Ward v. Birmingham, City of

Filing 30

MEMORANDUM OPINION. Signed by Judge William M Acker, Jr on 2/8/13. (ASL)

FILED
2013 Feb-08 PM 03:57
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
FELECIA WARD,

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Plaintiff,
v.
CITY OF BIRMINGHAM,
Defendant.

CIVIL ACTION NO.
2:12-cv-00257-WMA

MEMORANDUM OPINION
Before the court is a motion for summary judgment filed by
defendant City of Birmingham (“City”) as to all claims brought by
plaintiff Felecia Ward (“Ward”).

(Doc. 16).

Ward asserts two

claims under the Family and Medical Leave Act of 1993, 29 U.S.C. §§
2601-54

(“FMLA”),

retaliation.
portions

of

one

Also
the

for

pending

interference
are

declarations

Ward’s

of

Tracy

and

two

the

motions

Morant

other
to

Adams

for

strike
(“Adams

Declaration”) and Peggy Polk (“Polk Declaration”), (docs. 23 and
24), submitted

by the City in support of its Rule 56 motion.

For

the reasons that follow, Ward’s motions to strike will be denied
and the City’s motion for summary judgment will be granted.
BACKGROUND1
Ward

began

working

for

the

City

in

1995.

Until

her

termination on October 21, 2010, Ward worked in the Office of

1

Because of the procedural posture, all facts and their
reasonable inferences are viewed in the light most favorable to
Ward.

Economic Development as an economic development analyst.

Ward’s

job was to increase the tax base for the City by providing economic
development assistance to existing businesses .
According to Ward, her typical work day involved returning
telephone calls, attending merchant meetings and other meetings
outside of the office, and visiting Birmingham businesses.

The

Office of Economic Development sent letters to businesses to
initiate contact.

Ward would meet with businesses that contacted

the office in response to those letters or on their own initiative.
Ward would also make contact with Birmingham businesses at merchant
association and similar meetings.
In February 2008, Tracey Morant Adams (“Adams”) became the
Director of the Office of Economic Development.

Adams reported

directly to the Mayor’s Chief of Operations, who under Mayor
William Bell was Jarvis Patton (“Patton”).

After Adams settled

into her position in early 2008, she became concerned about Ward’s
job performance and whereabouts. She noticed that Ward would leave
the office everyday around 11:00 or 11:30 AM and very rarely
return. When Adams asked Ward what she was doing during that time,
Ward said that she was meeting with businesses or at merchant
association meetings.
mileage

related

to

Although Ward could be reimbursed for

business

visits

and

meetings,

she

rarely

submitted reimbursement requests.

Ward never referred to any of

the businesses

she

she

visited

when

2

reported

to

Lisa

Cooper

(“Cooper”), whose job it was to provide companies with financial
assistance.
In June 2009, while Ward was on a medical leave unrelated to
case,2

this

Adams

met

with

Peggy

Polk

(“Polk’),

the

City’s

Personnel Director, and developed an improvement plan for Ward.
The improvement plan gave Ward targeted responsibilities that could
be measured.

Adams met with Ward about the plan when she returned

to work.
Continuing Issues with Ward’s Job Performance
In 2009 Ward, in her capacity as economic development analyst,
started to work with the Birmingham Construction Industry Authority
(“BCIA”).

The BCIA provides assistance to minority construction

contractors.

Adams met with Michael Bell, the Executive Director

of the BCIA, and with Ward and arranged for Ward to work at the
BCIA two days a week beginning in September 2009.

On October 1,

2009, Adams received an email from Michael Bell stating that Ward
had not shown up for her assignment at the BCIA.
the matter with Ward.

Adams discussed

The arrangement with the BCIA continued.

Adams let it be known that she expected that if Ward did not go to
the BCIA on a given day, she would be at the office.

In addition

to her main assignment with the BCIA, Adams expected Ward to
continue to provide technical assistance to Birmingham businesses,

2

Ward took a six week leave of absence in 2009 after she
underwent surgery. Ward makes no complaints regarding that leave
of absence.
3

visit businesses in the City, and attend merchant association
meetings.
In January 2010, After Adams did not see any improvement in
Ward’s productivity, she started meeting with Ward monthly.

Ward

was required to provide Adams with a monthly report of her work
activities, including a record of every business she visited and
merchant association meetings she attended.
Ward’s January 2010 report states that “on or about” that
month, Ward visited thirteen businesses and attended three merchant
association meetings.

It also reflects that she attended the

Railroad Park bid opening, an Economic Justice Committee meeting,
a luncheon of the Greater Birmingham Ministries for Professional
and Economic Leaders, and that she watched a webinar from her
office.
Ward’s monthly reports for February through August 2010
contain much less.

These reports indicate that Ward only met with

four business during seven months.

The February 2010 report lists

identical entries for merchant association meetings and businesses
visited as the January 2010 report.

The only new information on

the report is information about the Small Business Administration
that

Ward

copied

from

the

internet.

Ward

confirmed

at

her

deposition that the February 2010 report does not include any new
meetings, events, or businesses visited.
The April 2010 monthly report reflects that Ward only met with

4

one business, the Midfield School of Cosmetology, which is not a
business within the City.

The report also reflects that Ward met

with an individual named Barry Stein about another business not
within the City.

The only other work listed on the report was that

Ward had a second meeting with three businessmen that she had met
with in January 2010.

The May 2010 report indicates that Ward did

not visit any businesses that month.

Ward’s reports for July and

August 2010 reflect that she met with two businesses.
After noticing that Ward’s monthly reports did not change
substantively

from

month

to

month,

Adams

called

some

of

the

merchant associations listed on the reports and learned that Ward
had not actually attended the meetings she listed on the reports.
Adams also noticed that some of the entries on the reports were
items worked on by other employees.
Concerned about Ward’s lack of productivity and doubts about
her whereabouts, Adams, on March 5, 2010, implemented an office
protocol for all employees when going to be out of the office.

The

“Outlook Protocol” required all employees to list when they were
going to be out of the office, the meeting location and purpose,
and the business contact and phone number on their computer’s
Outlook calendar.
rights”

that

Adams also required that she have “viewing

allowed

her

to

see

all

the

employees’

Outlook

calendars from her computer.
One day in April 2010, Patton asked Adams where Ward was that

5

day because she was not in the office.

Adams checked Ward’s

Outlook calendar, which indicated that she was at a BCIA meeting.
Patton had just been at the BCIA meeting and Ward was not there.
While Patton was at the BCIA, Michael Bell told him that he had not
seen Ward since October 2009.

Ward admits that she did not go to

the BCIA in December 2009 or January 2010, but claims that Adams
instructed her not to go.

Adams contends that she was under the

impression that Ward was supposed to be going to the BCIA and that
she was, in fact, going during this time.

Ward continued to put

BCIA meetings on her Outlook calender and to provide updates on the
BCIA during staff meetings during this time.
On April 28, 2010, Adams notified Ward that she was being
charged with failing to fulfill her BCIA assignment and failing to
follow the Outlook Protocol.

A Jefferson County Personnel Board

(“JCPB”) determination hearing was held on April 29, 2010, and Ward
received a three-day suspension. Ward does not here complain about
this suspension.
Anonymous and Fraudulent Letters
In April 2010, the Birmingham News notified Adams that it had
received a letter, purportedly on Office of Economic Development
letterhead, which alleged that Adams was being harassed by Mayor
Bell to give the BCIA more money because the Executive Director of
the BCIA, Michael Bell, was the mayor’s brother.

The letter was

dated April 28, 2010, the same day that Ward was notified about

6

charges against her relating to her assignment with the BCIA.
Adams told the Birmingham News that she did not write the letter
and made Mayor Bell aware of the letter.
Adams

also

received

a

letter

Around the same time,

purportedly

from

Mayor

Bell

authorizing payment to a contractor.

The letter alarmed Adams

because

to

it

directed

information to her.

the

contractor

forward

his

banking

The letter was not written by Mayor Bell.

Adams gave both letters to the Birmingham Police Department’s
Internal Affairs division for investigation.

Internal Affairs

interviewed the employees who worked in the Office of Economic
Affairs, including Adams and Ward.

There was no determination as

to who wrote either of the letters.

Ward testified at her

deposition that she believed that Patton thought she wrote the
letter about Adams and maybe the other letter, and that after
arriving at this conclusion, Patton decided to fire her.

If, as

Ward testified, the decision to fire her was motivated by a belief
that she wrote a letter or letters, such a motivation does not
remotely implicate the FMLA, which is the sole statute invoked by
Ward.
Subject FMLA Leave
In May 2010 while serving her suspension, Ward began to feel
ill and went to see Dr. William Hall (“Dr. Hall”).

Dr. Hall

diagnosed Ward with high blood pressure and restricted her to
working half-days until her next visit with him.

7

The court takes

judicial notice of the fact that anger can increase blood pressure.
Dr. Hall later continued the half-day work restriction until July
2010.

Adams, as well as the Safety and Health Division of the

City’s Personnel Department, approved a half-day schedule for Ward
from May 12, 2010
restriction.

until July 15, 2010, when Dr. Hall released the

Ward never requested any other FMLA leave from the

City.
Ward’s Return to Work After Suspension
When Ward returned to work after her suspension in May 2010,
she met with Adams and Patton. Ward secretly recorded the meeting,
during which Adams reviewed a “Tasks Assigned” list that clarified
and/or modified Ward’s performance improvement plan that had been
in place since mid-2009.

For example, one task was for Ward to

visit five businesses per week.

When Ward explained that it would

be difficult for her to visit five businesses a week because she
was only to work half-days, Adams changed the requirement to two
business visits per week.

Adams conceded that Ward could not

achieve a full day of work while on her half-day leave.
Ward’s Grievances
Pursuant to the applicable procedure, Ward filed a formal
grievance against Adams with the JCPB on May 24, 2010.

Ward

complained that since February 2008, Adams had manifested a pattern
of negative behavior toward her.

That same day Ward sent Adams an

email alleging discriminatory treatment dating back to February

8

2008.

Ward alleged that Adams had acquired preconceived ideas

about her from the former Chief of Operations.

Notably, Ward

testified at her deposition that prior to her FMLA leave, she felt
that Adams had singled her out, treated her differently from other
employees, and was hostile towards her.
On June 28, 2010, Ward amended her grievance to include the
allegation that, while taking intermittent FMLA leave, she was
“harassed” when she was questioned about work absences by the
Internal

Affairs

investigation.

detectives

during

the

anonymous

letters

Ward stated that she believed that the questioning

was in retaliation to her filing the May 2010 grievance against
Adams.

Specifically, Ward concluded her amended grievance by

explaining:
I feel that these actions are a direct result of my
Grievance filed on May 24, 2010 and slanderous in nature.
I conceive that this retaliatory efforts by you, Mrs.
Tracy Morant Adams because of the Grievance Proceedings
that began May 24, 2010.
The only mention of Ward’s FMLA leave in these grievances
appears in the May 24, 2010 grievance and letter to Adams in which
Ward complains about having to meet with the Personnel Department
of Health and Safety to provide documentation of the medical basis
for her leave.
court

find

retaliation.

Only after searching the record on its own did this

evidence
On

of

July

Ward’s
10,

targeted

2010,

Ward

references
submitted

a

to

FMLA

document

containing her requests to the hearing officer as “step 3" of the
9

grievance

process.

In

this

document,

Ward

made

explicit

allegations that since she had been working a reduced schedule, she
had been “subjected to continuous harassment and retaliation.”
There is no earlier indication in the record of any contention by
Ward of FMLA retaliation.
The

City’s

Personnel

Department

was

notified

of

Ward’s

grievance, and on July 10, 2010, Ward presented her grievance with
the JCPB.

She testified that over a two year period Adams had made

her environment increasingly hostile and that the hostility had
escalated on March 5, 2010 with the implementation of the Outlook
Protocol.
Additional Meetings
Adams and Polk met with Ward again on June 7, 2010.
again secretly recorded the meeting.

Ward

Adams reminded Ward that she

was required to visit two businesses per week and to complete all
paperwork associated with the visits.

Ward was provided with a

list of businesses that she could visit and a packet with a sample
introductory letter, followup letter, and a survey to complete
after she visited each business.
Adams and Polk met with Ward again on June 21, 2010.

At this

meeting Adams asked Ward to provide a one page summary of grant
ideas. In response, Ward sent an email with information copied and
pasted from the internet.

When Adams asked Ward to redo the

summary and to include her own thoughts, Ward converted the email

10

summary into a memorandum and gave it to Adams without adding any
material.
Adams contends that she saw no improvement in Ward’s work
performance between the May 12, 2010 meeting and the June 21, 2010
meeting.

There

is

no

evidence

that

Ward

visited Birmingham

businesses as she was instructed to do, and in her deposition Ward
admitted that she had not done so.
A fourth meeting was held on August 5, 2010.

Ward brought

Ronnie Bates, a representative from the Birmingham Association of
City Employees with her to the meeting.
again.

She recorded the meeting

Ward was still not meeting with two businesses a week.

Although she was not meeting with businesses, Ward continued to be
out of the office every afternoon, even after her FMLA reduced
schedule ended in July 2010.
Hostile Work Environment Complaint About Ward
In September 2010, another employee, Cooper, complained that
Ward was

creating

a

hostile

work environment

in

the

office.

Specifically, Cooper alleged that Ward was not contributing to the
team and was having a negative impact on others in the office.

On

September 29, 2010, Adams sent Patton a letter requesting his
assistance with the problem.

In the letter

Adams recounted the

trouble that she had experienced with Ward’s productivity, lack of
regard for authority, and insubordination.

11

That day Ward received

a letter3 informing her that she would be placed on administrative
leave with pay until an investigation into the complaint was
completed.

Pursuant to the City’s established practice, Ward was

escorted out of the office by Patton and three Birmingham police
officers.

She was also required to relinquish her work keys and

badge.
On October 1, 2010, Polk investigated the allegation against
Ward by interviewing Ward’s co-workers.

Polk interviewed all of

Ward’s co-workers except one who was out of town.

The following

are

during

responses

that

Ward’s

co-workers

provided

those

interviews
- [I]t is extremely stressful because I work hard and
everybody else works hard except one person.
It has been
going on for a long time. It’s kind of flaunted that this
person acts like “I can do whatever I want to.” If you are
giving 100%, it’s depressing to watch someone who isn’t and
nothing is being done.
- I have a past history with [Ward] so I only interact with
her when it is work related.
I have a good working
relationship with everybody but [Ward].
- [Ward] stares at [Adams] like she can just spit on her. She
also treats [Cooper] like that. I am not comfortable around
her because she behaves like a bully. There are two things
that annoys [sic] her and they are somebody in authority and
somebody holding her accountable.
- [Ward] has no respect for [Adams]. When the election of a
new administration came, she would walk around [Adams’] door

3

The letter informing Ward of the complaint against her was
incorrectly dated September 10, 2010. It is undisputed that only
after Cooper complained about Ward that Ward was given the letter
and placed on administrative leave while the complaint was being
investigated.
12

saying “tic-tock, tic-tock” as if to indicate that [Adams]
time was running out. We all would love to get paid for doing
nothing, but we have a better work ethic.
- I have an excellent relationship with my colleagues and I
think they feel the same about me with the exception of
[Ward].
- I feel that [Ward] makes the atmosphere difficult.
- I have a good working relationship with most of the people,
but I have no working relationship with [Ward]. I have known
. . . and this goes back ten years . . . if you give her an
assignment, it goes in a dead hole. I don’t know why nothing
has ever been done about her behavior. You can sit in a staff
meeting and when everybody else describes what they have been
doing . . . she doesn’t do anything or have anything
worthwhile to contribute.
- The rest of us work like a team. In Business Retention 9
out of 10 people are looking for money . . . so you have to
have a network. If they are looking for industrial sites, I
refer them to Griffin. If they are looking for money, I refer
them to [Cooper]. [Ward] doesn’t want to do it and she has no
intention of doing it.
During the interviews, Polk did not mention Ward’s FMLA leave that
had ended two and a half months earlier.
Ward or Adams.

Polk did not interview

At the end of the investigation, Polk concluded

that Ward had created a hostile, uncomfortable, and difficult work
environment.
Ward’s Termination
Adams recommended to Patton that he terminate Ward based on
Ward’s failure to improve her productivity, complete disregard for
authority, low level of performance, lack of contribution, not
completing tasks assigned to her, and Polk’s conclusion that her
behavior created a hostile work environment in the office.

13

Ward was charged as follows:
You have met several times with your direct supervisor
regarding your assignments; however, you have failed to
show
any
production
on
the
assignments
given.
Allegations that your behavior has created a hostile work
environment have been sustained after an investigation
conducted by the City of Birmingham’s Personnel Officer.
Attempts to deliver notice of the charge to Ward by certified mail
were unsuccessful. Therefore, on October 8, 2010, police delivered
the notice to Ward’s home.

In plain clothes and an unmarked police

car, City of Birmingham Police Officer Herman Harris (“Officer
Harris”) delivered the notice.

Because Ward lives outside of the

City, Office Harris asked a police officer from Ward’s city to meet
him

at

Ward’s

house.

Ward

alleges

that

a

Jefferson

County

Sheriff’s Deputy was also present when the notice was delivered.
The officers also delivered a notice of an amended determination
hearing on October 13, 2010.
The hearing was held on October 18, 2010, where Ward was
represented by an attorney.

The decision was that Ward would be

terminated, effective October 21, 2010. Ward appealed the decision
to the JCPB.

After four days of testimony before the JCPB,

including that of Ward, the Hearing Officer, on December 20, 2011,
recommended that the termination be upheld.

After subsequent

litigation4 before the JCPB and the Circuit Court of Jefferson

4

The somewhat complicated procedural history of this case is
as follows. On January 20, 2012, the JCPB ordered that Ward be
reinstated, but that she was not entitled to back pay. On April
17, 2012 the Circuit Court of Jefferson County, Alabama reversed
14

County, the Hearing Officer, Personnel Board, and Circuit Court all
upheld Ward’s termination.

Ward’s application to the Alabama

Department of Industrial Relations for unemployment benefits was
denied.
DISCUSSION
A.

Motions to Strike

In Ward’s her motions to strike portions of the Adams and Polk
declarations she argues that they are (1) based on speculation,
conjecture, and legal conclusions, rather than the declarant’s
personal knowledge, and (2) constitute a “sham,” as prohibited by
the sham affidavit doctrine adopted by the Eleventh Circuit in Van
T. Junkins & Assoc., Inc. v. U.S. Indus., 736 F.2d 656, 657 (11th
Cir. 1984).
The requirements for affidavits and declarations offered in
support of or in opposition to a motion for summary judgment are
outlined in Rule 56(c)(4), Fed. R. Civ. P. That rule requires that
a declaration must be based “on personal knowledge, set out facts
that would be admissible in evidence, and show that the . . .
declarant is competent to testify on matters stated.” Fed. R. Civ.
P. 56(c)(4).

Additionally, statements in a declaration may be

the JCPB decision. On June 12, 2012, the JCPB determined that
the Hearing Officer’s December 20, 2011 recommendation was due to
be affirmed and upheld Ward’s termination. Finally, on September
17, 2012, the Circuit Court of Jefferson County found that there
was no substantial evidence to support to JCPB’s prior decision
to reinstate Ward and upheld the Hearing Officer’s recommendation
to sustain Ward’s termination.
15

stricken as a matter of law when it is obvious that they constitute
a “sham.”
1986).

Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir.

This occurs when there is a “flat contradiction” between

the declaration and the declarant’s prior, sworn testimony.

Id.

On the other hand, “[i]ssues of credibility of witnesses and weight
of evidence are questions of fact which require resolution by the
trier of fact.”

Id. at 954; see also Choudhry v. Jenkins, 559 F.2d

1085, 1090 (7th Cir. 1977) (“[E]very discrepancy in an affidavit
does not justify a district court’s refusal to give credence to
such evidence.”).
disregarded

only

A declaration, or portions of it, will be
“when

a

party

has

given

clear

answers

to

unambiguous questions . . . [and that person attempts] thereafter
[to] create such an issue with an affidavit that merely contracts,
without explanation, previously given clear testimony.”

Tippens,

805 F.2d at 954 (quoting Van T. Junkins & Assocs. v. U.S. Indus.,
736 F.2d 656, 657 (11th Cir. 1984)).
1.

Adams Declaration

Ward contends that portions of the Adams declaration are (1)
a “sham” because they contradict Adams’ prior, sworn testimony; (2)
irrelevant; and (3) conclusory statements that go to the ultimate
issue.

All three of Ward’s arguments lack merit.

Ward

asserts

that

¶7,

¶¶15-16,

and

¶42

of

the

Adams

declaration are due to be stricken because they contradict her JCPB
hearing testimony and her September 29, 2010 letter to Patton, in
16

which Ward contends that Adams stated that she only had problems
with Ward’s performance over the “course of several months.”

The

relevant portions of the Adams declaration relate to issues Adams
experienced with Ward’s work performance outside of this time
frame. Notably, Adams’ letter to Patton is not “prior, sworn
testimony” and therefore is not subject to the sham affidavit
doctrine.

Adams’

declaration.

hearing

testimony

does

not

contradict

her

Nowhere in her testimony does Adams state that she

only had problems with Ward’s job performances over the “course of
several

months.”

Instead,

Adams’

testimony

is

replete

with

instances in which she testifies regarding continuing issues that
she had with Ward’s job performance. There is no “obvious sham” or
“flat contradiction” to warrant application of the sham affidavit
doctrine.
Ward next contends that ¶44 of the Adams declaration should be
stricken because it contradicts Adams’ JCPB hearing testimony.5
Paragraph 44 of the declaration states that “Lisa Cooper complained
that plaintiff was creating a hostile work environment in the
office.”

Ward asserts that this flatly contradicts Adams’ hearing

testimony that Cooper stated that “she was concerned about the
environment in the Office of Economic Development being conducive
to the work relationship.”

The argument that these statements are

5

Ward also argues that ¶44 contradicts the September 29,
2010 letter that is not prior, sworn testimony subject to the
sham affidavit doctrine.
17

contradictory is facially specious.

The statement that someone

created a hostile work environment is entirely consistent with
expressing concern about relationships at work.

While these two

statements are not identical, they are certainly not contradictory.
Furthermore, Ward’s argument that Adams’ use of the words “hostile
work environment” is an attempt to provide legal meaning to her
statement is incorrect.

There has been no Title VII violation

alleged in this action.

The term “hostile work environment” as

used in this action is a layman’s term.
Ward’s contention that ¶17 contradicts Adams’ JCPB hearing
testimony is equally baseless.

In ¶17 Adams states that “[i]n

January 2010, I began meeting monthly with Mrs. Ward . . . .”

Ward

argues that this is inconsistent with Adams’ testimony that she
only

had

four

meetings

with

Ward

in

2010.

Ward’s

argument

inaccurately describes Adams’ testimony. Attempting to demonstrate
a contradiction, Ward cites testimony in which Adams confirms that
there were four specific meetings with Ward in 2010.

Nowhere did

Adams testify that she only had four meetings with Ward.

The four

meetings Ward cites occurred on May 12, June 7, July 21, and August
5.

It is clear from Adams’ testimony that these meetings were in

addition to the meetings or work sessions she had with Ward from
January to April 2010.

Ward herself testified at her deposition

that, starting in January 2010, she met with Adams at least
monthly.

Ward cannot create a contradiction where one does not

18

exist.
Ward’s next argues that several paragraphs of the Adams
declaration are irrelevant and are therefore due to be stricken.
Ward contends that ¶11 and ¶¶ 26-31 are irrelevant because they
relate to anonymous and fraudulent letters sent to Adams and The
Birmingham News.
offered

these

This argument is strange because Ward herself

letters

employment action.

as

the

reason

for

the

City’s

adverse

Specifically, in the complaint Ward alleges

that the

City

harassed

her

by

interrogating

her

about

these

letters.

She also testified that she believes that she was fired

because Patton thought she wrote at least one of the letters.
Based on Ward’s own contentions, the letters are relevant.
Ward’s arguments based on the relevance of other paragraphs of
the Adams declaration are equally unconvincing.

Ward argues that

¶¶12-14 and ¶¶20-25 should be stricken as irrelevant because they
relate to her work with the BCIA, and her discipline associated
therewith, as well as with issues regarding her noncompliance with
the Outlook Protocol’s calendaring aspect. It is difficult for the
court to understand how Ward can contend that these items are not
relevant.

Ward’s alleged failure to perform her work and any

subsequent discipline prior to her termination would be probative
in a trial of this case.

According to the City, from 2008 until

Ward’s termination, Adams repeatedly found that Ward did not
perform her duties. The issues relating to the BCIA assignment and

19

failing to follow the calendar protocol are examples of such
shortcomings.
Ward moves to strike ¶50 of the Adams declaration as a
conclusory statement that goes to the ultimate issue of the case.
This paragraph of the declaration states that “I never did anything
to interfere with Felecia’s [sic] Ward requests for FMLA leave but
in fact tried to assist her in that leave.
against Ms. Ward for taking any leave.

I also never retaliated

I never harassed Ms. Ward

or created any hostile environment for her. Every action I took in
regards to Ms. Ward was taken for legitimate reasons.”

Ward‘s

complaint alleges that Adams interfered with her FMLA rights and
retaliated against her.
these

allegations.

Adams is certainly entitled to respond to
Adams’

words

are

not

taken

as

legal

conclusions, but as Adams’ account of her actions and motivations.
For the foregoing reasons, Ward’s motion to strike portions of
the Adams declaration will be denied.
2.

Polk Declaration

Ward advances similar arguments in support of her motion to
strike portions of the Polk declaration.

Specifically, Ward

contends that certain paragraphs are (1) a “sham” because they
contradict

prior,

sworn

testimony;

(2)

“self-serving”

and

irrelevant; and (3) conclusory statements that go to the ultimate
issue.
Ward argues that ¶¶4-5 of the Polk declaration should be

20

stricken because they contradict Polk’s JCPB hearing testimony.
The relevant portion of the declaration states that Polk believed
that

“Ward’s

environment.”

behavior

did

in

fact

create

a

hostile

work

At the JCPB hearing, Polk testified that Ward

created an “uncomfortable work environment.”

Again, Ward is

parsing words in an attempt to create a contradiction where one
does

not

exist.

The

contention

that

these

statements

are

contradictory dishonors the English language.
Next, Ward contends that ¶6 should be stricken because it
contradicts

“Defendant’s

policies and procedures.

own

admission”

regarding

the

This is not the type of contradiction

that the sham affidavit doctrine is intended to prevent.
does

not

declarant’s

provide

that

testimony

City’s

a

declaration

allegedly

be

contradicts

stricken

The law
when

another

the

witness’s

testimony. See e.g., Duvall Chems. v. Osterman & Co., No. 4:04-cv0059, 2006 WL 6848733, at *2 (N.D. Ga. Mar. 14, 2006).

Because

Ward has not claimed that Polk testified in contradiction to her
own

declaration,

the

sham

affidavit

doctrine

is

wholly

inapplicable.
Ward seeks to have the court strike ¶8 of the Polk declaration
as self-serving and irrelevant. First, the fact that the statement
is helpful to the City is not a ground to strike.

See e.g.,

Stallworth v. Okaloosa County Sch. Dist., No. 3:09-cv-404, 2011 WL
4552187, at *5 (N.D. Fla. Sept. 30, 2011) (“There is nothing

21

inherently wrong with considering self-serving testimony at the
summary judgment stage.”) (citing Price v. Time, Inc., 416 F.3d
1327, 1345 (11th Cir. 2005), modified on denial of reh’g on other
grounds, 425 F.3d 1292).

Furthermore, Polk’s statements regarding

her FMLA training are relevant to the claims at issue.

Ward’s FMLA

claims include specific allegations against Polk and how certain of
Polk’s actions violated FMLA.

As such, the fact that Polk had

training on FMLA compliance is relevant.
Ward moves to strike ¶9 of the Polk declaration on the ground
that it is a conclusory statement that goes to the ultimate issue.
This arguments fails for the same reasons that it failed when
asserted in relation to the Adams declaration.
For the foregoing reasons, Ward’s motion to strike portions of
the Polk declaration will be denied.
B.

Motion for Summary Judgment

The FMLA recognizes two types of claims: interference claims
and retaliation claims. A plaintiff makes a claim for interference
when she asserts that her employer denied or otherwise interfered
with her substantive rights under FMLA.

Hurlbert v. St. Mary’s

Health Care Sys., Inc., 439 F.3d 1286, 1293 (11th Cir. 2006).

A

claim for retaliation under FMLA is appropriate when an employer
discriminated

against

an

employee

activity protected under FMLA.

because

See id.

she

engaged

in

an

The City seeks summary

judgment both as to Ward’s claim for FMLA interference and her
22

claim for retaliation.
1.

FMLA Interference

The Eleventh Circuit is clear that to establish an FMLA
interference claim, a plaintiff must demonstrate that (1) she was
entitled to a benefit under FMLA and (2) the benefit was denied.
Hurlbert, 439 F.3d at 1293; Strickland v. Water Works & Sewer Bd.
of City of Birmingham, 239 F.3d 1199, 1206-07 (11th Cir. 2001)
(citing O’Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349,
1353-54 (11th Cir. 2000)).

One such benefit is that an employee

may take leave due to, among other things, a serious medical
condition.

See 29 U.S.C. § 2612(a)(1)(D).

dispute as

to

whether

Ward

suffered

While there may be some

from

a

“serious

medical

condition,” there is no dispute that the City provided her with
every arguably available benefit when it allowed her to work a
reduced schedule from May to July 2010.

Ward testified at her

deposition that she received all the leave she requested.
Instead, in support of her interference claim, Ward argues
that she is entitled to FMLA relief because she was harassed after
her intermittent leave and was ultimately terminated.
no

other

allegations

Allegations
addressed

of
under

as

harassment
a

claim

to

benefits

and
for

which

she

Ward makes
was

denied.

termination

are

appropriately

retaliation,

not

interference.

Hulbert, 439 F.3d at1293; cf. Simpson v. Office of Chief Judge of
Circuit Court of Will County, Ill., 520 F. Supp. 2d 998, 1009 n.10
23

(N.D.

Ill.

2007)

(“[H]arassment

alone

does

not

establish

an

interference claim . . . because to establish an interference claim
[plaintiff] must show the defendants denied her a right under
FMLA.”).
Ward has offered no evidence that she was denied a benefit to
which

she

was

entitled.

As

such,

she

has

not

suffered

an

cognizable injury to sustain an FMLA interference claim. Graham v.
State Farm Mut. Ins. Co., 193 F.3d 1274, 1275 (11th Cir. 1999) (per
curiam) (“[A] plaintiff suffers no FMLA [interference] injury when
she receives all the leave she requests.”).

Accordingly, Ward’s

claim for FMLA interference fails as a matter of law.
2.

FMLA Retaliation

In FMLA retaliation cases, the Eleventh Circuit applies the
same burden-shifting framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1974), that it uses
to evaluate claims under Title VII of the Civil Rights Act of 1964.
Schaaf v .Smithkline Beecham Corp., 602 F.3d 1236, 1243 (11th Cir.
2010).

Under this framework, Ward must first establish a prima

facie case by demonstrating that (1) she engaged in statutorily
protected activity, (2) she suffered an adverse employment action,
and (3) a causal connection between the statutorily protected
activity and the adverse employment action. Id.; see also Krutzig,
602 F.3d at 1234.

If Ward establishes such a prima facie case, the

burden then shifts to the City to articulate a legitimate reason
24

for the adverse action. Schaaf, 602 F.3d at 1243 (citing McDonnell
Douglas Corp., 411 U.S. 792, 93 S. Ct. 1817). If the City provides
such a reason, Ward must then show that the City’s proffered reason
for the adverse action is pretextual.

Id.

(citing McDonnell

Douglas Corp., 411 U.S. 792, 93 S. Ct. 1817).
Ward cannot establish a prima facie case6 of retaliation
because there is no evidence that the City’s decision to terminate
her was causally related to her FMLA leave.
causal

connection

element,

a

plaintiff

must

To establish the
prove

that

the

protected activity, here Ward’s FMLA leave, and the adverse action,
here Ward’s termination,

were “not wholly unrelated.”

Krutzig,

602 F.3d at 1234 (quoting Brungart v. Bellsouth Telecomm., Inc.,
231 F.3d 791, 799 (11th Cir. 2000)).

Causation may be inferred by

close temporal proximity between the protected conduct and the
adverse employment action.

Thomas v. Cooper Lighting, Inc., 506

F.3d 1361, 1364 (11th Cir. 2007).

Close temporal proximity,

however, is not the only method by which a plaintiff can prove a
causal connection.

Even when a significant amount of time has

elapsed, as in this case, a causal connection may exist when the
protected activity and the adverse employment action are linked by

6

The parties dispute whether Ward was entitled to FMLA.
Ward has presented sufficient evidence that she suffered from
high blood pressure and was under a doctor’s continued care for
her condition to qualify as a “chronic condition” under 29 C.F.R.
§ 825.115(c).
25

a chain of intervening retaliatory acts.

See Wideman v. Wal-Mart

Stores, Inc., 141 F.3d 1453, 1457 (11th Cir. 1998).
In this case a causal connection is not established solely on
close temporal proximity.

Temporal proximity, without more, must

be “very close,” and in this case is not close.

Cooper Lighting,

Inc., 506 F.3d at 1364 (citing Clark County Sch. Dist. v. Breeden,
532 U.S. 268, 121 S. Ct. 1508, 1511 (2001)).

The Eleventh Circuit

has held that as small as a two month gap between a statutorily
protected act and the adverse employment action is too long to
create a jury question as to the essential causal connection
element.

Williams v. Waste Mgmt., Inc., No. 10-13121, 2011 WL

207932, at *3 (11th Cir. Jan. 25, 2011) (affirming summary judgment
based on lack of causal connection when there was a two month gap
between

the

protected

expression

and

the

adverse

employment

action); see also Cooper Lighting, Inc., 506 F.3d at 1364 (three
month gap); Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006)
(three and a half month gap); Higdon v. Jackson, 393 F.3d 1211,
1221 (11th Cir. 2004) (three month gap).
In the present case, approximately two and a half months
elapsed between the end of Ward’s FMLA leave in mid-July 2010 and
Ward’s being informed of the charges against her on September 29,
2010, that, along with other issues, led to her termination.
and a half months is too long.

Two

See e.g., Williams, 2011 WL 207932,

at *3.
26

Ward argues that a causal connection nevertheless exists based
on other evidence of retaliatory intent. Specifically, Ward points
out that on June 21, 2010, during the time she was on the approved
half-day schedule, Adams told an Internal Affairs investigator that
“it wasn’t right for Ward to get a paycheck for every day but not
to stay all day.”

Ward argues that this comment is evidence of

Adams’ retaliatory intent and creates a reasonable inference that
she was discharged in retaliation for taking FMLA leave.
The

record

reflects

that

Adams’

actual

comment

to

the

investigator was that “it’s just not right to come to work get a
paycheck every day and not work when you’re facing [what] we’re
facing things that we are facing right now, it simply is not fair.”
On its face, this comment is not about Ward’s medical leave.
Instead, it is a comment about coming to work and doing one’s job.
In context, Adams was talking about Ward’s suspension for not
showing up for her assignments, an event which occurred prior to
Ward’s FMLA leave.

When Adams did discuss Ward’s leaving work

around noon, she discussed it in terms of how Ward had been leaving
the office unaccounted for since before Adams joined the office.
Ward also argues that Adams’ September 29, 2010 letter to
Patton, which stated that Ward had productivity issues over the
course of several months, “links” Ward’s productivity issues to the
time she was on leave, evidencing Adams’ animosity toward Ward for
taking medical leave.

This argument misstates the contents of the

27

letter.

The letter does not state that Adams had problems with

Ward for only several months.
office for a few months.

Patton had only been working in the

The letter states “[a]s you know over the

course of several months” because that is the amount of time that
Patton had been working with Adams and Ward.

It is undisputed that

Adams had issues with Ward’s performances since 2008, not just the
several months before Ward’s termination.

Neither of Ward’s two

arguments for a link between the FMLA leave and her termination is
supported by the evidence.
Even if Ward could prove causation and thus a prima facie case
of retaliation, she has not provided any real evidence that the
City’s legitimate, nondiscriminatory reasons for discharging her
were a pretext for retaliation.

The City says that it terminated

Ward because she failed to improve her productivity, had a complete
disregard for authority, exhibited a low level of performance and
contribution, failed to complete assigned tasks, and created a
hostile or very difficult work environment in the office. Ward has
not offered evidence upon which a reasonable jury could find that
any of these proffered legitimate, nondiscriminatory reasons wre
inventions to cover up a retaliatory motive.
Ward admits that one of her job responsibilities was to visit
businesses in the City.

It is undisputed that between February

2010 and August 2010, Ward met with only four businesses (not all
of which were even within the City).

28

During this time, Ward was

supposed to be visiting two businesses per week.
initially

suggested

that

Ward

be

tasked

with

Adams had

visiting

five

businesses per week, but reduced the requirement to two business to
accommodate Ward’s reduced schedule from May to July 2010.

It is

also undisputed that Ward was not attending merchant association
meetings, was not working with the BCIA, and was not following the
Outlook Protocol.

Ward has offered no evidence to dispute the

obvious fact that Adams believed that Ward was not performing her
job at an acceptable level.

Ward also does not dispute that her

co-workers complained about her and felt that she created a hostile
or unpleasant work environment.

Polk’s interviews with Ward’s co-

workers, excerpts of with are reproduced above, are undisputed.
In a move that somewhat perplexes the court, Ward offers a
couple of reasons as to why Adams and Patton treated her as they
allegedly did - neither of them related to her FMLA leave.

Ward

testified at her deposition, in a conclusory manner, that Adams had
preconceived ideas about her acquired from a previous staff member.
This is a matter of conjecture and not a fact.

She contends that

beginning in 2008, Adams was hostile to her, singled her out, and
treated her less favorably than others in the office.

Ward also

claims that Patton decided to terminate her when he concluded that
she wrote the one of the anonymous letters. Ward’s contention that
she was discharged in retaliation for taking FMLA leave is not only
unsupported by the evidence, but is contradicted by Ward’s own

29

deposition testimony.
Ward has not shown that the City’s proffered reasons for her
termination were a pretext for retaliation based on her FMLA leave.
There is nothing for a jury to decide in this case.

The City is

entitled to summary judgment on Ward’s retaliation claim.
CONCLUSION
For the foregoing reasons, the two motions to strike filed by
Ward are hereby DENIED, and the motion for summary judgment filed
by the City will be granted by separate order.

Done this 8th day of February 2013.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

30