Udeh v. Winn-Dixie Montgomery, LLC

Filing 60

MEMORANDUM OPINION - The Court DENIES Winn-Dixies motion for summary judgment as to Ms. Udehs pregnancy discrimination claim and GRANTS Winn-Dixies motion for summary judgment as to Ms. Udehs negligence claim (Doc. 24 ); The Court DENIES Winn-Dixies motion to strike as to Ms Udehs affidavit, Ms. Warrens affidavit, Ms. Westons letter, and Ms. Udehs exhibits submitted in response to the Courts order requesting additional supporting evidence (Docs. 31 , 54 ) Signed by Judge Madeline Hughes Haikala on 3/31/2015. (KEK)

FILED
2015 Mar-31 PM 01:13
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
VARONICA L. UDEH,

)
)
Plaintiff,
)
)
v.
)
)
WINN-DIXIE MONTGOMERY, )
LLC,
)
)
Defendant.
)

Case No. 2:11-cv-1722-MHH

MEMORANDUM OPINION
Plaintiff Varonica Udeh is a former employee of defendant Winn-Dixie
Montgomery, LLC. In June of 2009, Ms. Udeh went on maternity leave. The
following month, Winn-Dixie terminated Ms. Udeh’s employment. Ms. Udeh
contends that Winn-Dixie discriminated against her by terminating her employment
while she was on maternity leave.1 Winn-Dixie maintains that it terminated Ms.
Udeh’s employment because she abandoned her job. Pursuant to Federal Rule of
Civil Procedure 56, Winn-Dixie asks the Court to enter judgment in its favor on Ms.
Udeh’s pregnancy discrimination claim. (Doc. 25). For the reasons stated below,

1

Ms. Udeh initially also asserted a claim for negligence. (Doc. 1, ¶¶ 51–57). In her response to
Winn-Dixie’s motion for summary judgment, Ms. Udeh “concedes that she does not have a
cognizable negligence claim.” (Doc. 29, p. 17). Therefore, the Court grants Winn-Dixie’s
motion for summary judgment on that claim.
1

the Court denies Winn-Dixie’s motion for summary judgment.
I.

STANDARDS OF REVIEW
“The court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). To demonstrate that there is a genuine dispute
concerning a material fact, a party opposing a motion for summary judgment must
cite “to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions, interrogatory answers, or
other materials.” Fed. R. Civ. P. 56(c)(1)(A). “The court need consider only the
cited materials, but it may consider other materials in the record.” Fed. R. Civ. P.
56(c)(3).

The Court must view the evidence in the record in the light most

favorable to the non-moving party. Atheists of Florida, Inc. v. City of Lakeland,
Fla., 713 F.3d 577, 589 (11th Cir. 2013) (quoting Johnson v. Booker T. Washington
Broad. Serv., Inc, 234 F.3d 501, 507 (11th Cir. 2000)); Hill v. Wal-Mart Stores, Inc.,
510 Fed. Appx. 810, 813 (11th Cir. 2013). “If a party fails to properly support an
assertion of fact or fails to properly address another party’s assertion of fact as
required by Rule 56(c), the court may [] give an opportunity to properly support or
address the fact” or “issue any other appropriate order.” Fed. R. Civ. P. 56(e).

2

Winn-Dixie asks the Court to disregard some of the evidence that Ms. Udeh
has presented in opposition to the company’s summary judgment motion. Under
Rule 56(c)(2) of the Federal Rules of Civil Procedure, at the summary judgment
stage, “[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). These objections function like trial objections, and “[t]he burden is on the
proponent [of the evidence] to show that the material is admissible as presented or to
explain the admissible form that is anticipated.” Fed. R. Civ. P. 56(c)(2) advisory
committee’s note (2010 amendments). If the Court finds that summary judgment
evidence will be available at trial in an admissible form, then the Court may consider
the evidence when deciding a summary judgment motion even though the evidence
is not in an admissible form at the summary judgment stage. For example, “a
district court may consider a hearsay statement in passing on a motion for summary
judgment if the statement could be reduced to admissible evidence at trial or reduced
to admissible form.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1293–94 (11th
Cir. 2012) (internal quotation marks omitted). A district court has broad discretion
to determine at the summary judgment stage what evidence it will consider pursuant
to Rule 56(c)(2). See Green v. City of Northport, 2014 WL 1338106, at *1 (N.D.
Ala. March 31, 2014).

3

II.

FACTUAL AND PROCEDURAL BACKGROUND
In January 2009, Winn-Dixie hired Ms. Udeh as an in-store coordinator at the

company’s Bessemer, Alabama store.

(Doc. 28-1, p. 78).

Ms. Udeh was

approximately three months pregnant when she went to work for Winn-Dixie.
(Doc. 28-1, pp. 17, 78). In April or May 2009, Amanda Williams, the front-end
manager at the Bessemer store, began asking Ms. Udeh when she would take
maternity leave. (Doc. 28-1, p. 88). In May or June of 2009, Monica Sledge, the
store manager, also asked Ms. Udeh when she would schedule maternity leave.
(Doc. 28-1, p. 90).

Ms. Udeh told Ms. Williams and Ms. Sledge that she intended

to take maternity leave by the end of June. (Doc. 28-1, pp. 92–93).
Ms. Udeh asked Ms. Sledge and Ms. Williams for maternity leave request
forms. (Doc. 28-1, pp. 98–100). Ms. Sledge responded that she did not know how
to access Winn-Dixie’s maternity leave forms. (Doc. 28-1, pp. 99, 102). Ms.
Williams told Ms. Udeh that she would print the forms and leave them in the office
for her. (Doc. 28-1, p. 93). Before going on leave, Ms. Udeh looked for the forms
in the office but could not find them. (Doc. 28-1, p. 101). Ms. Udeh did not follow
up with Ms. Williams when she could not find the forms. (Doc. 28-1, p. 101).
Ms. Williams was on vacation when Ms. Udeh was ready to begin her
maternity leave. Ms. Sledge told Ms. Udeh to start her leave and complete the

4

forms when Ms. Williams returned. (Doc. 28-1, p. 99). Ms. Udeh began her leave
on June 11, 2009, a few weeks earlier than she originally planned. (Doc. 28-1, pp.
94, 98). She delivered her son on June 20, 2009. (Doc. 28-1, p. 17).
After having her baby, Ms. Udeh spoke with Ms. Williams about completing
the maternity leave forms. (Doc. 28-1, pp. 156–58). On June 23 or June 24, 2009,
Ms. Udeh picked up the leave forms from Ms. Williams at the store. (Doc. 28-1,
pp. 166–67). Ms. Williams did not give Ms. Udeh a specific date to return the
forms. (Doc. 28-1, p. 167). Ms. Udeh does not know the exact date, but she
returned the completed forms to the store sometime before July 4, 2009. (Doc.
28-1, pp. 172–73).
Ms. Udeh gave the completed leave paperwork to Customer Service Lead
Tara Warren. (Doc. 28-1, p. 173; Doc. 28-7, ¶ 7). Ms. Warren gave the completed
forms to In-Store Coordinator Rachel Weston. (Doc. 28-7, ¶ 8). Ms. Warren saw
Ms. Weston place the forms in the fax machine and heard the machine faxing the
leave papers. (Doc. 28-7, ¶ 9). After faxing the paperwork, Ms. Weston took the
forms to Ms. Sledge in her office. (Doc. 28-7, ¶ 10). Ms. Sledge states that she
does not know whether Ms. Udeh was ever able to obtain her leave paperwork.
(Doc. 28-4, p. 13).
After Ms. Udeh turned in the leave request forms, no one from Winn-Dixie

5

called her or explicitly told her that her request was granted. (Doc. 28-1, pp. 185;
327–28). Ms. Udeh “assum[ed] it was granted” when Ms. Sledge told her to pick
up the paperwork when Ms. Williams returned from vacation. On this point, Ms.
Udeh testified:
Q.

Are you assuming that she meant your request that you had yet
put in would be granted?

A.

Yes.

Q.

Okay. But you can’t testify here today that after you turned in
your paperwork anyone [] told you, Ms. Udeh, your request is
granted, correct?

A.

Not so much in those words, but in actions, yes.

(Doc. 28-1, pp. 328–29). Winn-Dixie=s Benefits Department does not have a record
of Ms. Udeh’s Leave of Absence Request Form or related documents. (Doc. 28-8,
p. 13). The Leave of Absence Request Form states that it should be faxed to
Winn-Dixie’s Human Resources Department. (Doc. 26-2, p. 1). Ms. Udeh does
not know whether the form was faxed according to these instructions. (Doc. 28-1,
p. 176).
On July 8 or 9, 2009, Ms. Udeh called Ms. Sledge to see if she could return to
work earlier than originally planned. (Doc. 29, p. 30; Doc. 28-1, p. 195). During
the call, Ms. Sledge told Ms. Udeh that the store had given Udeh’s position as an
in-store coordinator to Lisa Hubbard because Ms. Hubbard had been at the store
6

longer than Ms. Udeh. (Doc. 28-1, pp. 195–96). Ms. Sledge told Ms. Udeh that
she could return to work in a lower-paying cashier position. (Doc. 28-1, pp. 197–
98). Ms. Udeh agreed to take that position. (Doc. 28-1, p. 198).2
According to Ms. Udeh, she told Ms. Sledge that she needed to call her doctor
and confirm that she could return to work early. (Doc. 28-1, p. 199). Ms. Sledge
told Ms. Udeh to call her doctor and find out whether she could come back to work.
(Doc. 28-1, p. 199). Ms. Sledge also informed Ms. Udeh that she was putting Ms.
Udeh on the schedule as a cashier. Ms. Sledge advised Ms. Udeh that she would be
terminated if she did not show up for her shift. (Doc. 28-1, p. 199). Ms. Sledge
did not tell Ms. Udeh when she was putting her on the schedule. (Doc. 28-1, p.
199).3
After Ms. Udeh contacted her doctor, Ms. Udeh called Ms. Sledge and
informed her that the doctor would not let Ms. Udeh return to work until August 12,
2009, after her postpartum checkup. (Doc. 28-1, pp. 200–04). Ms. Sledge told
Ms. Udeh to let her know when she could come back to work, and the cashier’s
2

Ms. Sledge testified that she never told Ms. Udeh she would attempt to find her a lower-paying
cashier position. (Doc. 26-4, p. 1).
3

Ms. Sledge testified that she gave Ms. Udeh her shift and that she would be working as a
Customer Service Lead, which according to Ms. Sledge is “basically the same as an [In-Store
Coordinator] except she wouldn’t be holding a safe.” (Doc. 26-3, p. 48; Sledge Depo. at 47).
Ms. Udeh’s position and pay as In-Store Coordinator did not change in the Winn-Dixie computer
system. (Doc. 26-3, p. 50). Ms. Sledge asserts that she did not have the authority to change Ms.
Udeh’s position or pay in the computer system. (Doc. 26-3, pp. 51–52; Doc. 28-4, p. 15).
7

position would be waiting for her. (Doc. 28-1, p. 204). Ms. Udeh did not talk to
Ms. Sledge again after that conversation. (Doc. 28-1, p. 205).4
On or around July 13, 2009, Lorre Prisby, co-director of the Bessemer store,
called Ms. Udeh. (Doc. 28-1, p. 206). Ms. Prisby told Ms. Udeh that the company
had terminated Ms. Udeh’s employment, and that if Ms. Udeh wanted to come back
to the store, she would have to reapply for her job. (Doc. 28-1, pp. 206–07). When
Ms. Udeh asked why she was terminated, Ms. Prisby told her that her maternity
leave paperwork was not on file with the office, and that after six weeks, the
computer automatically deletes an employee from the system. (Doc. 28-1, p. 208).
On July 13, 2009, Ms. Udeh had been on maternity leave for fewer than six weeks.
(See pg. 5, supra). Ms. Prisby testified that she does not know why Ms. Udeh was
terminated, and no one contacted Ms. Udeh to tell her that the company was
prepared to terminate Ms. Udeh’s employment. (Doc. 28-3, p. 12).
According to Ms. Sledge, Winn-Dixie terminated Ms. Udeh when she failed
to show up for her assigned shift.

(Doc. 26-3, p. 54; Doc. 28-4, p. 15).

Winn-Dixie’s policy provides that “a team member with unexcused Absences for

4

Ms. Sledge has provided conflicting testimony regarding whether Ms. Udeh contacted her again.
In a statement prepared under the penalty of perjury on March 31, 2010, Ms. Sledge stated that Ms.
Udeh contacted her to tell her she was not coming back to work. (Doc. 26-4, p. 1). In her
February 10, 2011 deposition, Ms. Sledge testified that she could not remember having another
conversation with Ms. Udeh. (Doc. 26-3, p. 53).
8

three (3) consecutively scheduled work days will be considered to have abandoned
his/her job and will be terminated.” (Doc. 28-8, p. 13). Generally, a manager will
call an employee who is late or absent. (Doc. 26-3, p. 56; Doc. 28-2, p. 10; Doc.
28-5, pp. 13–14). According to front-end manager Latasha Poe, a manager always
calls an employee when he or she does not show up for an assigned shift. (Doc.
28-2, p. 10). Neither Ms. Sledge nor Ms. Prisby knows or remembers whether a
manager called Ms. Udeh to find out why she was not at work for her assigned shifts.
(Doc. 28-3, p. 12; Doc. 28-4, p. 16).
Ms. Prisby and Ms. Sledge both deny calling Ms. Udeh to tell her she was
terminated, and neither knows how Ms. Udeh learned of her termination. (Doc.
26-3, pp. 54-55; Doc. 28-3, p. 11).

Ms. Sledge testified that she could not

remember whether she or Ms. Prisby keyed Ms. Udeh’s termination into the
computer, but Ms. Sledge stated that either she or Ms. Prisby must have done so.
(Doc. 28-4, p. 19).
Following her termination, Ms. Udeh filed a Charge of Discrimination with
the Equal Employment Opportunity Commission.

(Doc. 1, p. 12).

After

investigating Ms. Udeh’s charge, the EEOC issued a Dismissal and Notice of Right
to Sue on February 24, 2011. (Doc. 1, p. 13). Ms. Udeh filed a complaint in
federal court on May 24, 2011. (Doc. 1). After the parties engaged in discovery,

9

Winn-Dixie filed a motion for summary judgment. (Docs. 24, 25, 28, 29, 30).
After the summary judgment briefing, Winn-Dixie filed a motion to strike certain
exhibits submitted in opposition to its motion for summary judgment. The parties
submitted briefs concerning Winn-Dixie’s motion to strike. (Docs. 31, 37, 39).
On October 1, 2014, pursuant to Rules 1 and 56(e) of the Federal Rules of
Civil Procedure, the Court gave Ms. Udeh the opportunity to support her assertion
that Winn-Dixie replaced her with a non-pregnant individual. (Doc. 48). Ms.
Udeh responded by filing declarations from herself and Ms. Carmichael. (Doc. 53).
Winn-Dixie moved to strike these declarations. (Doc. 54). On this record, the
Court considers Winn-Dixie’s motions to strike and motion for summary judgment.
III.

WINN-DIXIE’S MOTIONS TO STRIKE
Before the Court may decide whether the summary judgment record contains

disputed material facts that preclude summary judgment on Ms. Udeh’s pregnancy
discrimination claim, the Court must determine the scope of the summary judgment
record. Winn-Dixie asks the Court to strike from the record affidavits from Tara
Warren and Ms. Udeh and a letter from Rachael Weston. (Doc. 31). Winn-Dixie
also challenges the declarations of Ms. Udeh and Ms. Carmichael which Ms. Udeh
submitted in response to the Court’s order requesting additional supporting
evidence. (Doc. 54). The Court disagrees with the arguments that Winn-Dixie

10

offers in support of its motions to strike.
A.

Ms. Udeh’s Affidavit
Winn-Dixie asks the Court to strike Ms. Udeh’s affidavit from the record

because “it appears that the Notary Public who notarized the signature on the
affidavit witnessed a male.” (Doc. 31, pp. 2–3; see Doc. 28-6, p. 8). “Courts
should not be unnecessarily hyper-technical and overly harsh on a party who
unintentionally fails to make certain that all technical, non-substantive requirements
of execution are satisfied.” Hughes v. Amerada Hess Corp., 187 F.R.D. 682, 685
(M.D. Fla. 1999) (internal quotation marks omitted) (denying defendant’s motion to
strike an entire affidavit based on mistakenly worded notary section of affidavit).
The notary’s use of the male pronoun in reference to Ms. Udeh likely is a typo. The
Court will not strike Ms. Udeh’s affidavit based on the notary’s mistake.
Winn-Dixie also contends that parts of Ms. Udeh’s affidavit “contain
“inadmissible hearsay, lay witness opinion evidence, are not based upon personal
knowledge, and are due to be stricken.” (Doc. 31, p. 3). Winn-Dixie asserts that
the Court should strike the following statements:
Statement 1: “When I left work it was widely known among employees
and management of the store that I was pregnant and going on
maternity leave.” (Doc. 28-6, ¶ 12).
Statement 2: “Ms. Warren said she would give the paper work [sic] to
Rachael Weston because Ms. Williams was not there.” (Id. ¶ 21).
11

Statement 3: “Before leaving the store, Ms. Warren told me Ms.
Weston was going to fax in my paperwork.” (Id. ¶ 23).
Statement 4: “I thought my leave was granted since I turned in my
completed paperwork and obtained a letter from Rachael Weston
stating I had been on maternity leave since June 11th.” (Id. ¶ 24).
Statement 5: “Dr. Mahmood told me I could not return to work until
after my postpartum checkup, which was scheduled for August 12,
2009.” (Id. ¶ 35).
Statement 6: “I called Ms. Sledge right back and told her my doctor
said I could not return until after my postpartum checkup on August 12,
2009.” (Id. ¶ 36).
Statement 1 does not contain hearsay. It does include Ms. Udeh’s opinion
that her pregnancy and her intent to go on maternity leave were widely known
among Winn-Dixie employees and management. A lay witness may offer an
opinion if it is “rationally based on the witness’s perception.” Fed. R. Evid. 701.
Ms. Udeh’s opinion is rationally based on her perceptions, including discussions that
she had with various Winn-Dixie co-workers about her pregnancy and maternity
leave. (See Doc. 28-1, pp. 87–92; Doc. 28-4, p. 12–13; Doc. 28-5, p. 11). Thus,
the Court declines to strike statement 1 from the record.
Statements 2 through 6 would constitute inadmissible hearsay if offered for
the truth of the matter asserted. See Fed. R. Evid. 801(c) (defining hearsay as “a
statement that . . . a party offers in evidence to prove the truth of the matter asserted

12

in the statement”). However, a statement is not hearsay if it is “offered solely for
the fact that it was made and the effect it might have had upon its hearer.” See
United States v. Cruz, 805 F.2d 1464, 1478 (11th Cir. 1986). Ms. Udeh may offer
statements 2 through 6 to establish that the statements were made and to describe the
effect that the statements had on her. Ms. Udeh’s testimony that these statements
were made is based on Ms. Udeh’s personal knowledge. Therefore, the statements
are not hearsay.
In addition, Ms. Warren’s statements are admissible because they are
admissions by a party opponent. See Fed. R. Evid. 801(d)(2)(D) (a statement is not
hearsay if “the statement is offered against an opposing party” and “was made by the
party’s agent or employee on a matter within the scope of that relationship and while
it existed”); see also Rowell v. BellSouth Corp., 433 F.3d 794, 800 (11th Cir. 2005)
(“[C]ourts have admitted statements of managers under Rule 801(d)(2)(D) where
there is some evidence that the statements reflected some kind of participation in the
employment decision or policy of the employer.”). Therefore, the Court denies
Winn-Dixie’s motion to strike Ms. Udeh’s affidavit.
B.

Ms. Warren’s Affidavit
Winn-Dixie asserts that the Court should strike Ms. Warren’s affidavit

because Ms. Udeh did not disclose Ms. Warren’s affidavit in accordance with Rules

13

26(a) and 26(e). (Doc. 31, pp. 3–4). Rule 26(a) requires a party to provide,
without waiting for a discovery request, the names of individuals likely to have
discoverable information that the disclosing party may use to support its clams or
defenses.

Fed. R. Civ. P. 26(a)(1)(A)(i).

In addition, a party must provide

copies of all documents that the party may use to support its claims or defenses.
Fed. R. Civ. P. 26(a)(1)(A)(ii).
Under Rule 26(e):
[a] party who has made a disclosure under Rule 26(a) – or who has
responded to an interrogatory, request for production, or request for
admission – must supplement or correct its disclosure or response: (A)
in a timely manner if the party learns that in some material respect the
disclosure or response is incomplete or incorrect, and if the additional
or corrective information has not otherwise been made known to the
other parties during the discovery process or in writing . . .
Fed. R. Civ. P. 26(e)(1)(A). The advisory committee notes to Rule 26(e) state that
there is “no obligation to provide supplemental or corrective information that has
been otherwise made known to the parties in writing or during the discovery
process.” Fed. R. Civ. P. 26(e) advisory committee’s note (1993 Amendment).
“District courts in this circuit . . . generally will not strike the testimony of a witness
whose role may not have been wholly revealed during the course of discovery.
Rather, the focus is on whether the moving party is aware that the affiant is an
individual with discoverable information.” Ojeda-Sanchez v. Bland Farms, LLC,

14

2010 WL 2382452, at *1 (S.D. Ga. June 14, 2010); see also Burden v. City of Opa
Locka, 2012 WL 4764592, at *7–8 (S.D. Fla. Oct. 7, 2012).
Here, Winn-Dixie was fully aware that Ms. Warren was an individual with
discoverable information.

In her initial disclosures, Ms. Udeh supplied Ms.

Warren’s name and phone number and a description of Ms. Warren’s discoverable
information. (Doc. 37-2, p. 7). Ms. Udeh also gave Winn-Dixie a copy of Ms.
Warren’s statement to the EEOC. (Doc. 37-1). Ms. Udeh’s initial disclosures,
particularly Ms. Warren’s EEOC witness statement, put Winn-Dixie on notice that
Ms. Warren had discoverable information regarding Ms. Udeh’s maternity leave
papers. (Doc. 37-1). Winn-Dixie could have deposed Ms. Warren or obtained
sworn testimony from her, but Winn Dixie chose not to. Because Winn-Dixie has
offered no colorable basis for disregarding Ms. Warren’s affidavit, the Court will not
strike that affidavit from the record.
Taking a more targeted approach, Winn-Dixie asks the Court to strike several
statements in Ms. Warren’s affidavit. Winn Dixie characterizes the statements as
inadmissible hearsay. (Doc. 31, p. 4). The Court has not relied on any of the
statements that Winn-Dixie identifies as hearsay. Therefore, Winn-Dixie’s hearsay
objection to particular statements in the Warren affidavit is moot.

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C.

Ms. Weston’s letter
Winn-Dixie contends that Rachel Weston’s letter is inadmissible hearsay.

(Doc. 31, p. 5). The Court has not relied on Ms. Weston’s letter. Consequently,
Winn Dixie’s motion to strike Ms. Weston’s letter is moot.
D.

Winn-Dixie’s Motion to Strike Exhibits Submitted in Response to the
Court’s Order
Pursuant to Rules 1 and 56(e) of the Federal Rules of Civil Procedure, the

Court gave Ms. Udeh an opportunity to support her assertion of fact that Winn-Dixie
replaced Ms. Udeh with a non-pregnant employee. (Doc. 48). In response, Ms.
Udeh supplied the declaration of Emily Carmichael, in which Ms. Carmichael states
that she was not pregnant when Winn-Dixie promoted her to the position of In-Store
Coordinator. (Doc. 53-2, p. 2). Winn-Dixie moved to strike Ms. Carmichael’s
declaration as “surprise evidence.” (Doc. 54, p. 4).
The Court denies Winn-Dixie’s motion to strike. As noted in the standard of
review, Rule 56(e) expressly authorizes a district court to offer a party “an
opportunity to properly support or address [a] fact” if the party “fails to properly
support an assertion of fact.” Moreover, Rule 1 requires district courts to construe
and administer the Federal Rules of Civil Procedure in a manner that “secure[s] the
just, speedy, and inexpensive determination of every action and proceeding.” In
16

her opposition to Winn-Dixie’s motion for summary judgment, Ms. Udeh stated that
Winn-Dixie replaced her with an employee who was not pregnant. (Doc. 29, pp.
21–23). It should come as no surprise to Winn Dixie that Ms. Udeh would try to
establish that an employee who was not pregnant replaced her; that is Ms. Udeh’s
burden under the law. And it is the Court’s option under Rule 56(e), in the interest
of a just and efficient determination of this proceeding, to offer Ms. Udeh the
opportunity to substantiate her assertion. The Court exercised that option, and it
will not strike Ms. Udeh’s response to the Court’s invitation.5
IV.

MOTION FOR SUMMARY JUDGMENT

A.

Ms. Udeh’s Pregnancy Discrimination Claim
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination

on the basis of sex.

See 42 U.S.C. § 2000e–2(a)(1).

When it adopted the

Pregnancy Discrimination Act, Congress amended Title VII to provide that
discrimination on the basis of sex includes discrimination “on the basis of
pregnancy, childbirth, or related medical conditions.”
5

Id. at § 2000e(k).

Winn-Dixie acknowledges that Ms. Udeh listed Ms. Carmichael as a witness in her initial
disclosures. (Doc. 54, p. 5). Additionally, Ms. Sledge stated in her deposition that Ms.
Carmichael filled Ms. Udeh’s position. (Doc. 28-4, p. 20). Winn-Dixie should not be surprised
by Ms. Carmichael’s declaration. (Doc. 54). To the extent that Winn-Dixie moves to strike
portions of Ms. Udeh’s submissions that reach beyond the information that the Court gave Ms.
Udeh an opportunity to place in the record, the motion is moot because the Court has relied only on
Ms. Carmichael’s statement that she was not pregnant when Winn-Dixie promoted her to the
position of In-Store Coordinator.
17

Pregnancy discrimination claims are analyzed under the same framework as Title
VII sex discrimination claims. Armindo v. Padlocker, Inc., 209 F.3d 1319, 1320
(11th Cir. 2004). To prevail under Title VII, a plaintiff must show that her
pregnancy “was a motivating factor” for an employment decision. 42 U.S.C. §
2000e–2(m).
A plaintiff may offer direct or circumstantial evidence to support a sex
discrimination claim. Holland v. Gee, 677 F.3d 1047, 1055 (11th Cir. 2012). Ms.
Udeh offers circumstantial evidence of discrimination, so the Court evaluates her
claims through the burden-shifting framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). The first step of the McDonnell Douglas
framework requires the plaintiff to establish a prima facie case of discrimination by
showing that “‘(1) [s]he is a member of a protected class; (2) [s]he was qualified for
the position; (3) [s]he suffered an adverse employment action; and (4) [s]he was
replaced by a person outside [her] protected class.’” Winborn v. Supreme Beverage
Co., Inc., 572 Fed. Appx. 672, 674 (11th Cir. 2014) (quoting Maynard v. Bd. of
Regents, 342 F.3d 1281, 1289 (11th Cir. 2003)).

If the plaintiff makes this

showing, she raises a rebuttable presumption of pregnancy discrimination.
Holland, 677 F.3d at 1055.
Once the plaintiff meets this initial burden, the burden shifts to the employer

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to rebut it by articulating a legitimate, non-discriminatory reason for its actions.
Smith v. LockheedBMartin Corp., 644 F.3d 1321, 1325 (11th Cir. 2011). If the
employer meets this burden, then the burden shifts back to the plaintiff to “show that
the proffered reasons were pretextual.” Gray v. City of Jacksonville, Fla., 492 Fed.
Appx. 1, 4 (11th Cir. 2012) (quoting Combs v. Plantation Patterns, 106 F.3d 1519,
1538 (11th Cir. 1997)).
1.

Ms. Udeh can establish a prima facie case of pregnancy
discrimination through circumstantial evidence.

The parties do not dispute that Ms. Udeh was a member of a protected class,
that she was qualified for her job, and that she suffered an adverse employment
action. (Doc. 25, p. 11; Doc. 30, p. 1). There is a genuine issue of material fact as
to whether Ms. Udeh was replaced, and if so, who replaced her. Ms. Udeh claims
that on July 8 or 9, 2009, Ms. Sledge informed Ms. Udeh over the telephone that
Sledge had given Udeh’s job to Lisa Hubbard. (Doc. 28-1, pp. 195–96). Ms.
Sledge testified that Winn-Dixie “didn’t replace [Ms. Udeh’s] position,” and instead
“just moved the particular ISCs around that we had in the store.” (Doc. 28-4, p. 20).
Ms. Sledge also testified that after Ms. Udeh was terminated, Emily Carmichael
applied for and received Ms. Udeh’s vacant position. (Doc. 28-4, pp. 20–21).
Tara Warren testified that she noticed that Lisa Hubbard had the title of In-Store
Coordinator on her nametag. (Doc. 28-7, ¶ 15). Winn-Dixie store co-director
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Lorre Prisby maintains that the store never filled Ms. Udeh’s position. (Doc. 28-3,
pp. 11–12). Thus, whether Winn-Dixie replaced Ms. Udeh, and who replaced her,
is a disputed fact that is properly left to a jury to resolve. See Tolbert v. Briggs and
Stratton Corp., 510 F. Supp. 2d 549, 554 (M.D. Ala. 2007) (“If an employer could
insulate itself from a Title VII suit merely by reassigning a discharged employee’s
duties to a [non-pregnant] employee but never formally call it a replacement,
Congress’s intent in enacting Title VII would be thwarted.”).
At least one of Ms. Udeh’s possible replacements was outside Ms. Udeh’s
protected class. Ms. Sledge’s testimony indicates that Emily Carmichael filled Ms.
Udeh’s position after Winn-Dixie terminated Ms. Udeh. (Doc. 28-4, p. 20). Ms.
Carmichael was not pregnant when Winn-Dixie promoted her to the position of
In-Store Coordinator. (Doc. 53-2, p. 2). Therefore, Ms. Udeh can establish a
prima facie case of pregnancy discrimination.
2.

Winn-Dixie articulates a legitimate, nondiscriminatory reason for
Ms. Udeh’s termination.

Winn-Dixie’s proffered reason for Ms. Udeh’s termination is job
abandonment. Ms. Sledge claims that she put Ms. Udeh on the schedule, but Ms.
Udeh did not return to work. (Doc. 28-4, pp. 15, 19). Job abandonment is a
legitimate basis for termination. See Anderson v. JPMorgan Chase & Co., 418 Fed.
Appx. 881, 884 (11th Cir. 2011); Perez v. Brands Mart Serv. Corp., 2011 WL
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3236022, at *11 (S.D. Fla. July 28, 2011). Therefore, Winn-Dixie has met its
burden of stating a legitimate, nondiscriminatory reason for Ms. Udeh’s termination.
3.

Ms. Udeh presents sufficient evidence to allow a reasonable fact
finder to determine that Winn-Dixie’s reason for terminating Ms.
Udeh was a pretext for discrimination.

Ms. Udeh can show pretext “either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by showing
that the employer’s proffered explanation is unworthy of credence.”

King v.

Ferguson Enterprises, Inc., 568 Fed. Appx. 686, 688 (11th Cir. 2014) (internal
quotation omitted). To establish indirect evidence of pretext, Ms. Udeh must show
“that there are ‘such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate reasons for its action that a
reasonable factfinder could find them unworthy of credence.’” Gray v. City of
Jacksonville, Fla., 492 Fed. Appx. 1, 4 (11th Cir. 2012) (quoting Combs v.
Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir.1997)).
There are several circumstances surrounding Ms. Udeh’s termination that
could cause a reasonable fact finder to doubt Winn-Dixie’s claim that it terminated
Ms. Udeh for job abandonment. First, multiple Winn-Dixie managers testified that
when an employee is late or absent for a scheduled shift, someone from management
calls the employee. (Doc. 26-3, p. 56; Doc. 28-2, p. 10; Doc. 28-5, pp. 13–14).

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However, Ms. Sledge and Ms. Prisby testify that they cannot remember if they
called Ms. Udeh, and Ms. Udeh testifies that she did not receive a call. (Doc. 28-3,
p. 12; Doc. 28-4, p. 16). See Ritchie v. Indus. Steel, Inc., 426 Fed. Appx. 867, 873
(11th Cir. 2011) (“A plaintiff can also show pretext by demonstrating that the
employer did not follow its normal procedures in terminating [her] employment.”).
Additionally, Winn-Dixie has not identified which days Ms. Udeh failed to show up
for her scheduled shifts.
Winn-Dixie has also given conflicting accounts of the reason that it
terminated Ms. Udeh’s employment.

Ms. Sledge claims that Winn-Dixie

terminated Ms. Udeh for abandoning her job. (Doc. 26-3, p. 54; Doc. 28-4, p. 15).
Ms. Udeh testifies that Ms. Prisby told her, in a July 13, 2009 phone call, that
Winn-Dixie terminated her because her maternity leave paperwork was not on file
with the office and that the computer automatically kicks employees out of the
system after six weeks. (Doc. 28-1, p. 208). See Ritchie, 426 Fed. Appx. at 872
(“A plaintiff may establish pretext by demonstrating that the employer has offered
inconsistent reasons for the challenged employment action.”).
Winn-Dixie does not identify the manager who terminated Ms. Udeh, or the
manager who notified Ms. Udeh of her termination. Ms. Udeh testifies that Ms.
Prisby called her and terminated her employment. (Doc. 28-1, pp. 206–07). Ms.

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Prisby denies calling Ms. Udeh to tell her she was terminated. Both Ms. Prisby and
Ms. Sledge state that they do not know how Ms. Udeh learned of her termination.
(Doc. 26-3, pp. 54-55; Doc. 28-3, p. 11). Additionally, Ms. Sledge states that she
cannot remember who entered Ms. Udeh’s termination into the computer, although
Ms. Sledge testifies that it must have been either herself or Ms. Prisby. (Doc. 28-4,
p. 19). It strains credibility that the managers at Ms. Udeh’s store do not know who
terminated Ms. Udeh, or who notified Ms. Udeh of her termination. Credibility
determinations are for a jury, not a Court evaluating a summary judgment motion.
Winn-Dixie also gives conflicting accounts regarding who may have replaced
Ms. Udeh after Winn-Dixie terminated her employment. Ms. Udeh testifies that
Ms. Sledge informed her that Winn-Dixie had given Ms. Udeh’s job to Lisa
Hubbard. (Doc. 28-1, pp. 195–96). Ms. Sledge asserted that Winn-Dixie did not
replace Ms. Udeh’s position, but just moved around the ISCs who were in the store.
(Doc. 28-4, p. 20). Ms. Sledge also stated that Emily Carmichael applied for and
received Ms. Udeh’s vacant position. (Doc. 28-4, pp. 20–21). Ms. Warren saw
Ms. Hubbard wearing a nametag that identified Ms. Hubbard as an In-Store
Coordinator. (Doc. 28-7, ¶ 15). Ms. Prisby states that the store never filled Ms.
Udeh’s position. (Doc. 28-3, pp. 11–12). The lack of clarity regarding whether
Winn-Dixie replaced Ms. Udeh’s position could lead a trier of fact to doubt

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Winn-Dixie’s stated reason for terminating Ms. Udeh.
Finally, there is confusion regarding Ms. Udeh’s maternity leave papers.
Ms. Udeh states that she gave her leave paperwork to Ms. Warren. (Doc. 28-1, p.
173; Doc. 28-7, ¶ 7). Ms. Warren testifies that she gave the papers to Ms. Weston,
watched Ms. Weston place the papers in the fax machine, and heard the fax machine
faxing the papers. (Doc. 28-7, ¶¶ 8, 9). Ms. Warren also states that Ms. Weston
took the papers to Ms. Sledge’s office, and that Ms. Sledge was in the office at the
time. (Doc. 28-7, ¶ 10). However, Ms. Sledge states that she does not know if Ms.
Udeh was ever able to obtain her leave paperwork.

(Doc. 28-4, p. 13).

Additionally, Winn-Dixie=s Benefits Department does not have any record of Ms.
Udeh=s maternity leave paperwork. (Doc. 28-8, p. 13).
Because Ms. Udeh has presented sufficient evidence to permit a reasonable
trier of fact to conclude that Winn-Dixie’s stated reason for terminating Ms. Udeh is
pretext for unlawful discrimination, the Court denies summary judgment as to Ms.
Udeh’s pregnancy discrimination claim.
IV.

CONCLUSION
For the reasons stated above, the Court ORDERS as follows:
(1)

The Court DENIES Winn-Dixie’s motion for summary judgment as to

Ms. Udeh’s pregnancy discrimination claim and GRANTS Winn-Dixie’s motion

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for summary judgment as to Ms. Udeh’s negligence claim (Doc. 24);
(2)

The Court DENIES Winn-Dixie’s motion to strike as to Ms Udeh’s

affidavit, Ms. Warren’s affidavit, Ms. Weston’s letter, and Ms. Udeh’s exhibits
submitted in response to the Court’s order requesting additional supporting evidence
(Docs. 31, 54);
(3)

The Court directs the clerk to please TERM Docs. 24, 31, and 54.

DONE and ORDERED this March 31, 2015.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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