job.” (Doc. 63 at 14).
65

[t]hey knew the circumstances of being pregnant and what comes along
with it starting with bathroom and then going to they asked for the light
duty restrictions.
Q. So you think they should have just known what your light duty
restrictions were?
A. Yes, as any other pregnant woman working at Honda and getting
certain limitations they follow the same guidelines.
(Doc. 39-1 at 44(167)) (emphasis added). It is clear that the plaintiff merely wanted
the same restrictions “as any other pregnant woman working at Honda,” not special
restrictions because of an on-the-job injury.
There is simply no evidence that HMA treated the plaintiff differently than any
other non-pregnant employee with similar restrictions, who was not injured on the job.
Any claim under the PDA and Title VII, again HMA, based upon the failure to provide
the plaintiff with “light duty” fails on the merits.
(b)

Elwood

The plaintiff’s brief in response to the motion for summary judgment focuses
on Elwood’s failure to find the plaintiff another assignment that met her restrictions,
not the failure to give her light duty at HMA. Regardless, it is undisputed that Elwood
has no control over the processes which were assigned to the plaintiff at HMA. The
plaintiff has made no argument that Elwood otherwise should be held responsible for
not giving the plaintiff light duty at HMA. Summary judgment therefore is appropriate
66

for Elwood to the extent that the plaintiff alleges that it is responsible for the failure
to assign the plaintiff to light duty at HMA.42
(2)

The Refusal by Elwood To Find Other
Assignments, at Businesses other than HMA, that
the Plaintiff Could Do with her Restrictions
(a)

HMA

The plain wording of the complaint indicates that this claim is brought only
against Elwood. Further, it is undisputed that HMA played no role in any attempt by
the plaintiff to be assigned to another Elwood client company. Summary judgment is
due on Count One, in favor of HMA, to the extent that count is based on these
allegations.
(b)

Elwood

Elwood provides light duty in instances where its employees suffer an
on-the-job injury, of which it is made aware, who need restrictions in order to continue
working. Additionally, Elwood engages in an interactive process to determine whether
it can reasonably accommodate qualified individuals with disabilities as defined by the
Americans With Disabilities Act. With regard to non-work-related medical conditions,
including pregnancy, Elwood tries to work with its client locations to see if the

42

The shotgun nature of the Third Amended Complaint makes such guesswork necessary
in order to cover all of the plaintiff’s legal bases.
67

associate’s personal restrictions can be met, but it does not have a formal “light duty”
program for personal medical restrictions. Elwood handles requests for personal
medical restrictions related to pregnancy in the same manner it handles requests for
personal medical restrictions related to other non-work-related conditions.
On August 17, 2011, Balmer e-mailed the Oxford Elwood Branch to see if there
were any available positions with other clients which would meet the plaintiff’s
personal medical restrictions. (Doc. 59-5 at 4). He then called the branch office and
learned that there were no such assignments available. (Doc. 59-5 at 4). Balmer also
sent an e-mail to White asking if there were any other positions at HMA where the
plaintiff could work within her restrictions. White responded that HMA could not
accommodate the plaintiff’s specific personal medical restrictions.43 Because the
plaintiff could not perform her processes at HMA, and because Elwood had no other
positions available which could meet her personal medical restrictions, she was
approved to take FMLA leave based on her FMLA Certification. (Doc. 59-5 at 4).

43

The plaintiff implies that there were jobs she could do at HMA. The plaintiff argues
that she “was able to continue to perform some of the processes that were within her restrictions.
Honda informed Elwood that [p]laintiff could potentially perform the AT label function.” (Doc.
63 at 16). In fact, when the plaintiff received her restrictions, OSS Webb asked Sanders if there
was any process she could perform to which Sanders replied: “Maybe AT Label. But she would
have to bend over to install some of the labels. So, really none.” (Doc. 39-2 at 37). Even if she
could perform some of the processes, it is undisputed that process associates are required to
rotate through several different processes throughout their shift, and there is no evidence that
being able to do some, but not all, of those processes was something that was feasible.
68

The plaintiff cites only one other job which she claims Elwood had, but did not
give her. She argues that she specifically inquired with Elwood about a job as a
receptionist that she thought she could do with her restrictions. (Doc. 63 at 16).
Elwood informed her that “it couldn’t meet [her] restrictions either.” (Doc. 39-1 at
43(164-165)). The plaintiff cites no evidence as to where this job was located, or what
the requirements of this job were. She has not shown that she could have performed
the duties of this job with her restrictions. Regardless, even if she could perform the
requirements of the receptionist job, she has not shown that her pregnancy was the
reason she was denied the job. Further, she has not shown that other, similarly situated
non-pregnant individuals were accommodated by Elwood while she was not.44
Summary judgment is appropriate in favor of Elwood as to Count One, to the
extent that it is based upon these allegations.
(3)

Denial of Extended FMLA Leave
(a)

HMA

The plaintiff states that “[d]efendants also denied [p]laintiff’s reasonable request
for extended unpaid leave until she had recovered form her pregnancy.” (Doc. 53 at

44

Elwood also argues that the plaintiff has not shown that any alleged conduct by it
amounted to an adverse employment action. (Doc. 58 at 22-23). The plaintiff does not respond to
this argument. As noted above, the failure to show this required element also requires the court to
grant summary judgment in favor of Elwood.
69

3). It is undisputed that HMA played no role in the administration of FMLA leave to
Elwood associates. Summary judgment in favor of HMA is appropriate on Count One
to the extent that it is based on these allegations.
(b)

Elwood

The evidence is undisputed that, after Balmer tried to find positions which met
the plaintiff’s restrictions and found none, he approved the plaintiff to take FLMA
leave. The plaintiff’s brief does not address the claim that Elwood failed to extend the
leave.45 Accordingly, the court treats that claim as having been abandoned. Resolution
Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“[G]rounds alleged
in the complaint but not relied upon in summary judgment are deemed abandoned.”).
Further, even if the claim was not abandoned, the plaintiff cites no evidence that this
was an adverse employment action, or that any similarly situated non-pregnant
employee of Elwood was treated more favorably.
Summary judgment in favor of Elwood is appropriate on Count One to the
extent that it is based on these allegations.

45

The plaintiff’s brief states that requiring the plaintiff to take FMLA leave early instead
of giving her light duty was discriminatory. (Doc. 63 at 17). As noted above, the complaint
makes no such claim, at least not as part of her Title VII claim, and the plaintiff cannot amend
her complaint via her brief in opposition to the defendant’s motion for summary judgment.
Miccosukee Tribe of Indians of Florida v. United States, 716 F.3d 535, 559 (11th Cir. 2013) (“In
this circuit, a plaintiff cannot amend his complaint through argument made in his brief in
opposition to the defendant’s motion for summary judgment.”).
70

d.

No Showing of Pretext

Even assuming that the plaintiff has established a prima facie case of
discrimination, HMA states that it did not give the plaintiff light duty because it never
gives employees light duty when they are not injured on the job. Elwood argues that
it did not place the plaintiff in any other assignments because none were available.
If the employer satisfies its burden by articulating one or more
reasons [for the challenged conduct], then the presumption of
discrimination is rebutted, and the burden of production shifts to the
plaintiff to offer evidence that the alleged reason of the employer is a
pretext for illegal discrimination. If the proffered reason is one that might
motivate a reasonable employer, a plaintiff cannot recast the reason but
must meet it head on and rebut it. Quarreling with that reason is not
sufficient.
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087-88 (11th Cir. 2004) (citations omitted).
“[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).
The plaintiff makes no argument, much less a showing, that these reasons were
a mere pretext for discrimination.46 For that reason as well, summary judgment is
46

As far as the court can tell, the word “pretext” does not appear in the plaintiff’s brief,
and, as noted previously, the plaintiff does not discuss the McDonnell Douglas framework. The
court has not endeavored to determine whether it might somehow construe the brief as having
somehow made a pretext argument as “‘[t]here is no burden upon the district court to distill every
potential argument that could be made based upon the materials before it on summary judgment.
71

appropriate to the extent Count One is based on the failure to give the plaintiff light
duty and/or assign her to other positions.
2.

Count Two–Title VII Disparate Treatment (Termination)47

This count alleges that the plaintiff was terminated after her FMLA leave
expired. She contends that Elwood forced her to take her FMLA leave early, so that
it would be exhausted before her child was born. (Doc. 63 at 17). Then, the argument
goes, when the plaintiff did not return to work, it could, and did, terminate her.
However, the count also alleges that the defendants refused to accommodate her with
light duty after her leave expired. The count is brought against both defendants.
Like Count One, Count Two is “shotgun” in nature as it lumps both defendants
together, and appears to allege multiple acts of wrongdoing without specifying each
defendant’s culpability separately. It is due to be dismissed as not in compliance with
this court’s order of October 10, 2013 (doc. 52). FED. R. CIV. P. 41(b). Further, the
plaintiff fails to set out and argue the elements of her claim under the McDonnell
Douglas framework. Because the plaintiff has neither acknowledged nor attempted to
satisfy her burden, her Title VII claims fail for that additional reason. For the reasons
Rather, the onus is upon the parties to formulate arguments.’” McIntyre v. Eckerd Corp., 251 F.
App’x 621, 626 (11th Cir. 2007) (quoting Resolution Trust Corp., 43 F.3d at 599).
47

Count Two suffers from the same poor nomenclature as Count One. For the same
reasons as it did so with Count One, the court treats this count as sounding only in Title VII sex
discrimination.
72

shown below, the count is also due to be dismissed on its merits.
a.

Light Duty

These allegations were addressed in the previous section. Both defendants are
due summary judgment on Count Two to the extent that it is based on these
allegations.
b.

Termination

It is undisputed that HMA had nothing to do with the plaintiff’s FMLA leave.
As to HMA, summary judgment is appropriate on Count Two to the extent that it is
based on these allegations.
In her brief in opposition to the motion for summary judgment, the plaintiff
discusses termination in the context of Title VII only in passing, in one paragraph.
(Doc. 63 at 17) (“I believe it is the intention of Elwood . . . to force me to exhaust my
FMLA leave before the child is born, and then, when I am out for more than twelve
weeks, to terminate me.”). As with Count One, the plaintiff makes no attempt to set
out, or prove, the prima facie elements of her termination claim. She therefore has not
satisfied her initial burden and summary judgment is appropriate. Even if she had,
there is no evidence that the plaintiff has in fact been “terminated.” Indeed, the
evidence establishes that she is on “inactive” status. Even assuming that the failure to
reassign the plaintiff is somehow a de facto termination, there is no evidence of
73

similarly situated employees, who were not pregnant, but were treated more favorably
than she.48 Finally, there is no evidence of any jobs that were available that she could
have performed with or without restrictions.
Finally, as noted above, Elwood argues that it did not place the plaintiff in any
other assignments because none were available. The plaintiff has not argued or shown
that this reason was a mere pretext for discrimination. Summary judgment is
appropriate as to Elwood on Count Two to the extent that it is based on these
allegations.
3.

Count Three–the Americans With Disabilities Act (Failure To
Accommodate); Count Four–the Americans With Disabilities
Act (Unlawful Termination on the Basis of Disability)

In Counts Three and Four the plaintiff shifts from referring to herself as injured
on the job, to having a “disability” under the Americans With Disabilities Act (the
“ADA”). Count Three alleges that the plaintiff was not given a reasonable
accommodation of light duty; Count Four alleges that the plaintiff was terminated after
her FMLA leave expired while Josh Wade was allowed to remain.
Again, Counts Three and Four are “shotgun” in nature as they lump both
defendants together without specifying each defendant’s culpability separately. They
are due to be dismissed as not in compliance with this court’s order of October 10,
48

As noted in the previous section, Josh Wade is not a proper comparator.
74

2013 (doc. 52). FED. R. CIV. P. 41(b). Further, the plaintiff fails to set out and argue
the elements of her claim under the McDonnell Douglas framework.49 Because the
plaintiff has neither acknowledged nor attempted to satisfy her burden, her ADA
claims fail for that additional reason. For the reasons shown below, the counts are also
due to be dismissed on their merits.
“To establish a prima facie case of discrimination under the ADA, a plaintiff
must show: (1) he is disabled; (2) he is a qualified individual; and (3) he was subjected
to unlawful discrimination because of his disability.” Holly v. Clairson Indus., L.L.C.,
492 F.3d 1247, 1255-56 (11th Cir. 2007). The defendants correctly argue that the
plaintiff cannot show that she was “disabled” under the ADA. Among other things, the
ADA defines a “disability” as “a physical or mental impairment that substantially
limits one or more ... major life activities,” 42 U.S.C. § 12102(2)(A).50 “Major life
activities” include, but are not limited to:
(i) Caring for oneself, performing manual tasks, seeing, hearing, eating,
sleeping, walking, standing, sitting, reaching, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking, communicating,

49

The framework applies to ADA cases. Holly v. Clairson Indus., L.L.C., 492 F.3d 1247,
1255-56 (11th Cir. 2007).
50

The statute also defines disability was “a record of such an impairment,” 42 U.S.C.A. §
12102(2)(B) or as “being regarded as having such an impairment,” 42 U.S.C.A. § 12102(2)(C).
The plaintiff does not specify under which subsection she falls. However, there is no evidence
that she falls under these latter two. Further, because the plaintiff states that she “was disabled,”
the court has analyzed this claim under the first subsection.
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interacting with others, and working; and
(ii) The operation of a major bodily function, including functions of the
immune system, special sense organs and skin; normal cell growth; and
digestive, genitourinary, bowel, bladder, neurological, brain, respiratory,
circulatory, cardiovascular, endocrine, hemic, lymphatic,
musculoskeletal, and reproductive functions. The operation of a major
bodily function includes the operation of an individual organ within a
body system.
(2) In determining other examples of major life activities, the term
“major” shall not be interpreted strictly to create a demanding standard
for disability. ADAAA section 2(b)(4) (Findings and Purposes). Whether
an activity is a “major life activity” is not determined by reference to
whether it is of “central importance to daily life.”
29 C.F.R. § 1630.2(i)(1)-(2). The ADA Amendments Act of 2008 (“ADAAA”) was
intended to make it easier for plaintiffs to prove they are disabled under the ADA. 29
C.F.R. Part 1630, App. § 1630.2(g) (citing 154 Cong. Rec. 13,766 (2008) (Joint
Statement of Reps. Hoyer and Sensenbrenner on the origins of the ADA Restoration
Act of 2008, H.R. 3195) (“the primary purpose of the ADAAA is to make it easier for
people with disabilities to obtain protections under the ADA”)). The ADA, as
amended by the ADAAA, provides that a disability “shall be construed in favor of
broad coverage of individuals under this chapter, to the maximum extent permitted by
the terms of this chapter.” 42 U.S.C. § 12102(4)(A); 29 C.F.R. § 1630.1(c)(4). The
EEOC has further explained that the “substantially limits” requirement is to be
“construed broadly in favor of expansive coverage” and “is not meant to be a
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demanding standard.” 29 C.F.R. § 1630.2(j)(1)(i). Additionally, the term “ ‘major [life
activity]’ shall not be interpreted strictly to create a demanding standard for
disability.” Id. § 1630.2(i)(2).
“Pregnancy, absent unusual circumstances, is not considered a disability under
the ADA.” Mayorga v. Alorica, Inc., 12-21578-CIV, 2012 WL 3043021 at *5 (S.D.
Fla. July 25, 2012). However, under the ADA and the ADAAA, a pregnancy-related
impairment may be considered a disability, if it substantially limits a major life
activity. 29 C.F.R. pt. 1630, App. § 1630.2(h) (emphasis added). The plaintiff
acknowledges in her brief that a pregnancy related impairment must substantially limit
a major life activity. (Doc. 63 at 18). She then argues:
In the present case, there is no dispute that [p]laintiff suffered a
pregnancy-related impairment that was not typical of a healthy
pregnancy. As discussed above, the record is clear that straining to put
on vehicle doors caused [p]laintiff to bleed from her vagina. The
restrictions [p]laintiff was placed under were not merely because she was
pregnant but because of the injury she suffered: that she was not placed
on restrictions until after she was injured demonstrates this. (Pl.’s Depo.,
p. 104). When asked if these restrictions were because of pregnancy,
[p]laintiff made clear that they were because of “the strain from the door”
causing [p]laintiff “to stress my pregnancy” and causing “me to bleed.”
(Id., p. 105).
(Doc. 63 at 18-19).
The plaintiff’s argument misses the point. First, there is no evidence that the
plaintiff’s pregnancy was not “healthy,” or that there was some complication or other
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issue regarding her pregnancy. In support of her position that her condition is
disabling, the plaintiff cites Mayorga v. Alorica, Inc., 2012 WL 3043021. In that case,
the plaintiff, Mayorga, had suffered complications during her previous pregnancies.
Because of this, “Mayorga’s obstetrician determined that her pregnancy was high-risk,
and that she needed to be closely monitored.” Mayorga, 2012 WL 3043021 at *1. She
was required to take time off for ultrasound testing which “revealed that her baby was,
and would be, in a breech presentation throughout her entire pregnancy.” Id. The
plaintiff alleged that she “suffered from premature uterine contractions, irritation of
the uterus, increased heart rate, severe morning sickness, severe pelvic bone pains,
severe back pain, severe lower abdominal pain, extreme headaches, and other
pregnancy-related conditions.” Id. (internal quotations omitted). Mayorga alleged that
she was admitted to the emergency room on three separate occasions for “severe
complications relating to her pregnancy,” and her doctor ordered her on bed rest for
three weeks. Id. The court held that these allegations were sufficient to survive a
motion to dismiss, writing:
Here, Mayorga has alleged sufficient facts to state a plausible
claim for relief under the ADA for a pregnancy-related complication. The
Complaint alleges that Mayorga suffered from a physiological
impairment—namely, that her baby was in a breech presentation and that
she had significant pregnancy-related complications resulting in her three
emergency room admissions and numerous pregnancy-related
symptoms—and that Alorica’s decision to terminate her employment was
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based on these impairments. Such allegations, if proven as true, would
provide Mayorga a cognizable claim under the ADA. In light of the
ADAAA’s lenient standards to establish a disability, and the pleading
standards of Rule 8, the Court finds that Mayorga has alleged sufficient
facts to state a facially plausible claim of discrimination based on an
actual disability under the ADA.
Id. at *6.
The facts of the instant case are easily distinguishable from those in Mayorga.
The plaintiff has provided evidence of only one incident of spotting, and only one trip
to the doctor. She has produced no evidence that she experienced the kind of
“pregnancy related symptoms” as the plaintiff in Mayorga. Further, Mayorga was
decided on a motion to dismiss, whereas this case is before the undersigned on a
developed evidentiary record at summary judgment.
Further, even assuming that the plaintiff had a pregnancy related impairment,
the plaintiff was not suffering from a disability unless that impairment substantially
limits a major life activity. The plaintiff fails to argue that any major life activity was
so limited.51
Finally, and tellingly, in her deposition the plaintiff stated that her condition
“wasn’t a disability, it was pregnant and on-the-job injury, I wasn’t disabled. I was at

51

As noted above, “lifting” and “working” are major life activities. 29 C.F.R. §
1630.2(i)(1)-(2). However, the plaintiff has made no showing that these, or any other major life
activities were substantially impaired by a pregnancy related impairment.
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all times physically able to work with requirements and restrictions.” (Doc. 39-1 at
28(103)). She never considered herself disabled when she was at HMA. (Doc. 39-1 at
28(103)). She also stated that she was limited to light duty “solely as a result of [her]
pregnancy.”
Because the plaintiff was not “disabled” under the ADA, Summary Judgment
is appropriate in favor of the defendants as to Counts Three and Four.52
4.

Count Five–Title VII (Retaliation on the Basis of Sex); Count
Six–the Americans With Disabilities Act (Retaliation); Count
Seven–Title VII and 42 U.S.C. § 1981 (Retaliation on the Basis
of Race)

The plaintiff claims that her termination/lack of being placed in another
assignment, was in retaliation for complaints and charges to the EEOC. (Doc. 53 at 912). The counts are brought against both defendants. As with the previous counts,
these counts are “shotgun” in nature as they lump both defendants together without
specifying each defendant’s culpability separately. They are therefore due to be
dismissed as not in compliance with this court’s order of October 10, 2013 (doc. 52).
FED. R. CIV. P. 41(b). Further, the same McDonnell Douglas analysis applies to
retaliation claims whether they are brought under Title VII, the ADA, or Section 1981.
See, Bryant v. Jones, 575 F.3d 1281, 1307 (11th Cir. 2009); Stewart v. Happy

52

As with these counts as well, summary judgment is also appropriate because the
plaintiff has not argued or shown pretext.
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Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997). Summary
judgment is also appropriate because the plaintiff does not set out this framework, or
attempt to argue it. As shown below, summary judgment is also appropriate on the
merits of these claims.
“[A] plaintiff alleging retaliation must first establish a prima facie case by
showing that: (1) he engaged in a statutorily protected activity; (2) he suffered an
adverse employment action; and (3) he established a causal link between the protected
activity and the adverse action.” Bryant v. Jones, 575 F.3d 1281, 1307-08 (11th Cir.
2009) (citing Raney v. Vinson Guard Serv. Inc., 120 F.3d 1192, 1196 (11th Cir.1997);
Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir.1993)). In her brief, the
plaintiff identifies two alleged acts of protected conduct. She states: “As noted above,
[p]laintiff complained to the EEOC before her employment ended that she was being
forced to use her FMLA leave though she had requested light duty.” (Doc. 63 at 22).
She further writes that she “additionally engaged in protected activity when she filed
her second EEOC charge in November 2012.” (Doc. 63 at 23).
a.

HMA

The only alleged retaliatory conduct the plaintiff identifies in her brief is the

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failure of Elwood, initially and to this date, to place her in a new position.53 As to
HMA, the plaintiff identifies no conduct, either in her complaint or brief, which it is
alleged to have taken in retaliation for her complaints. The plaintiff stated in her
deposition that she never contacted HMA regarding her ability to work after her
FMLA leave started. (Doc. 39-1 at 82(318)); see also doc.62-5 at 8 (White Affidavit)).
Summary judgment is appropriate in favor of HMA on Counts Five, Six, and Seven.
b.

Elwood

The sole basis for the plaintiff’s claim against Elwood is that it “terminated” her
and/or has refused to place her in another assignment. However, the plaintiff is merely
speculating that, because Elwood has not placed her into a position, that must mean
that it is retaliating against her. She states that she contacted the Oxford office in
February 2012, and informed it that her restrictions had been lifted and that she was
available to work. (Doc. 39-1 at 55(212), 57(219)). She called back a few weeks later
to ask if there were any positions available for her and was told “they would have to
get back with [her] on that.” (Doc. 39-1 at 57(221)). In her affidavit, the plaintiff states
that, in May 2013, she “contacted the Montgomery office of Elwood Staffing Services
and requested to be placed back on active status.” (Doc. 64-5 at 1). She states that she

53

The placing of the plaintiff on FMLA leave could not have been done in retaliation as
that occurred before her complaints. Further, it is undisputed that HMA had nothing to do with
the plaintiff’s FMLA leave.
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“received an email from Elwood on May 15, 2013 informing [her] that Elwood would
contact [her] when ‘an opening comes available that matches your skills and work
experience.’” (Doc. 64-5 at 1-2). She states that “Elwood has not contacted me since
receipt of the May 15 email.” (Doc. 64-5 at 2).
Importantly, the plaintiff cannot show that any adverse employment action has
been taken against her, because she has offered no evidence that, during this time,
Elwood had any open positions, which matched her qualifications and experience, and
which Elwood denied her because she had engaged in protected conduct. The best the
plaintiff is able to do is point a section of Balmer’s deposition where he states that, on
a weekly basis, HMA would ask Elwood to send them a certain number of employees
and that “[s]ome weeks it’s zero [but] [i]t’s been as many as maybe 80 in a week.”
(Doc. 39-2 at 9(22-23)). Nothing about this testimony narrows down how many
employees HMA has actually asked for since the plaintiff left, what types of positions
the employees were meant to fill, and if the plaintiff was qualified for any of those
positions.54 Too, even assuming that there were positions at HMA for which the
plaintiff was qualified, and for which HMA requested employees, the plaintiff has not

54

When asked about the time frame of February-March of 2012, Balmer could said he
had no specific memory of whether he received any such requests. The best he could say is
“typically we received communication each week regarding whether the orders are zero or any
number above zero, so most likely yes, but I don’t have a specific recollection of that.” (Doc. 392 at 19(62)).
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shown that she did not get the job because of her protected conduct.
Further,
[t]o establish a causal connection, the plaintiff must show that “the
protected activity and the adverse action are not completely unrelated.”
Davis v. Coca–Cola Bottling Co., Consol., 516 F.3d 955, 978 n. 52 (11th
Cir.2008). To demonstrate that these two elements are not completely
unrelated, the plaintiff must show that “the decision maker was aware of
the protected conduct at the time of the adverse employment action.”
Brungart v. BellSouth Telecomm., Inc., 231 F.3d 791, 799 (11th
Cir.2000), cert. denied, 532 U.S. 1037, 121 S.Ct. 1998, 149 L.Ed.2d
1001 (2001). In other words, a decision maker cannot have been
motivated to retaliate by events of which the decision maker is unaware.
Id. Awareness, however, can be established by circumstantial evidence.
Id.
Butts v. Ameripath, Inc., 794 F. Supp. 2d 1277, 1294 (S.D. Fla. 2011). The plaintiff
has not shown or argued that any persons who might have considered her for any
alleged positions had any knowledge of her complaints to the EEOC.
Finally, the plaintiff has not shown that the reasons given for not rehiring her
were pretextual. Elwood is entitled to summary judgment on Counts Five, Six, and
Seven.
5.

Count Eight–Title VII and 42 U.S.C. § 1981 (Discrimination on
the Basis of Race)

The plaintiff alleges this claim only against HMA. (Doc. 53 at 13). This claim
is based only on the allegation that “Jessica” whose last name is unknown, was
allowed to work “light duty” because she was pregnant while the plaintiff was not.
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Title VII and Section 1981 disparate treatment claims are also analyzed under the
aforementioned McDonnell Douglas burden shifting framework. Burke-Fowler v.
Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006); Standard v. A.B.E.L. Servs.,
Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). To establish a prima facie case for
disparate treatment in a race discrimination case, the plaintiff must show that: (1) she
is a member of a protected class; (2) she was subjected to an adverse employment
action; (3) her employer treated similarly situated employees outside of her protected
class more favorably than she was treated; and (4) she was qualified to do the job.
Burke-Fowler, 447 F.3d at 1323.
The plaintiff does not set out these elements, and not attempted to satisfy her
burden. Further, in this case, “Jessica” is the plaintiff’s only comparator, and all
evidence regarding Jessica’s assignments, duties, etc. will be stricken. Summary
judgment in favor of HMA on Count Eight is appropriate.
6.

Count Nine–Ala. Code § 25.5.11.1 (Retaliatory Discharge)

This claim is brought only against Elwood. (Doc. 53 at 14). It alleges that, after
the plaintiff requested workers compensation benefits, “she was forced to go on
unpaid FMLA leave and denied reasonable accommodation, after which she was not
allowed to work for [d]efendants.” (Doc. 53 at 14-15). The elements of this claim are:
“1) an employment relationship, 2) an on-the-job injury, 3) knowledge on the part of
85

the employer of the on-the-job injury, and 4) subsequent termination of employment
based solely upon the employee’s on-the-job injury and the filing of a workers’
compensation claim.” Alabama Power Co. v. Aldridge, 854 So. 2d 554, 563 (Ala.
2002). As shown above, the plaintiff did not have an “on-the-job” injury. She did not
file a worker’s compensation claim. Neither HMA nor Elwood ever treated the July
21 incident as an on-the-job injury; a First Report of Injury was never completed.
Balmer stated in his deposition that he “never knew that Ms. Abbott suffered any
purported on-the-job injury.” (Doc. 59-5 at 4). Further, the plaintiff has not shown that
the reason she has not gotten more positions was because she allegedly applied for
workers compensation benefits. Indeed, as noted above, she did not apply for workers’
compensation benefits. Additionally, she has not shown that there were any positions
available. Summary judgment in favor of Elwood is appropriate as to this claim.
III.

CONCLUSION
Based on the foregoing, the motion to strike/objections, treated by the court as

objections to the evidence offered by the plaintiff in opposition to the motions for
summary judgment, shall be disposed of as noted above. The motions for summary
judgment shall be GRANTED, and this case shall be DISMISSED, with prejudice.
A separate order will be entered.

86

DONE and ORDERED this 31st day of July, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

87