Talley v. University of Alabama Board of Trustees
MEMORANDUM OPINION. Signed by Judge R David Proctor on 9/6/2016. (AVC)
2016 Sep-06 PM 01:16
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
TRITON HEALTH SYSTEMS, LLC,
Case No.: 2:14-cv-02325-RDP
Plaintiff Laura Talley (“Plaintiff” or “Talley”) filed this action against Defendant, Triton
Health Systems, LLC ("Defendant" or "Triton") asserting claims of interference and retaliation
under the Family Medical Leave Act (“FMLA”). The case is presently before the court on cross
Motions for Summary Judgment (Docs. # 14 and 17). Also before the court are Defendant’s
Motion To Strike (Doc. # 19), and Plaintiff’s Motion To Strike or, in the Alternative, Motion In
Limine (Doc # 32). The Motions are fully briefed. (See Docs. # 14 through 17, 19, and 24
through 35). For the following reasons, the parties’ Motions to Strike and Plaintiff’s Motion for
Summary Judgment are due to be denied, and Defendants Motion for Summary Judgment is due
to be granted.
Triton is the parent company of VIVA Health, Inc. (“VIVA”), a health insurance
company that provides employer group health insurance plans and private Medicare coverage to
individuals in Alabama. (Doc. # 16-1 at ¶ 2).
A. Defendant’s FMLA Policy
Triton is a covered employer under the FMLA. (Doc. # 1 at ¶ 5; Doc. # 4 at ¶ 5). It
maintains a FMLA Policy, which Plaintiff received and with which she agreed to comply. (Doc.
# 16-1 at ¶ 4; Doc. # 16-2 at 50:4-53:1, 54:11-55:2, Exs. 8-10, Ex. 11 at pp. 39-43). Plaintiff
understood that, under that Policy, FMLA leave is not automatic. (Doc. # 16-2 at 55:3-7, Ex. 11
at pp. 40-41; Doc. # 16-1 at ¶ 4). To qualify for FMLA leave, employees at Triton must first
complete and submit an application for leave to Human Resources (“HR”), accompanied by a
certification of a serious health condition. (Doc. # 16-1 at 55:8-56:15, Ex. 11 at pp. 40-42; Doc.
# 1 at ¶¶ 4-5). Without following these steps, leave will not be approved. (See id.).
B. Plaintiff’s Employment with Defendant
Plaintiff worked for Triton as Director of Quality Improvement from October 31, 2011,
until her termination on August 8, 2013. (Doc. # 16-2 at 45:8-20, 46:6-11, 76:23-77:6, Ex. 6;
Doc. # 19-1 at ¶ 3). She reported directly to Executive Director for Medicare Revenue and
Quality Management, Lesley Weir. (Doc. # 16-2 at 49:7-12; Doc. # 16-3 at 17:15-18:6; Doc. #
16-4 at ¶¶ 2-3; Doc. # 16-5 at ¶ 2). Weir, in turn, reported directly to Vice President of
The facts set out in this opinion are gleaned from the parties’ submissions of facts claimed to be
undisputed, their respective responses to those submissions, and the court’s own examination of the evidentiary
record. All reasonable doubts about the facts have been resolved in favor of the nonmoving party. See Info. Sys. &
Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002). These are the undisputed “facts” for
summary judgment purposes only. They may not be the actual facts that could be established through live testimony
at trial. See Cox v. Admr. U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994). The court
notes where facts are disputed.
Corporate Development Libba Yates. (Doc. # 16-2 at 49:13-18; Doc. # 16-4 at ¶ 2; Doc. # 16-5
at ¶ 2).
In her role as Director of Quality Improvement, one of Plaintiff’s primary functions and
responsibilities was to manage the five employees working in the Quality Improvement (“QI”)
department. (Doc. # 16-2 at 46:17-48:21, Ex. 7; Doc. # 16-3 at 21:11-20; Doc. # 16-4 at ¶ 3;
Doc. # 29-2 at ¶ 4). She understood that her performance as a manager required positive
communication skills and productive interaction with subordinates and co-workers. (Doc. # 16-2
at 46:17-48:21, 80:19-22, 81:6, Ex. 7). Plaintiff also served as a strategic planner for the QI
department’s functions. (Doc. # 16-4 at ¶ 3).
Plaintiff underwent two performance reviews during her employment with Defendant.
(Doc. # 16-3 at 35:10-47:7, Ex 1 at pp. 000093-94, 120-24, 238-43). Both reviews were
conducted by Weir. (Id.; Doc. # 16-3 at 29:4-6). The reviews reflect that Plaintiff competently
performed her substantive job duties, meeting or exceeding her employer’s expectations. (Doc. #
16-3 at 35:10-47:7, Ex 1 at pp. 000093-94, 120-24, 238-43). Plaintiff says that she “had always
received positive feedback from Ms. Weir.” (Doc. # 19-1 at ¶ 19). She also testified that she
“had never been disciplined or counseled.” (Id.).
In her declaration Weir states that, beginning in Plaintiff’s first week of employment,
despite the content of her performance reviews, she held conversations with Plaintiff “about her
style and approach to co-workers and subordinates.” (Doc. # 16-4 at ¶ 4). Weir reports that
Plaintiff’s “style was very curt and rough and was frequently perceived as negative and
unnecessarily hostile,” and other employees at Triton told Weir they did not enjoy working with
Plaintiff, and disliked her tone and attitude in regular, daily communications. (Id.). Yates notes
in her declaration that she was aware of, and displeased with, Plaintiff’s interactions with coworkers. (Doc. # 16-5 at ¶ 3).
Weir testified she constantly coached Plaintiff “on her style and demeanor.” (Doc. # 16-4
at ¶ 5). Weir explained that she did not address her concerns about Plaintiff through written
reprimands or in a disciplinary way out of respect to Plaintiff and her position. (Id.). At her
deposition, Weir testified that, while she could not recall if she had put anything negative in
writing concerning Plaintiff’s performance, VIVA would have had any such written
documentation on file. (Doc. # 16-3 at 47:8-21).
In her declaration, Weir also stated that Plaintiff’s demeanor and behavior never
improved, and that Weir continued to receive comments and complaints from Plaintiff’s peerlevel co-workers. (Doc. # 16-4 at ¶ 5). Specifically, Doug Cannon, a Vice-President at VIVA,
and Danielle Brown, VIVA’s Associate Director of Care Management, told Weir that they did
not appreciate the manner in which Plaintiff communicated with others. (Id. at ¶ 4). The
“Director [of Provider Engagement], Carol Davis, told [Weir] she would simply not work with
[Plaintiff] any longer.” (Id.; see also Doc. # 16-6 at 12:6-15).
Weir explained that in April 2013, while preparing for a meeting with management-level
employees at VIVA, Plaintiff “included highly critical and personal comments about upper-level
management” in the agenda without consulting Weir. (Doc. # 16-4 at ¶ 8). “A co-worker
expressed concerns with [Plaintiff’s] decision to include those comments, but she disregarded
them.” (Id.). Weir had “multiple conversations” with Plaintiff about Plaintiff’s lack of judgment
in preparing for that meeting and how it related to her communication problems with co-workers
that Weir and Plaintiff had discussed. (Id.). Plaintiff denies ever making comments of a
“personal” nature about anyone (Doc. # 29-2 at ¶ 11), and says that, during her employment with
Defendant, she was “never counseled, disciplined or otherwise made aware that any employee
had a problem working with me.” (Doc. # 29-2 at ¶ 7).
According to Defendant, Plaintiff also began having problems related to her attendance
(Doc. # 16-4 at ¶ 7). Plaintiff missed “a couple” of meetings that Yates
scheduled and that other managers were required to attend.
(Id.). On multiple occasions,
Plaintiff arrived at work at 10:00 a.m., or slightly later. (Id. at ¶ 9; Doc. # 16-2 at 88:2-4, 93:1014, Ex. 17). Weir also reported that, on several occasions, Plaintiff was late or completely
missed meetings that she had scheduled and was responsible for conducting, and offered no
excuse or explanation as to why she was late or missed the meetings. (Doc. # 16-4 at ¶ 7; Doc. #
16-2 at Ex. 17 at p. 000199; see also Doc. # 16-2 at 90:22; Doc. # 16-5 at ¶ 3). In her
declaration, Yates notes that she observed and was displeased with Plaintiff’s work attendance.
(Doc. # 16-5 at ¶ 3; see also Doc. # 16-4 at ¶ 7).
Weir talked with Plaintiff about her absence and tardiness issues “several times,” and told
her to establish a schedule for herself. (Doc. # 16-4 at ¶ 9; Doc. # 16-2 at 88:16-89:1).
However, Plaintiff’s first-year performance review states that she was “in good standing with the
attendance policy” (Doc. # 16-2 at Ex. 1 at p. 000122), and her second-year review states that
she “consistently adheres to all departmental and company policies.” (Id. at p. 000240). Weir
excused some of Plaintiff’s absences when an excuse was provided. (Doc. # 19-3 at pp. 00022425, 229-31, 233; Doc. # 16-2 at Ex. 17 at pp. 000224-25, 229-31, 23).
Plaintiff understood that her position not only required punctual and regular attendance, but also
compliance with Triton’s Attendance Policy, which instructed every employee of Triton to maintain both the
attendance and punctuality necessary to perform her job duties, or face discipline up to and including termination.
(Doc. # 16-2 at 53:18-54:10, 87:1-9). The Attendance Policy contained in VIVA’s Employee Handbook. (Doc. # 162 at Ex. 11, pp. 46-47). The court’s reading of Defendant’s summary judgment motion indicates that Defendant has
not relied on any issues with Plaintiff’s attendance to explain its termination decision.
Plaintiff scheduled an appointment with Yates for July 25, 2013, while her supervisor
Weir was on vacation. (Doc. # 16-5 at ¶ 3; Doc. # 16-2 at 95:2-8). At their meeting, Plaintiff
told Yates that she wanted to take on other programs and create a new department with a
different structure so that QI and Care Management would be under the same leadership. (Doc.
# 16-5 at ¶ 3; Doc. # 16-2 at 95:6-97:20). Plaintiff’s restructuring proposal contemplated a new
reporting structure that could have potentially removed QI from Weir’s supervision, although
Plaintiff also acknowledged there was a possibility that Weir could have been the supervisor of
this newly proposed department. (Id.). Yates felt that Plaintiff was going behind Weir’s back
and attempting to remove QI from under Weir’s supervision, thereby diminishing Weir’s
authority and responsibility. (Doc. # 16-5 at ¶ 3). Yates told Plaintiff that she was surprised
Plaintiff would want to take on additional tasks because she “had personally observed her
inability to get to work on time and show up for meetings.” (Id.; Doc. # 16-4 at ¶ 11). When
Weir found out about Plaintiff’s meeting with Yates, Weir was “upset and disappointed,” and
believed Plaintiff had gone over her head in an “attempt to poison” her with Yates out of a
reaction to her criticisms and counseling. (Doc. # 16-4 at ¶¶ 11-12).
Plaintiff testified that she had issues with Weir’s management style, although she did not
complain to any of her superiors about that style. (Doc. # 16-2 at 98:2-6). Plaintiff had asked
her QI staff to come to her first with any issues, instead of going directly to Weir. (Doc. # 16-2
at 99:10-23; Doc. # 16-4 at ¶ 12). Plaintiff had told Weir that she was “sick of people going over
[her] head” to complain. (Doc. # 16-4 at ¶ 12).
On July 31, 2013, Weir and Yates discussed (first over email because Yates was out of
the office) that Weir could no longer work with Plaintiff. (Doc. # 16-5 at ¶ 4; Doc. # 16-4 at ¶
13). Weir and Yates also met on July 31, 2013. Either Weir or Yates3 compiled notes from that
meeting during which they discussed Plaintiff and Weir’s complaints about her. (Doc. # 16-1 at
¶ 8; Doc. # 16-1 at pp. 000175-78). It is not clear how that discussion took place because Yates
was out of the office that day. (Doc. # 16-5 at ¶ 4). Yates later gave a copy of the notes to
Executive Director of Human Resources Ryland-Holmes. (Doc. # 16-1 at ¶ 8).
Also on July 31, 2013, Weir met with Ryland-Holmes to discuss what she had learned
about Plaintiff’s July 25, 2013 meeting with Yates. (Doc. # 16-1 at ¶ 7). Weir told RylandHolmes that she felt she could no longer trust Plaintiff and had decided to terminate her
employment. (Id.). Ryland-Holmes informed Weir that she would need to discuss that proposed
termination with Yates. (Id.). As Plaintiff’s supervisor, it was Weir’s decision whether to
terminate Plaintiff’s employment. (Doc. # 16-4 at ¶ 13; Doc. # 16-3 at 59:9-13). However, Weir
was required to obtain approval from HR or the CEO of VIVA before implementing that
decision; HR and the CEO could approve or reject a recommendation of termination. (Doc. #
16-4 at ¶ 13; see Doc. # 16-2 at ¶ 8). Ryland-Holmes did not make or participate in the decision
to terminate Plaintiff. (Doc. # 16-1 at ¶ 10).
During the first week of August 2013, Plaintiff spoke and met with Manager of Human
Resources Maria DePiano Arrington on multiple occasions. (Doc. # 16-2 at 104:14-109:10,
111:20-113:16, Exs. 19-21; Doc. # 19-1 at ¶ 16). They met August 2, 2013, regarding Plaintiff’s
concerns that Weir was giving her the “cold shoulder” and would not meet with Plaintiff. (Doc.
# 16-2 at Ex. 19). Plaintiff felt like something was “going on” with Weir. (Id.). She was also
concerned that Weir had found out about the meeting about reorganizing departments she had
with Yates. (Id.; Doc. # 16-2 at 113:1-4). Plaintiff was shocked that Weir thought she had an
attendance problem, and complained of Weir as being a “micro-manager” and “nano-manager.”
The Rule 56 evidence is not clear as to which one compiled the notes.
(Doc. # 16-2 at Ex. 19). Arrington suggested Plaintiff give Weir a few more days as Weir might
still be catching up on work after her vacation, and suggested that Plaintiff let Weir know she
took to heart their conversation regarding attendance on July 18, 2013. (Id.; see also Doc. # 16-4
at ¶ 9).
Arrington and Plaintiff spoke again on August 7, 2013. Plaintiff expressed concern that
she felt “something was going on,” and she still felt like Weir was giving her a “cold shoulder.”
(Doc. # 16-2 at Ex. 21). Plaintiff made statements questioning if “her days [were] numbered,”
and asked if Weir was trying to get rid of her. (Id.). Plaintiff was still worried and upset about
Weir finding out about the meeting with Yates. (Id.).
C. Plaintiff’s Need for FMLA Leave
Plaintiff’s husband has severe neuropathy in his feet as a result of Type 2 diabetes. (Doc.
# 16-2 at 61:1-20; Doc. # 19-1 at ¶ 4; Doc. # 19-2 at ¶¶ 2-4). Plaintiff anticipated taking FMLA
leave in order to: assist her husband with, and oversee, his medication regimen; attend doctor’s
visits; and to provide him with comfort, support, hygiene, nutrition, safety, and transportation
needs. (Doc. # 16-2 at 61:21-65:2; Doc. # 19-1 at ¶¶ 5-6; see Doc. # 19-2 at ¶¶ 6, 9). Plaintiff’s
husband’s condition had been deteriorating, he had taken leave from his own job, he was on
short-term disability, and he could not manage his health condition alone. (Doc. # 19-1 at ¶¶ 78; Doc. # 19-2 at ¶¶ 4-5, 8-9).
Plaintiff discussed the concerns she had about her husband’s health with Weir on a
regular basis, beginning in either 2012 or 2013. (Doc. # 19-1 at ¶ 10; Doc. # 16-2 at 130:4132:2; Doc. # 16-3 at 55:3-21, 56:16-57:6). Weir does not recall if she ever personally advised
Plaintiff of her right to take FMLA leave. (Doc. # 16-3 at 58:6-8; see also Doc. # 19-1 at ¶ 11).
She did testify that Plaintiff never indicated to her that her husband’s condition was worsening,
but that Weir “suppose[s]” that feet tingling meant his diabetes was getting worse. Doc. # 16-3 at
Prior to her termination, Plaintiff attempted to schedule two meetings with Weir to
discuss scheduling FMLA leave. (Doc. # 19-1 at ¶ 13; see Doc. # 16-2 at Ex. 19). Plaintiff sent
Weir an email “calendar” request, which Weir denied without explanation. (Id.). She felt that
Weir was ignoring her and giving her a “cold shoulder.” (Doc. # 16-2 at Exs. 19, 21; Doc. # 192 at ¶¶ 13, 16).
On July 31, 2013 (the same day that Weir and Yates met, and Weir and Ryland-Holmes
met, respectively), Plaintiff talked to Arrington, Manager of Human Resources Operations, to
inquire about taking FMLA leave to care for her husband.4 (Doc. # 16-2 at 56:16-57:16, 129:13130:3; Doc. # 19-1 at ¶ 14; Doc. # 16-1 at ¶ 6; Doc. # 26-1 at ¶ 2). Plaintiff characterizes her
discussion with Arrington as requesting FMLA leave. (Doc. # 16-2 at 129:13-22; Doc. # 19-1 at
¶ 4). After Plaintiff spoke with Arrington, Brandon Patterson, a member of Triton’s Human
Resources department, sent Plaintiff the FMLA forms she was required to complete and submit
in order to be approved for leave under the FMLA Policy. (Doc. # 16-2 at 57:17-60:10, 130:2-3,
Ex. 12; Doc. # 19-1 at ¶ 15; Doc. # 16-1 at ¶ 6). Plaintiff did not return the completed paperwork
prior to her termination. (Doc. # 16-1 at ¶ 6).
Plaintiff had an appointment with her husband’s physician scheduled for August 9, 2013,
to obtain the requisite certification. (Doc. # 19-1 at ¶ 15; see also Doc. # 19-2 at ¶ 7). Plaintiff
testified that she talked with HR one or two more times about trying to take leave before she was
Plaintiff states Arrington told her to “try again” with Weir, and she did send another meeting request to
Weir, but never was able to meet with her. (Doc. # 19-1 at ¶ 14). She does not indicate when this alleged set of
events occurred. Arrington denies ever recommending that Plaintiff discuss a leave request with Weir or any other
employee outside of HR. (Doc. # 26-1 at ¶ 3).
terminated. (Doc. # 16-2 at 60:11-23; Doc. # 19-1 at ¶ 17). Arrington denied having any further
conversations with Plaintiff again about FMLA leave. (Doc. # 26-1 at ¶ 4).
D. Plaintiff’s Termination
On August 5, 2013, after Yates returned to the office, Weir, Ryland-Holmes, and Yates
met. (Doc. # 16-5 at ¶ 4; Doc. # 16-4 at ¶ 13). They discussed Weir’s concerns with Plaintiff’s
communication style and “unacceptable behavior” toward co-workers, in addition to the
complaints Weir had received from Plaintiff’s co-workers.
“documentation” of her concerns. (Doc. # 16-5 at ¶ 4). She recommended termination because
she felt, “for multiple reasons,” that Plaintiff could not effectively manage her department and
because she lacked trust and confidence in Plaintiff as a supervisor. (Doc. # 16-4 at ¶¶ 13-14;
Doc. # 16-5 at ¶ 4; Doc. # 16-3 at 59:9-16). Weir said she would not work with Plaintiff
anymore and would not continue to work for VIVA if Plaintiff remained in her position reporting
to Weir. (Doc. # 16-4 at ¶ 13).
Although Weir was aware of Plaintiff’s husband’s health issues, she was not aware that
Plaintiff had referenced any need to take FMLA leave, or that she had inquired about such leave
and requested forms, until after she recommended Plaintiff’s termination. (Doc. # 16-3 at 58:914; Doc. # 16-4 at ¶ 14; Doc. # 26-1 at ¶ 6). Weir candidly admitted, however, that even if she
had known, she would have still recommended termination for the reasons stated above. (Doc. #
16-4 at ¶ 14).
On August 7 and 8, 2013, Ryland-Holmes performed follow-up interviews with several
of Plaintiff’s co-workers and subordinates regarding her communication style and relationship
with Weir. (Doc. # 16-1 at ¶ 9; Doc. # 16-5 at ¶ 5; Doc. # 26-2 at ¶ 5). Each employee RylandHolmes
communication style and negative behavior. (Id.). These employees also reported that Plaintiff
often criticized Weir. (Id.). Ryland-Holmes took notes and shared her findings with Yates. (Id.;
Doc. # 16-1 at pp. 000153-74; see also Doc. # 16-6 at 18:10-15).
On August 7, 2013, Director of Provider Engagement Carol Davis emailed Yates, and
Yates met with her the morning of August 8, 2013. (Doc. # 16-5 at ¶ 6). Davis complained
about Plaintiff’s “attitude or behavior” toward her. (Doc. # 16-6 at 16:10-14; Doc. # 16-5 at ¶ 6).
Davis had no authority to make termination decisions regarding Plaintiff. (Doc. # 26-2 at ¶ 6).
On August 8, 2012, Yates approved Weir’s recommendation that Plaintiff’s employment
be terminated “due to her inability to work with other employees and effectively manage her
department.” (Doc. # 16-5 at ¶ 7). She based her approval on the information she received from
Weir, Davis, and Ryland-Holmes’s investigations about Plaintiff’s “negative personality and
harsh communication style.” (Id.). Yates was not aware that Plaintiff had discussed taking
FMLA leave with HR personnel, and she had not had any conversations with Ryland-Holmes,
Weir, or any other employee about Plaintiff’s request for FMLA paperwork. (Id. at ¶ 8; Doc. #
26-1 at ¶ 6). Prior to Weir’s recommendation of termination, Ryland-Holmes also had not had
any such conversations with Yates, Weir, or other employees outside of HR about Plaintiff’s
request for FMLA paperwork. (Doc. # 16-1 at ¶ 11). Yates says she would have approved
Weir’s termination recommendation even if she had known about Plaintiff’s request for FMLA
paperwork because her termination decision was due to Plaintiff’s “inability to work with other
employees (including two of VIVA’s most valued Executive Director level employees)” and
“effectively manage her department.” (Doc. # 16-5 at ¶ 8).
Yates met with Plaintiff on August 8, 2013, to terminate Plaintiff’s employment. (Doc. #
19-1 at ¶¶ 18-19; Doc. # 16-5 at ¶ 7; Doc. # 16-1 at ¶ 10). Ryland-Holmes attended the meeting
as a witness. (Doc. # 16-1 at ¶ 10; Doc. # 19-1 at ¶ 19). Weir did not attend. (Doc. # 16-3 at
59:17-21). Yates informed Plaintiff that her employment was being terminated due to her
inability to work with other employees and effectively manage her department. (Doc. # 16-1 at ¶
10). Plaintiff states that Yates and Ryland-Holmes told her she was “no longer a fit” (Doc. # 191 at ¶ 19), and when she asked them what they meant by that, they responded that “several
people” had complained about her. (Id. at ¶ 21).
Plaintiff was shocked. (Id. at ¶ 19). At the time of her termination, at Weir’s suggestion
and with her approval, Plaintiff had been scheduled to attend two out-of-town conferences in the
Fall of 2013. (Id. at ¶ 20; see Doc. # 16-2 at 125:20-126:15, Ex. 24). Yates apologized to
Plaintiff and told Plaintiff that she had “done so much” for the company. (Doc. # 19-1 at ¶ 21).
Yates and Ryland-Holmes gave Plaintiff the option of resigning and signing a full release, but
Plaintiff declined to do so. (Id. at ¶ 23). Plaintiff asked Yates and Ryland-Holmes if they were
aware of her interest in taking FMLA leave and request for paperwork. (Id. at ¶ 22). They did
not respond, and Ryland-Holmes left the meeting. (Id.). Plaintiff’s Termination of Employment
form, which she did not sign, states only that she was “Discharged (Involuntary).” (Doc. # 1912).
The Motions to Strike
Both parties filed motions to strike various portions of the evidentiary submissions.
(Docs. # 27, 32).
In her motion to strike, Plaintiff argues that numerous portions of the
declarations submitted by Defendant “contain inadmissible hearsay, irrelevant or immaterial
information, conclusory statements, lack relevant firsthand knowledge, attempt to authenticate
documents not authored or created by the declarant, and attempt to make inadmissible legal
conclusions.” (Doc. # 32 at p. 2). She also contends that the Declaration of Lesley Weir (Doc. #
16-4) should be stricken in its entirety because it was executed before Plaintiff filed this case.
(Doc. # 32 at p. 3).
In its motion, Defendant contends that Plaintiff’s Declaration (Doc. # 19-1) contains
contradictory statements, irrelevant evidence, and conclusory allegations, and that Plaintiff’s
Exhibits 4-10 and 12-14 (Docs. # 19-3 through 19-9, and 19-11 through 19-13) should be
stricken because they lack proper authentication under Federal Rule of Civil Procedure 56(e) and
Federal Rule of Evidence 901. (Doc. # 27 at pp. 1, 5-6). Both sides’ arguments are without
Federal Rule of Civil Procedure 56 is clear that affidavits or depositions containing
conclusory arguments, as opposed to statements of fact based on personal knowledge, are
improper. Walton v. Neptune Tech. Grp., Inc., No. 08-cv-5, 2009 WL 3379916, at *1 (M.D. Ala.
Oct. 19, 2009) (citations omitted). Although testimony violating these standards may be subject
to a motion to strike, the “court need not strike the entire affidavit or deposition, rather it may
strike or disregard the improper portions and consider the remainder of the testimony.” Id.
(citation omitted). The court is able to determine when testimony and statements contained in
the parties’ evidentiary submissions are conclusory or irrelevant and due to be disregarded,
without striking such evidence.
Courts may consider hearsay on summary judgment so long as the statement can be
reduced to admissible form at trial. See, e.g., Jones v. UPS Ground Freight, 683 F.3d 1283,
1293-1294 (11th Cir. 2012) (“a district court may consider a hearsay statement in passing on a
motion for summary judgment if the statement could be reduced to admissible evidence at trial
or reduced to admissible form[ ]”); Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999)
(same). Similarly, even unauthenticated or otherwise inadmissible evidence is properly
considered on summary judgment so long as it can be reduced to admissible form at trial. See,
e.g., Rowell v. BellSouth Corp., 433 F.3d 794, 800 (11th Cir. 2005) (on summary judgment,
courts consider “evidence which can be reduced to an admissible form”); Longcrier v. HL–A
Co., Inc., 595 F.Supp.2d 1218, 1223 (S.D. Ala. 2008) (“The general rule in this Circuit is that
parties' exhibits may be considered for purposes of pretrial rulings so long as they can be reduced
to admissible form at trial[ ]”). Again, the court can determine, without striking, what, if any,
hearsay testimony would be inadmissible at trial and thus inappropriate to consider at the
summary judgment stage.5
As to conflicting evidence in the Rule 56 record, it is axiomatic that “[c]redibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge.” Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 150-51 (2000) (citation omitted). Where evidence is conflicting on a material issue,
the court has not concluded that the fact at issue is established for purposes of summary
judgment. Where otherwise admissible conflicting evidence is presented, that evidence goes to
whether summary judgment should be granted, not whether the evidence should be stricken.
Plaintiff’s assertion that the Declaration of Lesley Weir should be stricken because it was
prepared prior to the initiation of this case, and because it was not disclosed in discovery, is
misplaced. First, there is nothing suspicious about an employer anticipating litigation may come
from a terminated employee. And, as Weir’s declaration reveals, it was obtained shortly after
Weir voluntarily resigned her employment with Defendant and, thus, Defendant was faced with
the possibility that Weir might no longer have been readily available as a witness. (Doc. # 16-4).
To remind the parties, it is the court and not the jury or the parties which is the “gatekeeper” and therefore
rules on the admissibility of statements under the rules of evidence at trial. That gatekeeper role does not disappear
when evidentiary materials are presented for summary judgment purposes.
Second, by its terms, Federal Rule of Civil Procedure 26(a)(3) does not require disclosure of
evidence to be used solely for impeachment purposes. Finally, Plaintiff deposed Weir (Doc. #
16-3) and had a full and fair opportunity to question Weir on any matters related to Plaintiff’s
employment with Defendant, including her request for FMLA forms, and termination. Thus,
even if Defendant’s failure to provide the Weir Declaration was inappropriate, that failure is
“harmless.” Fed. R. Civ. P. 37(c)(1). The Weir Declaration will not be stricken.
Finally, Defendant argues that ten of Plaintiff’s exhibits should be stricken because they
lack proper authentication.6 (Doc. # 27 at p. 1). It does not appear that the actual authenticity of
the documents is at issue. To be sure, Plaintiff simply has proffered these ten exhibits without
any attempt at authentication. But, Defendant’s argument misses the mark by a wide margin. As
a general rule, Federal Rule of Civil Procedure 56(e) requires documents to be properly
authenticated before they may be considered at the summary judgment stage. Bozeman v. Orum,
199 F. Supp. 2d 1216, 1222 (M.D. Ala. 2002) (citation omitted). But federal courts routinely
consider unauthenticated documents on motions for summary judgment, for example, when it is
apparent (as it is here) that such documents are capable of reduction to admissible, authenticated
form. See, e.g., Rule 56(c)(2), Fed.R.Civ.P. (“A party may object that the material cited to
support or dispute a fact cannot be presented in a form that would be admissible in evidence.”);
Johnson v. Mobile Infirmary Medical Center, 2015 WL 1538774, *1 (S.D. Ala. Apr. 7, 2015)
(“It is well settled that exhibits are properly considered for summary judgment purposes as long
as they may be reduced to admissible form at trial.”). Although Defendant has objected to
Plaintiff’s reliance on unauthenticated documents, it is apparent to the court that the challenged
The court finds it curious that some of the exhibits Defendant seeks to strike (Docs. # 19-3, 19-9) are
exhibits to Lindsey Weir’s and Plaintiff’s depositions, which Defendant itself has submitted as evidence. (Doc. #
16-3 at Ex. 1, Doc. # 16-2 at Exs. 17, 18).
documents can be reduced to admissible, authenticated form at trial.7
Moreover, the very
documents Defendant seeks to strike were produced by Defendant.8 Therefore, Defendant’s
argument that these documents should be stricken is not only without merit, but also it is wholly
Accordingly, for all the foregoing reasons, both Plaintiff’s and Defendant’s Motions to
Strike are due to be denied.
Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The party asking for summary judgment always bears the initial responsibility of
informing the court of the basis for its motion and identifying those portions of the pleadings or
filings which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323.
Once the moving party has met its burden, Rule 56(c) requires the non-moving party to go
beyond the pleadings and – by pointing to affidavits, or depositions, answers to interrogatories,
and/or admissions on file – designate specific facts showing that there is a genuine issue for trial.
See id. at 324.
Plaintiff also seeks to strike an exhibit to the Declaration of Cindy Ryland-Holmes (Doc. # 16-1) as
improperly authenticated. (Doc. # 32 at p. 4). That exhibit is handwritten notes by Lindsey Weir given to RylandHolmes. (Doc. # 16-1). Yet, Plaintiff filed that exact same set of handwritten notes in support of her Motion. (Doc.
The court considered setting these Motions for a hearing to determine what documents the parties truly
contend are subject to some authenticity objection. The moving party would then be paying for an authentication
deposition, with a sanction of a payment to be made to an appropriate charity. But the court concluded that the
parties would be satisfied with a denial of their motions to strike instead.
The substantive law will identify which facts are material and which are irrelevant. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Anderson”). All reasonable doubts
about the facts and all justifiable inferences are resolved in favor of the non-movant. See Allen v.
Bd. of Pub. Educ. For Bibb Cty., 495 F.3d 1306, 1314 (11th Cir. 2007); 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, 477 U.S. at 248. If
the evidence is merely colorable, or is not significantly probative, summary judgment may be
granted. See id. at 249.
When faced with a “properly supported motion for summary judgment, [the non-moving
party] must come forward with specific factual evidence, presenting more than mere
allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson v.
Liberty Lobby, Inc., teaches, under Rule 56(c) a plaintiff may not simply rest on her allegations
made in the complaint; instead, as the party bearing the burden of proof at trial, she must come
forward with at least some evidence to support each element essential to her case at trial. See
Anderson, 477 U.S. at 252. “[A] party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of [her] pleading, but . . . must set
forth specific facts showing that there is a genuine issue for trial.’” Id. at 248 (citations omitted).
Summary judgment is mandated “against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. “Summary judgment may be
granted if the non-moving party’s evidence is merely colorable or is not significantly probative.”
Sawyer v. Southwest Airlines Co., 243 F. Supp. 2d 1257, 1262 (D. Kan. 2003) (citing Anderson,
477 U.S. at 250-51).
“[A]t the summary judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson, 477 U.S. at 249. “Essentially, the inquiry is ‘whether the evidence presents
a sufficient disagreement to require submission to the jury or whether it is so one-sided that one
party must prevail as a matter of law.” Sawyer, 243 F. Supp. 2d at 1262 (quoting Anderson, 477
U.S. at 251-52); see also LaRoche v. Denny’s, Inc., 62 F. Supp. 2d 1366, 1371 (S.D. Fla. 1999)
(“The law is clear . . . that suspicion, perception, opinion, and belief cannot be used to defeat a
motion for summary judgment.”).
The Cross Motions for Summary Judgment
In this case, both parties have moved for summary judgment. Plaintiff contends she is
entitled to summary judgment because she can establish a claim of FMLA interference and
retaliation as a matter of law, and (she argues) it is undisputed that Defendant’s reasons for
terminating her were merely pretextual.9 Defendant argues that Plaintiff failed to establish either
her FMLA interference claim or her FMLA retaliation. Defendant further argues that, even if
she could establish a prima facie case of retaliation, Defendant’s reason for terminating her was
legitimate and non-retaliatory, and not pretextual. The court addresses the FMLA interference
Plaintiff’s argument is misguided. Plaintiff’s argument is based primarily on an absence of documented
counseling from Defendant, and bolstered by evidence that Plaintiff was scheduled to attend certain conferences in
the future at the time of her termination. Plaintiff apparently misapprehends what is required to establish pretext. In
order to demonstrate pretext, a plaintiff must show that the employer's offered reason was not the true reason for its
decision, “either directly by persuading the court that a discriminatory reason more likely motivated the employer or
indirectly by showing that the employer's proffered explanation is unworthy of credence.” Jackson v. State of Ala.
State Tenure Comm'n., 405 F.3d 1276, 1289 (11th Cir. 2005) (quotation omitted). Importantly, conclusory
allegations of discrimination, without more, are insufficient to show pretext. Mayfield v. Patterson Pump Co., 101
F.3d 1371, 1376 (11th Cir. 1996). A plaintiff's showing that an employer's proffered reason is unpersuasive does not
necessarily establish that the plaintiff's proffered reason is correct; a district court still must conclude that the
employer's real reason was impermissible. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 524, 113 S. Ct. 2742,
2756, 125 L. Ed. 2d 407 (1993). Plaintiff’s denial that her performance was deficient is simply insufficient to
establish pretext. See Smith v. Papp Clinic, P.A., 808 F.2d 1449, 1452–53 (11th Cir.1987)(“[I]f the employer fired
an employee because it honestly believed that the employee had violated a company policy, even if it was mistaken
in such belief, the discharge is not ‘because of race’ ”).
and retaliation claims in turn below.
For the following reasons, the court concludes that
Defendant’s Motion is due to be granted, and Plaintiff’s Motion is due to be denied.
A. Plaintiff Cannot Establish a FMLA Interference Claim
To establish an FMLA interference claim, a plaintiff must establish that she was denied a
leave benefit to which she was entitled. Strickland v. Water Works & Sewer Bd. of City of
Birmingham, 239 F.3d 1199, 1206-07 (11th Cir. 2001) (citations omitted). “The employee need
not allege that [her] employer intended to deny the benefit, because ‘the employer’s motives are
irrelevant.’” Hawkins v. BBVA Compass Bancshares, Inc., 2014 WL 4715865, at *15 (N.D. Ala.
Sept. 22, 2014) (quoting Strickland, 239 F.3d at 1208), aff’d, 613 Fed. Appx. 831 (11th Cir.
2015) (per curiam).
In Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1236 (11th Cir. 2010), the Eleventh
Circuit held that “the right to commence FMLA leave is not absolute, and that an employee can
be dismissed, preventing her from exercising he right to commence FMLA leave, without
thereby violating the FMLA, if the employee would have been dismissed regardless of any
request for FMLA leave.” Krutzig, 602 F.3d at 1236. In other words, the FMLA does not
“protect deficient employees from adverse employment actions, such that those workers could
actually attain job security by seeking leave under the FMLA.” Schaaf v. Smithkline Beecham
Corp., 602 F.3d 1236, 1242 (11th Cir. 2010).
In her Motion for Summary Judgment, Plaintiff argues that she is entitled to judgment as
a matter of law on her interference claim because she was terminated after requesting FMLA
leave forms from Defendant’s human resources department. In her response to Defendant’s
Motion for Summary Judgment, Plaintiff supplements this position by arguing that she can show
FMLA interference in three ways: (1) Defendant failed to advise her of her FMLA rights, (2)
Defendant failed to respond to her requests for FMLA leave, and (3) Defendant terminated her
before she could commence FMLA leave. The court addresses each of these contentions below.
Plaintiff’s argument that Defendant did not advise her of her FMLA rights or respond to
her requests for leave are inapposite. Plaintiff received Defendant’s Employee Handbook and
signed acknowledgments that she understood and would follow Defendant’s FMLA policy.
(Doc. # 16-1 at ¶ 4; Doc. # 16-2 at 50:4-53:1, 54:11-55:2, Exs. 8-10, Ex. 11 at pp. 39-43). She
also testified that she understood that, under Defendant’s FMLA Policy, FMLA leave is not
automatic. (Doc. # 16-1 at 55:3-7, Ex. 11 at pp. 40-4). Whether or not Weir advised her of her
FMLA rights is irrelevant. Plaintiff received Defendant’s policy, and under that policy, Weir’s
input was unnecessary. (See Doc. # 16-2 at Ex. 11 at pp. 39-43). In addition, Plaintiff was
aware that HR handled FMLA requests. (Doc. # 16-2 at 56:9-12, Ex. 11 at pp. 40-42). Indeed,
on July 31, 2013, Plaintiff talked to Arrington in HR to inquire about taking FMLA leave, and
HR provided her the requisite FMLA forms. (Doc. # 16-2 at 56:16-60:10, 129:13-130:3, Ex. 12;
Doc. # 19-1 at ¶¶ 14-15; Doc. # 16-1 at ¶ 6; Doc. # 26-1 at ¶ 2). Thus, it is undisputed on this
record that Defendant advised Plaintiff of her FMLA rights, and responded to her inquiry about
leave by providing her with the forms necessary to request leave.
In light of these undisputed facts, all that remains of Plaintiff’s interference claim is her
contention that Defendant interfered with her FMLA rights by terminating her employment.
“[T]he right to commence FMLA leave is not absolute, and  an employee can be dismissed,
preventing her from exercising he right to commence FMLA leave, without  violating the
FMLA, if the employee would have been dismissed regardless of any request for FMLA leave.”
Krutzig, 602 F.3d at 1236. “Thus, Plaintiff’s FMLA claims essentially merge into one claim,”
which “sounds in retaliation, not interference.” Hawkins, 2014 WL 4715865, at *16. Because
“her interference claim is largely a clone of her FMLA retaliation claim,” Plaintiff’s interference
claim based on her termination fails as a matter of law, and the question vel non is whether
Defendant retaliated against her.10
B. Plaintiff’s FMLA Retaliation Claim Is Due To Be Dismissed
“The prima facie case of retaliation under the FMLA is the same as under Title VII [of
the Civil Rights Act of 1964] and requires a showing of (1) statutorily protected conduct, (2)
adverse employment action, and (3) causation.” Penaloza v. Target Corp., 549 Fed. Appx. 844,
847-48 (11th Cir. 2013) (citing Krutzig, 602 F.3d at 1234-35); see also McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Once a plaintiff successfully makes out a prima facie case,
the burden shifts to the employer “to articulate a legitimate reason for the adverse action.”
Martin v. Brevard Cty. Public Schools, 543 F.3d 1261, 1268 (11th Cir. 2008) (citation omitted).
If the employer does so, the employee must then show that the employer’s proffered reason was
pretextual by presenting evidence “sufficient to permit a reasonable factfinder to conclude that
the reasons given by the employer were not the real reasons for the adverse employment
decision.” Id. In making this showing, the employee must show that her employer intentionally
discriminated against her for exercising a FMLA right.
Id. at 2167 (citing 29 U.S.C. §
2615(a)(2); 29 C.F.R. § 825.220(c)). If the proffered reason is one that might motivate a
reasonable employer, however, the plaintiff must “meet it head on and rebut it” instead of merely
quarreling with it. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1099 (11th Cir. 2004). Of
course, a finding that the proffered reason is false does not compel an inference of retaliation,
Even if Plaintiff’s interference claim were not essentially a retaliation claim, Defendant would still be
entitled to summary judgment on it. This is because the Rule 56 evidence demonstrates that Plaintiff would have
been terminated regardless of her inquiries into FMLA leave. The FMLA does not “protect deficient employees
from adverse employment actions, such that those workers could actually attain job security by seeking leave under
the FMLA.” Schaaf, 602 F.3d at 1242. And, as explained more fully below, Plaintiff has failed to present sufficient
Rule 56 evidence that the stated reason for her termination was pretextual. Accordingly, her interference claim is
also due to be dismissed on this alternative ground.
because the burden of proving retaliatory intent remains at all times with the employee. St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993).
Plaintiff Has Not Established a Prima Facie Case
Plaintiff contends that she has established a prima facie case and points particularly to the
short temporal proximity (i.e., approximately one week) between request for FMLA leave and
her termination. Defendant disagrees and suggests that Plaintiff has attempted to orchestrate a
causal connection based upon timing.
But it is not for this court to make a credibility
determination about why Plaintiff went to Arrington to inquire about FMLA leave. That is the
good news for Plaintiff. The bad news, however, is that despite that acknowledgement she still
cannot establish the causation element of her prima facie case.
Arrington was aware of Plaintiff’s request for leave, but Arrington was not a decision
maker in this case. Conversely, Weir and Yates were decision makers, but were not aware of
Plaintiff’s request for FMLA forms.
To establish causation, Plaintiff must show that the
decision-makers were aware of her protected conduct. Stone v. Geico Gen. Ins. Co., 279 F.
App'x 821, 823 (11th Cir. 2008) (the protected activity must be known to the decision-maker
who takes the adverse action). Here, no causal connection has been established. Therefore,
Plaintiff has failed to establish a prima facie case.
Plaintiff Has Failed to Establish Defendant’s Reason for Her
Termination is a Pretext
Assuming for the sake of argument that Plaintiff has established a prima facie case of
retaliation (and, to be clear, she has not), there is no Rule 56 evidence suggesting that
Defendant’s proffered reason for terminating her employment is pretextual. Defendant has
explained that it terminated Plaintiff’s employment due to her poor professional behavior and
improper style of communication as an employee and manager. The undisputed record evidence
shows that Weir, Plaintiff’s supervisor, and Yates, Weir’s supervisor, already had concerns about
Plaintiff’s effectiveness prior to July 2013. Furthermore, Defendant has presented evidence that
other employees complained about Plaintiff’s leadership and professional demeanor. (See Doc. #
16-4 at ¶¶ 4-5; Doc. # 16-1 at ¶ 9, pp. 000153-74; Doc. # 16-5 at ¶ 5; Doc. # 26-2 at ¶ 5). Not
only has Defendant articulated a legitimate, non-retaliatory reason for Plaintiff’s termination, but
also it has presented undisputed evidence in support of that reason.
Therefore, the burden shifts back to Plaintiff to show that Defendant’s reason for her
termination was merely pretextual. In her summary judgment motion, Plaintiff argues that
Defendant’s proffered reason is pretextual because she received good performance reviews
during her time of employment with no negative write-ups, and because she had been approved
by Weir to attend two conferences at the time of her termination. Further, Plaintiff contends that
the timing of the investigation into her performance is suspect.
As Defendant admits, Plaintiff had received good performance reviews for 2011 and
2012. (Doc. # 16-3 at 35:10-47:7, Ex 1 at pp. 000093-94, 120-24, 238-43). And, as Plaintiff
argues, Defendant does not have many written examples of discipline which it issued to Plaintiff.
Nevertheless, Defendant has presented substantial evidence of complaints from Plaintiff’s
coworkers and subordinates from 2013, the year Plaintiff was terminated, independent of her
performance reviews. (See Doc. # 16-4 at ¶¶ 4-5; Doc. # 16-1 at ¶ 9, pp. 000153-74; Doc. # 16-5
at ¶ 5; Doc. # 26-2 at ¶ 5). Thus, while documentation of discipline is certainly a prudent HR
practice, the court’s role is to assess whether unlawful practices under the FMLA have occurred,
“not to act as a super personnel department that second-guesses employers’ business judgments.”
Wilson, 376 F.3d at 1092. The burden is on Plaintiff to present evidence that Defendant’s reason
was not the true reason for its decision, “either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by showing that the
employer's proffered explanation is unworthy of credence.” Jackson v. State of Ala. State Tenure
Comm'n., 405 F.3d 1276, 1289 (11th Cir. 2005) (quotation omitted). This, she has failed to do.
Moreover, and in any event, even if the actual reason for Defendant’s termination of
Plaintiff were not what it has stated, Plaintiff has not shown by a preponderance of the evidence
that her inquiries into FMLA leave were the real reason for her termination. Again, Plaintiff had
inquired about FMLA leave and timely received the requisite paperwork under Defendant’s
policy. She did not, however, return the completed paperwork prior to her termination. (Doc. #
16-1 at ¶ 6).
Moreover, although Yates and Ryland-Holmes were present for Plaintiff’s termination
meeting, and informed Plaintiff of her termination, Plaintiff concedes that Weir was the final
decision maker regarding her termination. (Doc. # 28 at ¶ 19) (“Weir made the ‘final’ decision to
terminate Plaintiff’s employment, according to Defendant’s own sworn interrogatory
responses.”). Plaintiff also agrees that, although Weir was required to secure Yates’s approval
before she could implement the decision, “according to Ryland-Holmes, Weir made the decision
to terminate Plaintiff on July 31, 2013, the very day Plaintiff received FMLA paperwork.” (Id.).
The court agrees that the undisputed facts in the Rule 56 record plainly show that Weir was the
final decision maker on Plaintiff’s employment, subject to Yates’s approval. (Doc. # 16-4 at ¶
13). The Rule 56 evidence demonstrates that Weir had no knowledge of Plaintiff’s request to
HR for FMLA leave papers and, even if she did have that knowledge, she would have still
recommended termination. (Doc. # 16-3 at 58:9-14; Doc. # 16-4 at ¶ 14; Doc. # 26-1 at ¶ 6). It
is likewise undisputed that Yates had no knowledge of Plaintiff’s request to HR for FMLA leave
papers, but even if she had, she would have approved the termination decision in any event.
(Doc. # 16-5 at ¶ 8; Doc. # 26-1 at ¶ 6). Finally, even if Ryland-Holmes were aware of
Plaintiff’s FMLA request, she testified that she did not share that knowledge with Weir or Yates.
(Doc. # 16-1 at ¶¶ 9-11).
After careful review, the undisputed Rule 56 evidence shows that the decision to
terminate Plaintiff’s employment was made for legitimate business reasons by those who did not
know of her FMLA inquiries, and she has failed to show that the reasons given for her
termination were pretextual.
Therefore, Defendant is entitled to summary judgment on
Plaintiff’s retaliation claim.
For all these reasons, the parties’ Motions to Strike (Docs. # 27 and 28) and Plaintiff’s
Motion for Summary Judgment (Doc. # 17) are due to be denied. Defendant’s Motion for
Summary Judgment (Doc. # 14) is due to be granted.
A separate order will be entered.
DONE and ORDERED this September 6, 2016.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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