Dial v. Noland Health Services

Filing 30

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 4/30/2014. (JLC)

FILED
2014 Apr-30 PM 12:45
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
QUEEN E. DIAL,
Plaintiff,
v.
NOLAND HEALTH SERVICES,
Defendant.

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) Case No.: 2:12-CV-3989-VEH
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MEMORANDUM OPINION
I.

INTRODUCTION
A.

Summary of Ms. Dial’s Claims

Plaintiff Queen E. Dial (“Ms. Dial”) initiated this job discrimination lawsuit
against Defendant Noland Health Services (“Noland”) arising under Title VII of the
Civil Rights Act of 1964 and 42 U.S.C. § 1981 on November 30, 2012. (Doc. 1). On
February 20, 2013, Ms. Dial filed a corrected amended complaint containing three
separate counts. (Doc. 11 at 5-8 ¶¶ 46-62). Count One contends that Noland retaliated
against her “for reporting and opposing discrimination” in violation of Title VII and
42 U.S.C. § 1981. (Doc. 11 at 5 ¶ 47).
Count Two asserts race discrimination against Noland under Title VII for
holding her “to a different standard than similarly situated Caucasian nurses with

respect to attendance policies . . . .” (Doc. 11 at 6 ¶ 50). Count Three maintains
interference under the Family Medical Leave Act (“FMLA”) by Noland for using
“approved FMLA time in [its] disciplinary policy . . . .” (Doc. 11 at 8 ¶ 62).
B.

Summary of Pending Matters
1.

Rule 56 Motion

Pending before the court is Noland’s Motion for Summary Judgment (Doc. 20)
(the “Motion”) which was filed on January 13, 2014. Noland filed its supporting
materials on this same date. (Docs. 21, 22).1 Ms. Dial opposed this Motion on
February 11, 2014. (Docs. 25, 26). On February 25, 2014, Noland followed with its
reply. (Doc. 60).
2.

Evidentiary Objection

Also pending is an Objection to Plaintiff’s Declaration (Doc. 29) (the
“Objection”), filed by Noland on February 26, 2014. The Objection “requests this
Court [to] strike or disregard portions of Plaintiff’s Declaration because they are
inconsistent with her sworn testimony, are not based on personal knowledge, are
hearsay, do not present best evidence, or are not understandable.” (Id. at 1). Ms. Dial
has not filed any response to this Objection.
Accordingly, the Motion and the Objection are ready for disposition. For the
1

All page references to Doc. 21 correspond with the court’s CM/ECF numbering system.
2

reasons explained below, the Motion is due to be granted, and the Objection is due
to be termed as moot.
II.

FACTUAL BACKGROUND2
Ms. Dial is a registered nurse who formerly worked for Noland at its long-term

acute-care facility located in Birmingham, Alabama. Noland hired Ms. Dial on or
about December 17, 2007, and ended her employment on or about January 13, 2012.
Prior to her separation from Noland, Ms. Dial was absent from work, beginning
on February 22, 2011, for a (second) vascular surgery. AF No. 60.3 After undergoing

2

Keeping in mind that when deciding a motion for summary judgment the court must view
the evidence and all factual inferences in the light most favorable to the party opposing the motion,
the court provides the following statement of facts. See Optimum Techs., Inc. v. Henkel Consumer
Adhesives, Inc., 496 F.3d 1231, 1241 (11th Cir. 2007) (observing that, in connection with summary
judgment, a court must review all facts and inferences in a light most favorable to the non-moving
party). This statement does not represent actual findings of fact. See In re Celotex Corp., 487 F.3d
1320, 1328 (11th Cir. 2007). Instead, the court has provided this statement simply to place the
court’s legal analysis in the context of this particular case or controversy. Finally, due to the nature
of this court’s decision on summary judgment, the foregoing statement of facts is significantly
limited in scope. In particular, due to the variety of claims that Ms. Dial has asserted, the court elects
to develop many of the pivotal summary judgment facts as part of the applicable analyses of those
claims.
3

The designation “AF” stands for admitted fact and indicates a fact offered by Noland that
Ms. Dial has admitted in her written submissions on summary judgment, in her sworn testimony, or
by virtue of any other evidence offered in support of her case. Under appendix II of the court's
uniform initial order (Doc. 3) entered on December 3, 2012, “[a]ll statements of fact must be
supported by specific reference to evidentiary submissions.” (Id. at 16). For Ms. Dial, more
specifically, this means that “[a]ny statements of fact that are disputed by the non-moving party must
be followed by a specific reference to those portions of the evidentiary record upon which the dispute
is based.” (Id. at 17). Consequently, whenever Ms. Dial has inadequately asserted a dispute over a
fact that Noland has otherwise substantiated with an evidentiary citation, the court has reviewed the
cited evidence and, if it in fact fairly supports Noland’s factual assertion, has accepted Noland’s fact.
On the other hand, whenever Ms. Dial has adequately disputed a fact offered by Noland, the court
3

this scheduled medical procedure, but before returning to work, Ms. Dial was in an
automobile accident. AF No. 61.
Due to complications from the automobile accident, Ms. Dial was unable to
return to Noland until May 16, 2011. AF No. 62. While she was still off work, Noland
informed Ms. Dial that she had exhausted her 12-week FMLA leave entitlement on
April 10, 2011, and placed her on inactive status for the remainder of her time off. AF
Nos. 63, 64.
Noland’s Hospital Division has a written staffing policy (the “Staffing Policy”)
that includes a specific provision to guarantee that patients receive sufficient nursing
care even on major holidays, and that the burden of working on major holidays is
shouldered equitably by employees.4 AF No. 20.1; (see also Doc. 22-1 at 15-16
(attaching Noland’s Staffing Policy No. HD-HR-219.05 dated March 1, 2008,
addressing staffing requirements generally and explaining major holiday rules

has reviewed the evidence cited by Ms. Dial and, if it in fact fairly supports Ms. Dial’s factual
assertion, has accepted Ms. Dial’s version. The court’s numbering of admitted facts (e.g., AF No.
60) corresponds to the numbering of Noland’s statement of undisputed material facts as set forth in
Doc. 21 and responded to by Ms. Noland in Doc. 25. A number following a decimal point
corresponds to the particular sentence within the numbered statement of facts. For example, (AF No.
20.2) would indicate the second sentence of paragraph 4 of Noland’s statement of facts is the subject
of the court’s citation to the record.
4

Noland also has a separate written policy on absenteeism, tardiness, and clocking violations
(the “ATC Policy”). (See Doc. 26-1 at 18-20 (attaching Noland’s ATC Policy No. HD-HR-201.02
dated November 1, 2010, explaining employer’s expectations and setting forth progressive
disciplinary measures for violations)).
4

specifically)).5 The Staffing Policy requires employees, including full-time nurses,
like Ms. Dial, to work one of three major holidays (New Year’s Day, Thanksgiving,
or Christmas) each year. AF No. 20.2. Noland–like other health care facilities–must
provide skilled nurses for its patients even during these major holidays, when many
workers would prefer to be “off” work. AF No. 21.
In an effort to address concerns over noncompliance with Noland’s major
holiday requirements under the Staffing Policy, Noland’s Director of Clinical
Services, Dorothy Reece (“DCS Reece”), implemented two new practices which took
effect before the Thanksgiving 2011 holiday. (Doc. 22-6 at 7 ¶ 27).6 First, nursing
employees who called “off” for a scheduled major holiday were required to notify the
Nurse Manager or DCS about the absence, not just a charge nurse. (Id. ¶ 27).
Second, nursing employees calling “off” for a scheduled major holiday because
of illness were required to bring a doctor’s excuse to substantiate the illness. Id. Ms.
Dial maintains that she did not become aware of these verbal enhancements to
Noland’s Staffing Policy until reaching the summary judgment stage of this lawsuit.
(Doc. 26-1 at 5 ¶ 25).7

5

All page references to Doc. 22-1 correspond with the court’s CM/ECF numbering system.

6

All page references to Doc. 22-6 correspond with the court’s CM/ECF numbering system.

7

All page references to Doc. 26-1 correspond with the court’s CM/ECF numbering system.
5

Ms. Dial was scheduled to work on December 25, 2011. AF No. 25. Ms. Dial
did not work on December 25, 2011, due to an upset stomach. AF No. 26.1; AF No.
26.2. Ms. Dial left a voice mail message with DCS Reece regarding her illness. AF
No. 28.
Ms. Dial also called and reached Nurse Manager Jones before her scheduled
shift. AF No. 29. Ms. Dial told Nurse Manager Jones that she could not work because
she had an upset stomach. AF No. 30.
During their December 25, 2011, telephone conversation, Nurse Manager Jones
informed Ms. Dial that she would be required to bring a doctor’s excuse related to
this absence upon her return. AF No. 32. Ms. Dial responded, “okay.” AF No. 33. As
of January 4, 2012, Ms. Dial had not provided the required medical excuse. AF No.
34.
After either DCS Reece’s or Nurse Manager Jones’ request, Ms. Dial called her
gastroenterologist to make an appointment, but his office told Ms. Dial that the doctor
was out of the country until mid-January. AF No. 36. Ms. Dial did not relay
information about her gastroenterlogist’s unavailability to DCS Reece or Nurse
Manager Jones. AF No. 37.
Though she claimed she had been unable to work for several days and though
she had been instructed to provide a doctor’s excuse in the midst of her absence
6

(which extended until December 28, 2011), Ms. Dial had not seen a doctor and
indicated during her deposition that, because of her nursing background, she was
knowledgeable about her medical condition and capable of taking care of herself. AF
No. 38.
As of January 13, 2012, Ms. Dial had still not provided the doctor’s excuse that
had first been requested 19 days earlier. AF No. 41. DCS Reece and Nurse Manager
Jones informed Noland’s Administrator (and their superior) Laura Wills
(“Administrator Wills”) that Ms. Dial had failed to turn in a doctor’s excuse for her
absence on December 25, 2011. (Doc. 22-1 at 5 ¶ 23). DCS Reece and Nurse
Manager Jones further stated to Administrator Wills that they had warned Ms. Dial
that not providing one would result in the termination of her employment. (Doc. 22-1
at 5 ¶ 23). While Ms. Dial admits that she was told about needing to produce a
doctor’s excuse, she denies ever being advised that a failure to do so would result in
her dismissal from Noland. (See Doc. 25 at 3 ¶ 37 (“Prior to being terminated, Dial
was not informed that her employment hinged on obtaining note from the MD.”)).
On the basis of her failure to obtain a doctor’s excuse, Administrator Wills
approved the recommendation of DCS Reece and Nurse Manager Jones to fire Ms.
Dial. (Id. ¶ 24). On January 13, 2012, DCS Reece and Nurse Manager Jones met with
Ms. Dial to explain their recommendation that she be discharged. (Id. ¶ 25). At this
7

meeting, DCS Reece and Nurse Manager Jones brought with them a “Record of
Conference” which noted several unexcused absences and days of tardiness,
referenced her failure to work a major holiday, and stated in part:
Employee record demonstrates pattern of failure to follow attendance
policy and staffing policy for holidays: she has not demonstrated a
sustainable improvement after counseling or after Performance
Evaluations therefore our recommendation is discharge of the employee
or termination.
(Doc. 26-1 at 16). Ms. Dial indicated in a handwritten response on this document that
she did “not agree [with] all the above information held against me.” Id.
After this meeting, Ms. Dial requested that Administrator Wills review the
recommended termination. AF No. 44. On January 27, 2012, Administrator Wills met
with Ms. Dial to conduct the requested review. (Doc. 22-1 at 5 ¶ 26). Administrator
Wills memorialized her decision to uphold the recommended action in a letter to Ms.
Dial dated February 6, 2012:
On Friday, January 13, 2012, you received a Record of Conference
where termination was recommended. Per Noland’s policy you were
referred to the Administrator for final determination. We were able to
meet your request on Friday, January 27, 2012.
I have reviewed your Record of Conference as well as the information
you presented at our meeting. I upheld the original termination decision,
to be effective, January 13, 2012, the date of the conference.
(Doc. 22-1 at 20).

8

Ms. Dial filed an EEOC charge (“Current Charge”) about her dismissal on
March 19, 2012. (Doc. 7-1 at 2).8
Prior to that adverse employment action, Ms. Dial had filed two EEOC charges
(“Earlier Charges”)9 against Noland and a related federal lawsuit in December 2010
entitled Queen Dial, et al. v. Noland Health Services, No. 2:10-CV-3548-KOB (the
“First Lawsuit”),10 asserting claims of race discrimination and retaliation. On May 1,
2012, the magistrate judge to whom the case had been referred filed a report and
recommendation recommending that Noland be granted summary judgment on Ms.
Dial’s First Lawsuit. AF No. 75. On September 10, 2012, the district judge adopted
the magistrate judge’s report and recommendation, and granted summary judgment
to Noland on Ms. Dial’s First Lawsuit. AF No. 76.
III.

STANDARDS
A.

Summary Judgment Generally

Summary judgment is proper only when there is no genuine issue of material

8

All page references to Doc. 7-1 correspond with the court’s CM/ECF numbering system.

9

Ms. Dial filed her first EEOC charge against Noland on June 26, 2009, and her second one
on April 22, 2010. AF Nos. 69, 70; (see also Doc. 22-5 at 17, 18 (copies of respective charges).
10

(See Doc. 1 in 2:10-CV-3548-KOB) (N.D. Ala. Dec. 21, 2010). On February 2, 2011, the
court severed the First Lawsuit into ten separate actions. (Doc. 16 in 2:10-CV-3548-KOB); (see also
Doc. 22-12 at 2-3 (attaching copy of order severing First Lawsuit)). Upon severance, Ms. Dial’s
First Lawsuit was renumbered and assigned to a different judge. (See Doc. 1 in 2:11-CV-0374-SLB)
(N.D. Ala. Feb. 3, 2011) (copy of severance order entered in 2:10-CV-3548-KOB).
9

fact and the moving party is entitled to judgment as a matter of law. Fed. R . Civ. P.
56(c). All reasonable doubts about the facts and all justifiable inferences are resolved
in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th
Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). “Once the moving party has properly supported its motion for
summary judgment, the burden shifts to the nonmoving party to ‘come forward with
specific facts showing that there is a genuine issue for trial.’” International Stamp
Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir. 2006) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
Finally, “[i]f the movant bears the burden of proof on an issue, because, as a
defendant, it is asserting an affirmative defense, it must establish that there is no
genuine issue of material fact as to any element of that defense.” International Stamp,
456 F.3d at 1274 (citing Martin v. Alamo Community College Dist., 353 F.3d 409,
412 (5th Cir. 2003)).
B.

Employment Discrimination Generally

A plaintiff in an employment discrimination case maintains the ultimate burden
of proving that the adverse employment decision was made because of intentional
discrimination or retaliation. See Reeves v. Sanderson Plumbing Products, Inc., 530
10

U.S. 133, 143, 120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105 (2000) (“Although
intermediate evidentiary burdens shift back and forth under this framework, ‘[t]he
ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated [or retaliated] against the plaintiff remains at all times with the
plaintiff.’” (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253,
101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207 (1981))); Nix v. WLCY Radio/Rahall
Comms., 738 F.2d 1181, 1184 (11th Cir. 1984) (“A Title VII disparate treatment
plaintiff must prove that the defendant acted with discriminatory purpose.” (citing
Clark v. Huntsville City Board of Education, 717 F.2d 525, 529 (11th Cir. 1983))).
Although the Supreme Court has established the basic allocation of burdens
and order of proof in a disparate treatment case, see, e.g., McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Burdine, supra;
Desert Palace v. Costa, 539 U.S. 90, 123 S. Ct. 2148, 56 L. Ed. 2d 84 (2003), that
framework applies only in cases in which there is no direct evidence of
discrimination. See Grigsby v. Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir.
1987) (“The McDonnell Douglas-Burdine patterns of proof were designed to ease the
evidentiary burdens on employment discrimin[a]tion plaintiffs, who rarely are
fortunate enough to have access to direct evidence of intentional discrimination.”
(citing Thornbrough v. Columbus and Greenville R.R., 760 F.2d 633, 638 (5th Cir.
11

1985), abrogated on other grounds by St. Mary’s Honor Center v. Hicks, 509 U.S.
502, 113 S. Ct. 2742, 125 L. Ed. 2d 40 (1993)).11
Under the McDonnell Douglas/Burdine scheme, a plaintiff first has the burden
of proving by a preponderance of evidence a prima facie case of discrimination.
Second, once the plaintiff proves a prima facie case, the burden of production shifts
to the defendant to articulate a legitimate, nondiscriminatory reason for its
employment decision. Finally, if the defendant carries its burden, the plaintiff must
either prove by a preponderance of the evidence that the legitimate reasons offered
by the defendant are merely a pretext for discrimination or present sufficient
evidence, of any type, for a reasonable jury to conclude that discrimination was a
“motivating factor” for the employment action, even though the defendant’s
legitimate reason may also be true or have played some role in the decision.
McDonnell Douglas, 411 U.S. at 802-05, 93 S. Ct. at 1824-26; Burdine, 450 U.S. at
252-54, 101 S. Ct. at 1093-94; Desert Palace, 539 U.S. at 101-02, 123 S. Ct. at 2155.
C.

Evidentiary Rulings

“All evidentiary decisions are reviewed under an abuse-of-discretion standard.”
11

As the Eleventh Circuit has explained, “only the most blatant remarks, whose intent could
be nothing other than to discriminate on the basis of age, . . . constitute direct evidence of
discrimination.” Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989) (citing Barnes v.
Southwest Forest Industries, Inc., 814 F.2d 607, 610-11 (11th Cir. 1987)). Ms. Dial relies upon the
circumstantial evidence model. (See, e.g., Doc. 25 at 22 (“Racial discrimination claims based on
circumstantial evidence are evaluated under the McDonnell Douglas burden shifting framework.”)).
12

See, e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997). “An abuse of
discretion can occur where the district court applies the wrong law, follows the wrong
procedure, bases its decision on clearly erroneous facts, or commits a clear error in
judgment.” United States v. Estelan, 156 F. App’x 185, 196 (11th Cir. 2005) (citing
United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005)).
Moreover, as the Eleventh Circuit has made clear, not every incorrect
evidentiary ruling constitutes reversible error:
Auto-Owners’ second argument is that it is entitled to a new trial
on the basis of what it describes as a number of erroneous evidentiary
rulings by the district court. Evidentiary rulings are also reviewed under
an abuse of discretion standard. Finch v. City of Vernon, 877 F.2d 1497,
1504 (11th Cir. 1989). Moreover, even if Auto-Owners can show that
certain errors were committed, the errors must have affected “substantial
rights” in order to provide the basis for a new trial. See Fed. R. Evid.
103(a). “Error in the admission or exclusion of evidence is harmless if
it does not affect the substantial rights of the parties.” Perry, 734 F.2d
at 1446. See also Allstate Insurance Co. v. James, 845 F.2d 315, 319
(11th Cir. 1988).
Haygood v. Auto-Owners Ins. Co., 995 F.2d 1512, 1515 (11th Cir. 1993). Therefore,
even the existence of many evidentiary errors does not guarantee an appealing party
relief from an adverse final judgment. Instead, such erroneous rulings by a district
court must “affect the substantial rights of the parties” in order for reversible error to
occur.

13

IV.

ANALYSIS
A.

Rule 56 Motion
1.

Count One for Title VII Retaliation12

To establish a prima facie case of retaliation under Title VII, a plaintiff must
show that: (1) she engaged in a protected activity; (2) she suffered an adverse
employment action, and (3) a causal connection between the two. See, e.g., Weeks v.
Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002) (“It is well established in
this circuit that to successfully allege a prima facie retaliation claim under either Title
VII, the ADEA or the ADA, a plaintiff must show that (1) she engaged in statutorily
protected expression; (2) she suffered an adverse employment action; and (3) the
adverse action was causally related to the protected expression.” (citing Pipkins v.
City of Temple Terrace, 267 F.3d 1197, 1201 (11th Cir. 2001))).
Additionally, in Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53,
126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006), the Supreme Court abrogated prior circuit
law, including that of the Eleventh Circuit, limiting anti-retaliation claims under Title
VII to claims involving actions that are related to employment or that occur at the

12

Neither party has suggested that the court analyze Ms. Dial’s Title VII retaliation claim
differently than the one she has asserted under § 1981. Further, the court finds that no such
distinction applies. See Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1257-58 (11th Cir.
2012) (analyzing Title VII retaliation and § 1981 retaliation contemporaneously).
14

workplace. Id. at 2409. Rather, post-Burlington Northern, the recognized elements
of a claim of retaliation under Title VII or § 1981 are that the plaintiff: (1) “engaged
in statutorily protected activity”; (2) “suffered a materially adverse action”; and (3)
“some causal relation between the two events.” Butler v. Alabama Dept. of Transp.,
536 F.3d 1209, 1212-13 (11th Cir. 2008) (internal quotation marks omitted) (quoting
Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008)).
To establish the causal connection prong, a plaintiff need only show that the
protected activity and the adverse employment action “were not wholly unrelated.”
Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993). However, “[t]he
cases that accept mere temporal proximity between an employer’s knowledge of
protected activity and an adverse employment action as sufficient evidence of
causality to establish a prima facie case [of retaliation] uniformly hold that the
temporal proximity must be ‘very close[.]’” Clark Cnty. Sch. Dist. v. Breeden, 532
U.S. 268, 273, 121 S. Ct. 1508, 1511, 149 L. Ed. 2d 509 (2001) (quoting O’Neal v.
Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001)). Furthermore, “Title
VII retaliation claims require proof that the desire to retaliate was the but-for cause
of the challenged employment action.” University of Tex. Southwestern Med. Ctr. v.
Nassar, 133 S. Ct. 2517, 2528, 186 L. Ed. 2d 503 (2013).
Ms. Dial asserts that she was discharged on January 13, 2012, in retaliation for
15

giving a deposition in her First Lawsuit related to her Earlier Charges. As Ms. Dial
alleges in her complaint:
In March 2009, Dial, along with other eight registered nurses
employed by Noland filed a case alleging employment discrimination.
The cases were separated and Dial continued individually.
In December 2011, Dial was deposed in the case and made known
her opposition to race discrimination in employment.
In January 2012--after giving her deposition--Queen was
terminated allegedly due to her attendance record.
(Doc. 11 ¶¶ 14-16 (footnote omitted)).
In support of its Motion, Noland contends that Ms. Dial cannot establish a
prima facie case of retaliation for two reasons. One, Ms. Dial’s Earlier Charges and
the filing of her First Lawsuit are too remote in time to establish a causal connection.
Two, while the temporal gap between her deposition and her discharge is likely
sufficiently close, the record lacks any evidence that Ms. Dial’s supervisors were
aware of her deposition when they decided to fire her. See Gupta v. Fla. Bd. of
Regents, 212 F.3d 571, 590 (11th Cir.2000), abrogated on other grounds by
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed.
2d 345 (2006) (“To establish causation, a plaintiff must show that: (1) the
decisionmakers were aware of his protected conduct and . . . .”).
Ms. Dial concedes lack of knowledge on the part of her supervisors about her
16

deposition, but counters that they were aware of her engaging in protected activity at
an earlier time:
Defendant claims that because Jones and Reese were unaware of
Dial’s Deposition. However, both Jones and Reese were aware of Dial’s
protected EEO activity. In on [sic] December 2, 2011, both Jones and
Reese were copied on a letter sent to Queen Dial that stated, “I assure
you the above referenced activity is in no relation to your EEOC charge”
[Ex. 13 Heffner letter to Dial] Dial had copied the same managers on her
letter of October 28, 2011, stating that she contended she experiencing
hostility from her supervisor Reese and wondered if it was because of
“the EEOC charges”. [Ex. 12 Dial Letter October 28, 2011] Whether
Jones or Reece knew of Dial’s deposition is not dispositive, as both
supervisors who terminated Dial were undisputably reminded in
December 2011 Dial perceived she was being retaliated against and held
to a harsher standard than her white co-workers because of EEO activity.
(Doc. 25 at 17).
Thus, in her opposition, Ms. Dial has abandoned any theory that her Earlier
Charges, her First Lawsuit, or her December 2011 deposition was the triggering
protected activity culminating in her discharge. See, e.g., Wilkerson v. Grinnell Corp.,
270 F.3d 1314, 1322 (11th Cir. 2001) (finding claim abandoned when argument not
presented in initial response to motion for summary judgment); Bute v. Schuller Int’l,
Inc., 998 F. Supp. 1473, 1477 (N.D. Ga. 1998) (finding unaddressed claim
abandoned); see also Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599
(11th Cir. 1995) (“We decline to exercise our discretion to entertain this argument
which was not fairly presented to the district court.”); Coal. for the Abolition of
17

Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000)
(failure to brief and argue issue at the district court is sufficient to find the issue has
been abandoned); Hudson v. Norfolk S. Ry. Co., 209 F. Supp. 2d 1301, 1324 (N.D.
Ga. 2001) (“When a party fails to respond to an argument or otherwise address a
claim, the Court deems such argument or claim abandoned.”); cf. Road Sprinkler
Fitters Local Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir.
1994) (concluding that a district court “could properly treat as abandoned a claim
alleged in the complaint but not even raised as a ground for summary judgment”);
McMaster v. United States, 177 F.3d 936, 940-41 (11th Cir. 1999) (claim may be
considered abandoned when district court is presented with no argument concerning
a claim included in the plaintiff’s complaint).
Instead, Ms. Dial now points to correspondence written by her on October 28,
2011 (Doc. 26-3 at 11-12),13 about her Earlier Charges and a related response dated
December 2, 2011, as evidence to prima facially support her retaliation claim.
However, neither the October 28, 2011, nor the December 2, 2011 letters are ever
mentioned in her corrected amended complaint.
Because Count One of Ms. Dial’s complaint lacks any allegations that her
protected activity constituted the letter that she sent on October 28, 2011, referencing
13

All page references to Doc. 26-3 correspond with the court’s CM/ECF numbering system.
18

her Earlier Charges, summary judgment on that type of amended retaliation claim,
which is not procedurally before the court, is appropriate. The Eleventh Circuit has
made it unmistakably clear that “[a] plaintiff may not amend her complaint through
argument in a brief opposing summary judgment.” Gilmour v. Gates, McDonald and
Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (citing Shanahan v. City of Chicago, 82
F.3d 776, 781 (7th Cir. 1996)). Gilmour dealt with a plaintiff who was attempting to
assert a new claim at the summary judgment stage. Gilmour, 382 F.3d at 1314-15.
Additionally, a more recent decision by the Eleventh Circuit cites to Gilmour
and confirms that a district court’s consideration of any critical amendment asserted
merely as part of the briefing process is disfavored.
The current practice in some district courts—especially in the
summary judgment setting—is to ignore what the respective parties
alleged in their complaint and answer and to consider their claims and
defenses as depicted in the memoranda they filed in support of or in
opposition to a motion for summary judgment. As is the situation here,
the claims and defenses presented in the memoranda supporting or
opposing summary judgment are not presented in the complaint and
answer with the specificity required by the Federal Rules of Civil
Procedure and the Supreme Court’s decisions in Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009); rather, they are presented in a shorthand fashion. The result is
that on appeal we have difficulty in determining whether the district
court, in granting summary judgment, ruled on the claims and defenses
as stated in the complaint and answer or as stated in the memoranda
submitted to the court on summary judgment, as if the pleadings had
been amended by implied consent.
19

We encountered this dilemma most recently in
GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244 (11th Cir. 2012),
cert. denied, ___ U.S. ___, 133 S. Ct. 856, 184 L. Ed.2 d 656 (2013).
There, in their motion for summary judgment, the plaintiffs sought to
eliminate a critical deficiency in the allegations of their amended
complaint by including additional facts. The defendants did not object
to this tactic on the ground that the plaintiffs were, in effect, seeking to
amend their complaint. And the district court, in ruling on the
sufficiency of the complaint, appeared to have considered the additional
facts as if they had been alleged in the complaint. In affirming the
district court’s dismissal of the claim at issue, we refused to consider
these additional facts, citing precedent that precludes a plaintiff from
amending its complaint “through argument at the summary judgment
phase of proceedings.” Id. at 1258 n. 27. “At the summary judgment
stage, the proper procedure for plaintiffs to assert a new claim is to
amend the complaint in accordance with Fed. R. Civ. P. 15(a).” Gilmour
v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004).
This court’s precedent foreclosed Well-Come’s attempt to amend
its complaint at the summary judgment stage without seeking leave of
court pursuant to Rule 15(a)(2). Accordingly, the District Court should
have disposed of Well-Come’s claim with a statement that Well-Come
failed to establish that ASRRG and ASIS issued a commercial general
liability policy and excess/umbrella liability policy to Flintlock LLC, as
alleged in paragraphs 6 and 7 of its complaint. We affirm the court’s
judgment on that ground. Krutzig v. Pulte Home Corp., 602 F.3d 1231,
1234 (11th Cir. 2010) (“This court may affirm a decision of the district
court on any ground supported by the record.”).
Flintlock Const. Servs., LLC v. Well-Come Holdings, LLC, 710 F.3d 1221, 1227-28
(11th Cir. 2013) (emphasis added).
Thus, Gilmour and Flintlock procedurally foreclose Ms. Dial from belatedly
attempting to amend her complaint in any critical manner through her brief, her

20

deposition, and/or her declaration. Further, Ms. Dial has abandoned the merits of the
retaliation claim specifically pleaded in her complaint.
Alternatively, Noland contends that even if the court accepts Ms. Dial’s belated
efforts to amend her retaliation claim and offer her October 28, 2011
correspondence14 as prima facie proof of her protected expression under Title VII’s
opposition clause,15 the claim would, nevertheless, still fail for either good faith belief
or temporal reasons connected to the timing of her discharge. (Doc. 28 at 5-6).
Turning to the good faith belief requirement, the court agrees with Noland that its
absence means that Ms. Noland cannot use her letter to substantiate her retaliation
claim. See Little v. United Technologies, 103 F.3d 956, 960 (11th Cir. 1997) (“[A]
plaintiff can establish a prima facie case of retaliation under the opposition clause of
Title VII if he shows that he had a good faith, reasonable belief that the employer was
engaged in unlawful employment practices.”).
In particular, in her letter dated October 28, 2011, Ms. Dial speculates that the
write up she received on October 25, 2011, and another write up that occurred with

14

Because a letter authored by someone else cannot constitute protected activity on the part
of Ms. Dial, the court analyzes the cognizable nature of Ms. Dial’s October 2011 correspondence
only.
15

Because her internal complaint about alleged retaliatory treatment by Noland in the form
of unfounded write ups predates the filing of her Current Charge with EEOC on March 19, 2012,
Ms. Dial’s Title VII retaliation claim is opposition-based as opposed to participation-based.
21

an unspecified date were done so in retaliation for her Earlier Charges asserted
against Noland. However because those Earlier Charges (occurring on June 26, 2009,
and April 22, 2010) predate her write ups by well over one full year (28 months and
18 months as measured by October 25, 2011, respectively), Ms. Dial could not have
reasonably believed that there was any actionable causal connection between her
Earlier Charges and the subsequent written reprimands. See Breeden, 532 U.S. at 273,
121 S. Ct. at 1511 (“The cases that accept mere temporal proximity between an
employer’s knowledge of protected activity and an adverse employment action as
sufficient evidence of causality to establish a prima facie case [of retaliation]
uniformly hold that the temporal proximity must be ‘very close[.]’” (quoting O’Neal
v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001))); see also Breeden,
532 U.S. at 268, 121 S. Ct. at 273-74 (citing with approval authorities finding 3month and 4-month gaps to be too long and holding that “[a]ction taken (as here) 20
months later suggests, by itself, no causality at all”). Further, in her October 2011
correspondence Ms. Dial does not imply, much less expressly indicate that, she relies
upon any evidence other than purported temporal proximity when complaining about
suspected retaliation by Noland in issuing the disputed reprimands.
Accordingly, for these independent procedural and substantive reasons, the
Motion is due to be granted as to Count One of Ms. Dial’s corrected amended
22

complaint asserting Title VII/§ 1981 retaliation.
2.

Count Two for Title VII Race Discrimination

Regarding discriminatory disciplinary claims, the Eleventh Circuit has
fashioned the following standard:
[W]e hold that, in cases involving alleged racial bias in the application
of discipline for violation of work rules, the plaintiff, in addition to
being a member of a protected class, must show either (a) that he did not
violate the work rule, or (b) that he engaged in misconduct similar to
that of a person outside the protected class, and that the disciplinary
measures enforced against him were more severe than those enforced
against the other persons who engaged in similar misconduct.
Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989) (emphasis added); see also
Green v. Armstrong Rubber Co., 612 F.2d 967, 968 (5th Cir. 1980) (“With respect to
discharge for violation of work rules, the plaintiff must first demonstrate by a
preponderance of the evidence either that he did not violate the rule or that, if he did,
white employees who engaged in similar acts were not punished similarly.”)
(emphasis added).16
Because Ms. Dial has admitted that she did not work on the major holiday of
Christmas as scheduled and that she did not subsequently provide a doctor’s excuse
for that absence, to satisfy a prima facie case, Ms. Dial must demonstrate the

16

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.
23

existence of other employees outside of her protected class who received more
favorable treatment than she by Noland despite committing similar infractions. In this
regard, Ms. Dial has identified three potential comparators. The court addresses each
one below.
To the extent that Ms. Dial has attempted to use another nurse, Amy Horsley
(“Ms. Horsley”), as a valid comparator because of their similar histories of tardiness
and/or non-holiday absences from work, those efforts are unavailing. More
specifically, Ms. Dial and Ms. Horsley are not similarly situated because there is no
evidence in the record that Ms. Horsley failed to report to work on a major holiday
for which she was scheduled (or neglected to provide medical documentation for the
missed day after being expressly advised to do so), an absence deemed to be more
critical to Noland than one occurring on a non-major holiday. (See, e.g., Doc. 22-6
at 7 ¶ 28 (“During my time as DCS at [Noland], any nursing employee calling off sick
on their major holiday must call in to the Nurse Manager or myself (the DCS), and
must provide a doctor’s excuse”); Doc. 22-1 at 4 ¶ 19 (“Ms. Reece stated that she
would require nursing employees to call into her or Ms. Jones if they had to be absent
for their scheduled major holiday, and–if the absence was for medical reasons–that
the medical need would have to be substantiated by a doctor’s excuse.”); id. at 9 ¶ 48
(“My understanding of Reece’s holiday practices was that they were targeted to
24

nursing employees–RNs, LPNs, and PCTs–who provided direct patient care.”)); cf.
Pugh v. Heinrich, 695 F. Supp. 533, 543 (M.D. Fla. 1988) (“Defendant notified
Plaintiff that she would need to provide a doctor’s statement for absence which
occurred in conjunction with a scheduled day off or holiday.”), aff’d without opinion,
933 F.2d 1020 (11th Cir. 1991); id. (“Plaintiff has presented no competent evidence
that any other employee was similarly situated, having such a record of taking days
off, particularly sick days, just before or after a day off or a holiday.”); cf. also
Anderson v. WBMG-42, 253 F.3d 561, 565 n.2 (11th Cir. 2001) (“The Supreme Court
has observed that ‘precise equivalence in culpability between employees is not the
ultimate question[,]’ and, therefore, has directed the emphasis of the fact finder’s
inquiry to the question of ‘comparable seriousness.’” (quoting McDonald v. Santa Fe
Trail Transportation Co., 427 U.S. 273, 283 n.11, 96 S. Ct. 2574, 2580 n.11, 49 L.
Ed. 2d 493 (1976))); Hollingsworth v. Henry County Med. Ctr. Ems, No. 05-1272 B,
2007 U.S. Dist. LEXIS 42701, at *15 (W.D. Tenn. June 12, 2007) (“There is no
evidence they [unlike the plaintiff] walked off the job on a holiday weekend leaving
a co-worker just coming off a 24-hour shift to find a replacement for them after
vocally disagreeing with an alleged employer policy and declaring their willingness
to ‘suffer the consequences.’”) (emphasis added).
In fact, on summary judgment, Noland, through Administrator Wills, has
25

disavowed Ms. Dial’s non-holiday absences and tardiness as factors in the final
decision to fire her. (See, e.g., Doc. 22-1 at 4 ¶ 18 (“I decided to terminate Queen Dial
because she violated [Noland]’s policy requiring full-time employees to work one
major holiday (New Year’s, Thanksgiving, or Christmas) each year.”); id. at 5 ¶ 24
(“On the basis of her failure to provide a doctor’s excuse to substantiate her absence
on a major holiday, I approved Ms Reece and Ms. Jones to recommend Ms. Dial’s
termination.”); see also id. (“I did not review the Record of Conference
recommending Ms. Dial’s termination before it was given to Ms. Dial.”)).
Instead, Noland relies exclusively on Ms. Dial’s major holiday infraction.
Because Ms. Horsley had no record of a holiday infraction and because Noland does
not rely upon tardiness or other missed days to support its decision to dismiss Ms.
Dial, Ms. Horsley is not a suitable comparator. The foregoing analysis applies also
to Ms. Dial’s suggestion that Caron Magouryk (“Ms. Magouryk”) is a suitable
comparator.
The court might have reached a different conclusion regarding Ms. Dial’s
reliance upon Noland’s more favorable treatment of non-nursing employee Freda
Body (“Ms. Body”), who formerly worked as a unit secretary for Noland on an asneeded basis and who also missed a major holiday for which she was scheduled to
work without submitting any medical excuse, and yet was not fired for that offense.
26

However, because Ms. Dial’s corrected amended complaint alleges disparate
treatment premised only upon Noland’s more favorable treatment of Ms. Horsley
(Doc. 11 at 5 ¶ 27) and other “similarly situated Caucasian nurses” (Doc. 11 at 6 ¶ 50
(emphasis added)), the court does not consider the sufficiency of this potential prima
facie evidence, because Ms. Dial is procedurally forbidden from attempting to amend
her complaint in such a critical fashion to include Ms. Body as an actionable
comparator by way of her opposition brief. See Gilmour and Flintlock, supra.
Having addressed the inadequacies of Ms. Dial’s comparator evidence, the
court observes that Ms. Dial has not offered any other circumstantial evidence
suggesting racial discrimination with respect to the decision to fire her for an
admitted violation of Noland’s major holiday practices implemented under the
Staffing Policy,17 e.g., racially derogatory comments uttered by DCS Reece, Nurse
Manager Jones, or Administrator Wills. Cf. Burke-Fowler v. Orange County, 447
F.3d 1319, 1325 (11th Cir. 2006) (“Because she failed to establish valid comparators
and presented no other circumstantial evidence suggesting racial discrimination,

17

The fact that Ms. Dial claims she was unaware of Noland’s additional major holiday
measures is of no consequence because when she spoke to Nurse Manager Jones about her absence
on December 25, 2011, Ms. Dial has admitted that she understood from speaking with Nurse
Manager Jones that she would need to provide a doctor’s excuse upon returning to work (AF Nos.
32, 33), and yet Ms. Dial never complied with this requirement. The record lacks proof of nurses
who acted similarly in response to a supervisory directive related to the Staffing Policy, and yet were
retained by Noland.
27

Burke-Fowler did not establish a prima facie case of race discrimination.” (citing
EEOC v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir. 2000)). Therefore,
the Motion is due to be granted on Count Two because Ms. Dial has not established
a prima facie case of race discrimination.
Alternatively and assuming the satisfaction of a prima facie case, her
discriminatory discharge claim still fails due to Ms. Dial’s inability to demonstrate
pretext in the decision to discharge her. More specifically, because Ms. Dial lacks
suitable comparator evidence and relies upon no other or, at best, only weak proof of
pretext, the record lacks “‘evidence of such quality and weight that reasonable and
fairminded men in the exercise of impartial judgment might reach different
conclusions.’” MacPherson v. University of Montevallo, 922 F.2d 766, 776 (11th Cir.
1991) (quoting Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th
Cir. 1998)); see also Reeves, 530 U.S. at 148, 120 S. Ct. at 2109 (“[A]n employer
would be entitled to judgment as a matter of law if the record conclusively revealed
some other, nondiscriminatory reason for the employer’s decision, or if the plaintiff
created only a weak issue of fact as to whether the employer’s reason was untrue and
there was abundant and uncontroverted independent evidence that no discrimination
had occurred.”) (emphasis added).
Accordingly, the Motion is due to be granted as to Count Two of Ms. Dial’s
28

corrected amended complaint asserting discriminatory discharge on the basis of race
due to her inability to satisfy a prima facie case, much less demonstrate pretext.
3.

Count Three for FMLA Interference

As the Eleventh Circuit has summarized the scope of protections afforded to
covered employees under the FMLA:
Among the substantive rights granted by the FMLA to eligible
employees are the right to “12 workweeks of leave during any 12–month
period .... [b]ecause of a serious health condition that makes the
employee unable to perform the functions of the position of such
employee,” 29 U.S.C. § 2612(a)(1), and the right following leave “to be
restored by the employer to the position of employment held by the
employee when the leave commenced” or to an equivalent position, 29
U.S.C. § 2614(a)(1). To preserve the availability of these rights, and to
enforce them, the FMLA creates two types of claims: interference
claims, in which an employee asserts that his employer denied or
otherwise interfered with his substantive rights under the Act, see 29
U.S.C. § 2615(a)(1), and retaliation claims, in which an employee
asserts that his employer discriminated against him because he engaged
in activity protected by the Act, see 29 U.S.C. § 2615(a)(1) & (2); 29
C.F.R. § 825.220(c) (“An employer is prohibited from discriminating
against employees ... who have used FMLA leave.”). To state a claim of
interference with a substantive right, an employee need only
demonstrate by a preponderance of the evidence that he was entitled to
the benefit denied. O’Connor v. PCA Family Health Plan, Inc., 200 F.3d
1349, 1353–54 (11th Cir. 2000); King v. Preferred Technical Group,
166 F.3d 887, 891 (7th Cir. 1999).
Strickland v. Water Works and Sewer Bd. of Birmingham, 239 F.3d 1199, 1206-07
(11th Cir. 2001) (footnote omitted) (emphasis added).
Ms. Dial alleges that, in “assessing [her] for termination,” Noland improperly
29

“listed a number of absences that should have been covered by FMLA time including
[] but not limited to February 25, 2011, March 2, 2011, March 6, 2011, [] March 7,
2011[,] July 8, 2011, and July 13, 2011.” (Doc. 11 ¶ 17). Ms. Dial further asserts that,
“Noland’s use of approved FMLA time in [its] disciplinary policy constitutes
interference . . .” (Id. ¶ 62).
In its Motion, Noland contends:
Plaintiff has not identified any benefit which she was denied. Every time
she requested FMLA leave, it was granted. After taking block and
intermittent FMLA leave, she was reinstated. Even when she exhausted
her FMLA leave, she was not terminated, but provided additional leave.
. . . Plaintiff’s FMLA claim is based exclusively on the fact that Reece
and Jones erroneously included the dates of four FMLA-designated
absences (occurring nine to ten months earlier) on their recommendation
for Dial’s termination.
(Doc. 21 at 29-30).
In opposition, Ms. Dial does not dispute that when she sought FMLA leave in
connection with her second vascular surgery, Noland approved her request. Ms. Dial
also does not contest that she was returned to her same nursing position on May 16,
2011, after exhausting her FMLA leave on April 11, 2011, and being placed on
inactive status. Therefore, Ms. Dial has not and cannot identify any FMLA right that
Noland denied her from exercising.
Noticeably absent from Ms. Dial’s opposition is any case authority which

30

substantiates that she has adduced sufficient evidence to support an FMLA
interference claim based merely upon the inaccuracies concerning her absences from
work contained in the Record of Conference recommending the termination of her
employment, especially when the record otherwise establishes that the final discharge
decision was not premised upon any of these disputed days. See Flanigan’s Enters.,
Inc. v. Fulton County, Ga., 242 F.3d 976, 987 n.16 (11th Cir. 2001) (holding that a
party waives an argument if the party “fail[s] to elaborate or provide any citation of
authority in support” of the argument); Ordower v. Feldman, 826 F.2d 1569, 1576
(7th Cir. 1987) (stating that an argument made without citation to authority is
insufficient to raise an issue before the court).
In fact, the summary judgment record conversely substantiates that, in restoring
Ms. Dial to her former position post-surgery and car accident, Noland actually gave
her more protection than she was legally entitled to receive under the FMLA. Cf.
McGregor v. Autozone, Inc., 180 F.3d 1305, 1308 (11th Cir. 1999) (affirming
summary judgment against plaintiff challenging her post-FMLA leave demotion
because she “was absent for more than the protected period of time [and], [therefore,]
. . . did not have a right to be restored to her prior or similar position.”).
Furthermore, to the extent that Ms. Dial no longer relies on any of the FMLArelated dates alleged in her corrected amended complaint and, instead, points to
31

absences in December 2011 listed on the Record of Conference (see, e.g., Doc. 25 at
29 (“By not considering the Dial’s December absence due to hemodialysis side
effects is another way Noland interfered with Dial’s FMLA rights.”)), she is
procedurally forbidden from attempting to amend her complaint by way of her
opposition brief. See Gilmour and Flintlock, supra.
Accordingly, for these independent substantive and procedural reasons, the
Motion is due to be granted as to Count Three of Ms. Dial’s corrected amended
complaint asserting FMLA interference.
B.

Objection

Because the court concludes that its rulings on summary judgment are
appropriate with or without consideration of the challenged portions of Ms. Dial’s
declaration, the Objection is due to be termed as moot.
V.

CONCLUSION
For all the reasons stated above, Noland’s Motion is due to be granted, and Ms.

Dial’s lawsuit is due to be dismissed with prejudice. The court will enter a separate
order consistent with this memorandum opinion.
DONE and ORDERED this the 30th day of April, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge
32