Howard v. U.S. Steel Corporation

Filing 57

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 3/14/14. (SAC )

FILED
2014 Mar-14 PM 04:27
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
AVIS HOWARD,
Plaintiff,
v.
U.S. STEEL CORPORATION,
Defendant.

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CIVIL ACTION NO.
2:11-cv-01010-KOB

MEMORANDUM OPINION
I. INTRODUCTION
This matter comes before the court upon the magistrate judge’s “Report and
Recommendation.” (Doc. 50). The magistrate judge wrote the report and recommendation in
response to “Defendant United States Steel Corporation’s Motion for Summary Judgment,” (doc.
38), and “Defendant United States Steel Corporation’s Motion to Strike Declaration of William
Jackson and Memorandum of Law in Support Thereof,” (doc. 47).
This case involves claims that United States Steel Corporation violated Title VII of the
Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e to 2000e-17 (West 2006); the Americans with
Disabilities Act of 1990, 42 U.S.C.A §§ 12101–12213 (West 2006); and the Family and Medical
Leave Act of 1993, 29 U.S.C.A. §§ 2601–2654 (West 2006). In his report, the magistrate judge
recommends granting the defendant’s motion for summary judgment as to all claims and
deeming as moot the defendant’s motion to strike. In response, the plaintiff filed “Plaintiff’s

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Objection to the Magistrate’s Recommendation,” (doc. 54), and the defendant filed its “Response
to Plaintiff’s Objection to Magistrate Judge’s Report and Recommendation,” (doc. 56).
After careful consideration of the record, the report and recommendation, and all the
objections filed by the plaintiff, the court will ADOPT the report of the magistrate judge and
ACCEPT his recommendation. Accordingly, for the following reasons, the court will GRANT
the defendant’s motion for summary judgment, ENTER JUDGMENT for the defendant, and
DEEM the defendant’s motion to strike MOOT.
II. THE PLAINTIFF’S OBJECTIONS
In her response to the magistrate judge’s report and recommendation granting summary
judgment in favor of the defendant, the plaintiff objects to the magistrate judge’s findings of law
and fact on all claims very generally. In addition, the plaintiff objects to the magistrate judge’s
findings of law and facts regarding her ADA claims, her Title VII claims, her FMLA interference
claim, her FMLA retaliation claim, her showing of pretext generally in the case, and her showing
of damages. Her shot-gun objections fall short of reaching their target, much as her shot-gun
complaint also fails.
A. PLAINTIFF’S OBJECTION TO ALL THE FACTUAL AND LEGAL FINDINGS OF
THE MAGISTRATE JUDGE FOR FAILURE TO COMPLY WITH THE SUMMARY
JUDGMENT STANDARD
In the plaintiff’s first objection, she claims very generally that throughout the magistrate
judge’s report and recommendation, the magistrate judge draws improper inferences in favor of
the defendant, formulates arguments on behalf of the defendant not raised, and makes inferences
and conclusions not based on reason or the law.

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District courts must review all properly challenged portions of a magistrate judge’s report
de novo. Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1)(C) (2012). However, “[p]arties
filing objections to a magistrate's report and recommendation must specifically identify those
findings objected to. Frivolous, conclusive, or general objections need not be considered by the
district court.” Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988) (emphasis added)
(citing Nettles v. Wainwright, 677 F.2d 404, 410 n.8 (5th Cir. 1982)).
Because the plaintiff’s first objection is general enough to cover the entire report and
recommendation and because the plaintiff was on notice that “[o]bjections not meeting the
specificity requirements [outlined in the report and recommendation] will not be considered by a
district judge,” (doc. 50), the court will not separately address the substance of the plaintiff’s first
objection. In accepting and adopting the magistrate judge’s report and recommendation in its
entirety, the court has fulfilled its duty to carefully review the magistrate judge’s unchallenged
legal findings de novo and unchallenged factual findings for plain error. Dupree v. Warden, 715
F.3d 1295 (11th Cir. 2013); Nettles, 677 F.2d 404. The plaintiff’s first objection is not specific
enough to require anything more.
B. PLAINTIFF’S OBJECTIONS TO THE MAGISTRATE JUDGE’S FINDINGS OF
LAW AND FACT REGARDING HER ADA CLAIMS.
The plaintiff also objects to the magistrate judge’s findings of law and fact regarding her
claim that she was discriminated against on the basis of her disability in violation of the ADA.
More specifically, the plaintiff claims that the magistrate judge erred in granting summary
judgment on her ADA claims because the defendant had not met its initial burden of
demonstrating that the plaintiff was not entitled to relief; the defendant did not adequately

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address her claim that she was denied a reasonable accommodation prior to her termination; and
the defendant could not show she did not suffer damages for her injuries prior to her termination.
Under the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), “the plaintiff has the initial burden of establishing a prima facie case of
disability discrimination.” Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189 (11th Cir.
2004) (emphasis added). Thus, the plaintiff’s claims that the defendant failed to prove she was
not subject to disability discrimination are inapposite. Plaintiff bears the initial burden of proof in
this case and, for the reasons discussed in the magistrate judge’s report, did not meet it.
As to the plaintiff’s objection to summary judgment on her reasonable accommodation
claim, even if this court assumes that she was entitled to and requested an accommodation of
retraining after her periods of sick leave in 2008, she failed to show that the defendant did not
adequately accommodate her. While the defendant may not have retrained the plaintiff in her
former position after her health-related absences, “‘an employer is not required to accommodate
an employee in any manner in which the employee desires.’” Stewart v. Happy Herman’s
Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997) (quoting Lewis v. Zilog, Inc., 908 F.
Supp. 931, 947 (N.D. Ga. 1995)). Instead, qualified disabled employees are only entitled to a
reasonable accommodation. Under the ADA, a reasonable accommodation may include
reassignments to a vacant position. See 42 U.S.C.A. § 12111(9)(B) (West 2006).
In this case, the plaintiff admits that she did not experience a decrease in pay when she
was reassigned to other jobs on the dualine. (Def. Ex. A, Pl. Dep. at 149). Nor does she claim
that she was unable to perform the duties to which she was assigned without an additional
accommodation. (Def. Ex. A, Pl. Dep. at 158). Without more evidence that the reassignment was
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punitive, therefore, the plaintiff cannot make a prima facie case that she was not given a
reasonable accommodation.
The plaintiff’s final objection that the defendant failed to show that the plaintiff did not
suffer damages prior to 2009 for certain unspecified violations of the ADA is both extremely
vague and moot. As to the plaintiff’s failure to accommodate theory of liability, this court has
already determined that the plaintiff is unable to make a prima facie case. As to the plaintiff’s
claim that she was terminated on the basis of her disability, the magistrate judge correctly found
that the plaintiff was not fired until January 5, 2009.1 Even assuming, therefore, that she was
fired on the basis of her disability, any damages she would have received would have occurred in
2009—after the termination.
More importantly, the plaintiff cannot show damages at all for her termination because
she fails to prove she was a qualified individual capable of performing the essential functions of
her job. As the magistrate judge pointed out, the plaintiff does not even attempt to explain how
she could be totally and permanently disabled as of January 1, 2009 according to her social
security disability benefits and as of December 30, 2008 according to her U.S. Steel Sickness and
Accident benefits and still be a qualified to perform her job prior to her termination on January 5,
2009 or at the end of the year-long payment of sickness and accident benefits. (See Doc. 50, at
14–16). Her complete failure to address this inconsistency makes entry of summary judgment on

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Although the plaintiff tries to argue that she was terminated on December 23, 2008, (pl.
brief at 14 ¶ 1), as noted in the Report and Recommendation, she admitted in her deposition that
the last day she worked was December 29, 2008, (pl. dep. at 64), when she attended a discipline
hearing for prior mistakes. For this and the other reasons discussed in the Report and
Recommendation, the court finds that the plaintiff was terminated on January 5, 2009. (See Def.
Ex. F, “Supplemental Disciplinary Notification.”).
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her ADA termination claim appropriate. Ultimately, because she cannot make a prima facie case
for either her termination or failure to accommodate claim, she is not entitled to withstand the
defendant’s motion for summary judgment on her ADA claim.
C. PLAINTIFF’S OBJECTIONS TO THE MAGISTRATE JUDGE’S FINDINGS OF
LAW AND FACT REGARDING THE PLAINTIFF’S SEX DISCRIMINATION
CLAIMS.
The plaintiff also objects to the magistrate judge’s findings of law and facts regarding her
sex discrimination claims under Title VII. More specifically, she objects to the magistrate judge’s
determination that the plaintiff had abandoned all her claims of sex discrimination other than
discriminatory discharge. In addition, she objects to the magistrate judge’s determination that her
comparator evidence was not strong enough to show that the defendant’s purported reasons for
discharging the plaintiff were pretextual.
The magistrate judge correctly found that the plaintiff abandoned all of her claims of sex
discrimination based on adverse employment actions other than her discriminatory discharge. As
to her hostile work environment claim, the plaintiff both failed to contest the claim in her brief
and admitted in her deposition that she was not actually subjected to a hostile work environment.
(See Pl. Dep. at 160). Similarly, as to her claims that the defendants discontinued her health
insurance coverage early because of her sex, the plaintiff failed to dispute the defendant’s factual
assertion that it provided insurance to the plaintiff for almost a year after her employment was
terminated—the maximum time allowed to anyone under company policy. (Def. Brief at 9, ¶¶
40–41.).2 Because the plaintiff pointed to no other specific claims of sex discrimination that the
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Although plaintiff’s deposition indicates that she believes her insurance coverage
discontinued shortly after her termination in January of 2009, (pl. dep. at 52–53, 120–124), the
uniform initial order in this case stipulates that “[a]ll material facts set forth in the statement
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magistrate judge erroneously deemed abandoned, this court finds that the magistrate judge did
not err in determining that the plaintiff’s only remaining sex discrimination claim was for her
alleged discriminatory discharge.
In addressing her discriminatory discharge allegations, the magistrate judge correctly
concluded that the plaintiff’s comparator evidence showing other male coworkers were
disciplined more frequently than the plaintiff and were not fired was insufficient. While the
plaintiff did submit records of the disciplinary actions taken against her male coworkers, (pl. ex.
E), she failed to “show that [s]he and the employees [were] similarly situated in all relevant
aspects.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (emphasis added). “In
determining whether employees are similarly situated for the purpose of establishing a prima
facie case, it is necessary to consider whether the employees are involved in or accused of the
same or similar conduct and are disciplined in different ways.” Id.
Here, while the record the plaintiff submitted does provide the disciplinary measures
taken, the description of the offense is often no more specific than “Unsatisfactory work,”
“Inattentive to duties,” “Poor workmanship.” (Pl. Ex. E). Even if this court assumes the
plaintiff’s comparators held the same position as the plaintiff and were identical to her in every
other respect, no reasonable jury could find that the plaintiff’s evidence suggests she was
discriminated against on the basis of her sex. The plaintiff simply failed to meet her burden of
proffering some evidence showing that these individuals received different treatment for the

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. 10). With
this admonition and the requirements of Rule 56, her failure to rebut the defendant’s statement of
facts about the insurance coverage provided to the plaintiff renders that fact deemed admitted.
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same kinds of errors that ultimately caused the plaintiff to lose her job. The magistrate judge,
therefore, did not err when he recommended granting summary judgment on the plaintiff’s Title
VII discriminatory discharge claim.
D. PLAINTIFF’S OBJECTIONS TO THE MAGISTRATE JUDGE’S FINDINGS OF
LAW AND FACT REGARDING FMLA INTERFERENCE CLAIM.
The plaintiff also objects to the magistrate judge’s grant of summary judgment on her
FMLA interference claim. More specifically, the plaintiff argues that the defendant failed to meet
its burden of showing she was not entitled to relief and the magistrate judge erred in determining
the plaintiff suffered no damage as a result of the alleged interference.
Contrary to the plaintiff’s objection, the defendant did affirmatively argue that it did not
interfere with the plaintiff’s FMLA rights. (Def. Brief. at 31–33). While the FMLA guarantees
only twelve weeks of unpaid leave in a twelve-month period for a serious health condition, 29
C.F.R. § 825.200(a)(4) (2010), the defendants provided twelve months of paid leave to the
plaintiff. (Def. Brief at 9, ¶ 39). The defendant clearly lays out this argument in its brief, and
again, the plaintiff, not the defendant, bears the burden of proving her FMLA claim. Leach v.
State Farm Mut. Auto. Ins. Co., 431 Fed. App’x 771 (11th Cir. 2011).
Similarly, the plaintiff cannot show that she was damaged in any way by the defendant’s
alleged failure to label her paid twelve-month sick time as FMLA leave. Although the plaintiff
contests that her health insurance coverage discontinued near the time of her termination, (def.
ex. A, pl. dep. at 52–53; 120–21), the defendant’s contrary assertion that it actually provided
health insurance coverage for the entire period the plaintiff received sickness and accident
benefits is deemed admitted, as discussed previously in footnote 2 in this opinion. No reasonable

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jury could find that the plaintiff was denied the very meager benefits promised her under the
FMLA when, in fact, she received much more than the FMLA required. Because she suffered no
damage, the plaintiff’s FMLA claim is without merit and summary judgment is appropriate.
E. PLAINTIFF’S OBJECTIONS TO THE MAGISTRATE JUDGE’S FINDINGS OF
LAW AND FACT REGARDING HER FMLA RETALIATION CLAIM.
The plaintiff also objects to the magistrate judge’s determination that the plaintiff failed
to establish pretext in her FMLA retaliatory termination claim based on the temporal proximity
between her request for FMLA leave on December 23, 2009 and her receipt of the disciplinary
notice the same day. In addition, she objects to the magistrate judge’s determination that she
waived any argument about other adverse employment actions being based on her requests for
FMLA leave.
Contrary to the plaintiff’s assertion that the magistrate judge granted summary judgment
on her FMLA retaliatory termination claim solely because she could not demonstrate pretext, the
magistrate judge’s report focused on the fact that even if the plaintiff’s termination was based on
her request for FMLA leave, she is unable to recover because she cannot demonstrate that she
was entitled to reinstatement. See Grace v. Adtran, Inc. 470 Fed. App’x 812, 816 (11th Cir.
2012) (holding that employer did not interfere with employee’s FMLA right to reinstatement
where employee was still unable to perform an essential function of her position at the end of the
12 week leave); see also Clark v. Macon County Grehound Park, Inc., 727 F. Supp. 2d 1281
(M.D. Ala. 2010).
As discussed previously, the plaintiff claims to have been totally disabled several days
prior to her discharge on January 5, 2009. Thus, she cannot show that she suffered any monetary

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losses from her termination or that she was entitled to reinstatement. (See Doc. 50, at 40). In
addition, the plaintiff’s oft-mentioned loss of insurance is not evidence of damages because the
plaintiff forfeited this argument by not objecting to the defendant’s undisputed facts. See infra
note 2. Thus, summary judgment on the plaintiff’s FMLA retaliatory termination claim is proper.
In addition, contrary to the plaintiff’s objection that the magistrate judge erroneously
found that she had waived her claims on other unspecified retaliatory acts, the magistrate judge
when into great detail analyzing the possibility that the five-day suspension issued on the same
day the plaintiff requested FMLA leave was retaliatory. Ultimately, for the reasons stated in the
Report and Recommendation, the magistrate judge correctly concluded that the plaintiff could
not show that the suspension was pretext. (See Doc. 50 at 44–48). To the extent plaintiff objects
to the magistrate judge overlooking other unspecified retaliatory acts, the plaintiff has the burden
to state all claims she wishes the court to address. Because she did not clearly do so in her brief,
in her response to the defendant’s motion for summary judgment (which clearly attempted to
address all of the plaintiff’s stated claims), or in her vague objection to the magistrate judge’s
report and recommendation, she abandons any claims not raised.
F. PLAINTIFF’S OBJECTION TO THE MAGISTRATE JUDGE’S FINDINGS OF
LAW AND FACT REGARDING PRETEXT.
The plaintiff also claims that the magistrate judge erroneously dismissed her arguments
that the defendant’s stated reasons for disciplining the plaintiff were pretext. Without going into
any more detail than she did in her brief, the plaintiff summarily restates her position that certain
of her coworkers have “received more disciplinary action for poor workmanship” than the
plaintifff and “[y]et, they have not been terminated by the defendant.” (Pl. Br. at 11). The

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plaintiff’s objection completely ignores the magistrate judge’s clear explanation of why the
comparator evidence the plaintiff proffered was insufficient. Without more information about the
comparators or the mistakes they made relative to the punishment the defendant rendered, this
court cannot conclude that the plaintiff is able to show pretext. Holifield v. Reno, 115 F.3d 1555,
1562 (11th Cir. 1997); (see also Doc. 50 at 44–48).
In addition, the plaintiff argues that the magistrate judge erred when he determined that
what mattered in determining whether her termination was lawful is not whether she actually
made the mistakes cited as justification, but whether the employer thought she did. The plaintiff
claims that requiring her to show both that she was not responsible for the misconduct and that
the defendants knew she was not responsible for the misconduct but took adverse action anyway
is too high a burden to meet. However, every pretext argument requires the plaintiff to
demonstrate—or at least call into question—the defendant’s true motivations. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 804–05 (1973). Such a standard is required to preclude
the court from stepping in to become a “‘a super-personnel department that reexamines an
entity’s business decisions’”—a prohibited role and practice. Elrod v. Sears, Roebuck and Co.,
939 F.2d 1466, 1470 (11th Cir. 1991) (quoting Mechnig v. Sears, Roebuck and Co., 864 F.2d
1359, 1365 (7th Cir. 1988)).
The magistrate judge correctly characterized the plaintiff’s burden and found that the
plaintiff failed to demonstrate both that she did not make the mistakes and that the defendants
knew she did not make the mistakes and disciplined her anyway in her effort to show pretext. See
Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1332–33 (11th Cir. 1998) (“The pretext
inquiry is concerned with the employer’s perception of the employee’s performance, not the
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employee’s own beliefs.”); (see also Doc. 50, at 28–32). Thus, summary judgment on all claims
involving pretext was proper.
G. PLAINTIFF’S OBJECTION TO THE MAGISTRATE JUDGE’S FINDINGS OF
LAW AND FACT REGARDING DAMAGES.
The plaintiff finally objects to the magistrate judge’s determination that she failed to
show damages under the FMLA for lost pay during her five-day suspension prior to her
termination or for the loss of her medical insurance.
As to the plaintiff’s claim of lost pay during her suspension, the plaintiff fails to show
that she actually served a suspension. While the plaintiff’s notice stated that her suspension
should take place from December 24–28 of 2008, (def. ex. F), the notice also states that if she
was scheduled to work those dates, she should work as scheduled and would later be notified of
the date upon which she would actually be off of work. Id. In addition, the record makes clear
that no one in her department worked between December 24–29. (Pl. Ex. I, pt. 2). Finally, even
assuming she had served an unpaid suspension, the plaintiff would not have an FMLA claim
because, as previously discussed, she could not show that the defendant’s reasons for issuing the
suspension were pretext.
As to the plaintiff’s claim that she suffered a loss of medical insurance, the magistrate
judge correctly concluded that the fact that plaintiff’s insurance remained active for nearly a year
after her termination was deemed admitted when the plaintiff failed to object to it. Therefore, she
cannot establish damages on those grounds.

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III. CONCLUSION
For these reasons, the court will ADOPT the report of the magistrate judge and
ACCEPT his recommendation. Accordingly, the court will GRANT the motion for summary
judgment, ENTER JUDGMENT in favor of defendant United States Steel Corporation, and
DEEM United States Steel Corporation’s motion to strike MOOT.
DONE and ORDERED this the 14th day of March, 2014.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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