Haley-Muhammad et al v. Colonial Management Group, LP

Filing 43

MEMORANDUM OPINION AND ORDER DISMISSING CASE that it is ORDERED that the motion for summary judgment filed by defendant, Colonial Management Group, LP, is GRANTED, and all claims asserted herein by Kimberly Haley-Muhammad are DISMISSED with prejudice and costs are taxed to plaintiff as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 3/16/2015. (AHI)

FILED
2015 Mar-16 PM 03:06
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
KIMBERLY HALEYMUHAMMAD,
Plaintiff,
vs.
COLONIAL MANAGEMENT
GROUP, LP,
Defendant.

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Civil Action No. 5:13-CV-2061-CLS

MEMORANDUM OPINION AND ORDER
This action was jointly commenced by Kimberly Haley-Muhammad and
Deborah L. Rhynes against their former employer, Colonial Management Group, LP.
Their joint complaint alleged violations of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e et seq., the Family and Medical Leave Act of 1993,
29 U.S.C. § 2601 et seq. (“FMLA”), and 42 U.S.C. § 1981.1 This court severed the
claims of Deborah L. Rhynes from those of Kimberly Haley-Muhammad in a
memorandum opinion and order entered on August 26, 2014.2 Kimberly HaleyMuhammad then filed an amended complaint, asserting claims of race discrimination
and a racially hostile work environment under Title VII and § 1981, and retaliation

1

See doc. no. 1 (Complaint).

2

See doc. no. 23 (Memorandum Opinion and Order).

under the FMLA.3 The case presently is before the court on defendant’s motion for
summary judgment.4 Upon consideration of the pleadings, briefs, evidentiary
submissions, and oral arguments of counsel, this court concludes that the motion
should be granted.
I. SUMMARY JUDGMENT STANDARDS
Federal Rule of Civil Procedure 56 provides that a court “shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In
other words, summary judgment is proper “after adequate time for discovery and
upon motion, 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. v. Catrett, 477 U.S. 317, 322 (1986).
“In making this determination, the court must review all evidence and make all
reasonable inferences in favor of the party opposing summary judgment.” Chapman
v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v.
City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the nonmoving party are not unqualified, however. “[A]n inference is not reasonable if it is

3

Doc. no. 24 (Amended Complaint).

4

Doc. no. 33.

2

only a guess or a possibility, for such an inference is not based on the evidence, but
is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d
1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,
[t]he mere existence of some factual dispute will not defeat summary
judgment unless that factual dispute is material to an issue affecting the
outcome of the case. The relevant rules of substantive law dictate the
materiality of a disputed fact. A genuine issue of material fact does not
exist unless there is sufficient evidence favoring the nonmoving party
for a reasonable jury to return a verdict in its favor.
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration
supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986)
(asking “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law”).
II. SUMMARY OF FACTS
Defendant, Colonial Management Group, LP (“Colonial”), operates methadone
treatment centers throughout the United States.5

Plaintiff, Kimberly Haley-

Muhammad, is an African-American. She was hired by Colonial in November of
2002, to work as a Treatment Services Coordinator in the company’s Huntsville
Metro Treatment Center (“Huntsville Metro”).6
5

Doc. no. 35-6 (Hamer Deposition), at 24.

6

Doc. no. 24 (Amended Complaint), ¶ 4.

3

A.

Plaintiff’s Employment as a Treatment Services Coordinator
Plaintiff worked as a Treatment Services Coordinator at Huntsville Metro from

November of 2002 to July of 2011, during which time she was supervised by Program
Director Steve Flora.7 Flora, who is white, often discouraged his African-American
employees from taking leave, but he rarely discouraged his white employees from
doing so.8 Plaintiff lodged a complaint in 2010 with Flora’s supervisor, Regional
Director Susan Case, alleging that Flora was creating a “hostile work environment”
by “screaming, hollering, [and] cursing” at his employees.9 Colonial conducted an
investigation into plaintiff’s complaint, terminated Flora’s employment, and gave him
$8,335.68 in severance pay.10
B.

Plaintiff’s Promotion to Program Director
Regional Director Susan Case, who is white, promoted plaintiff to the position

formerly held by Steve Flora, Program Director of Huntsville Metro, in July of
2011.11 As Program Director, plaintiff managed the daily operations of Huntsville

7

Doc. no. 35-2 (Plaintiff’s Deposition), at 55–56, 192–93.

8

Id. at 197.

9

Id. at 102–04 (alteration supplied). Plaintiff testified that Flora never used any kind of
racial slur or made any sexually offensive comments. Id. at 103. She also testified that Flora
screamed at both African-American and white employees. Id. at 105–06.
10

Id. at 107; doc. no. 35-7 (Defendant’s Answers to Interrogatories), ¶ 6.

11

Doc. no. 35-2 (Plaintiff’s Deposition), at 56.

4

Metro and supervised its medical and clinical staff.12 Regional Director Susan Case
served as plaintiff’s direct supervisor from July of 2011 until Case stepped down from
her position in May of 2012.13
1.

Plaintiff’s training while under Susan Case’s supervision

As plaintiff’s supervisor, Susan Case was responsible for training plaintiff on
her duties as the Program Director of Huntsville Metro: duties that included ensuring
that the treatment center prepared for and passed inspections conducted by the
Alabama Department of Mental Health.14
When the State of Alabama changed its mandated patient assessment
procedures during August of 2011, plaintiff asked Case to train her on the changes.15
Case refused to do so, however, and instead told plaintiff to “[j]ust do it.”16 On the
other hand, Case did provide such training to Brent Hamer, the white Program
Director of a Colonial treatment center in Birmingham.17
After being denied training by Case, plaintiff worked with her staff to research
the new requirements, but “in the middle of training . . . Susan Case told [plaintiff]
12

Id. at 57.

13

Id. at 60; doc. no. 35-6 (Hamer Deposition), at 20.

14

Doc. no. 35-2 (Plaintiff’s Deposition), at 114.

15

Id. at 67–68.

16

Id. (alteration supplied).

17

Id. at 61.

5

to stop; that it was not correct.”18 Plaintiff continued to ask Case for training from
December of 2011 to May of 2012, but Case instructed plaintiff to wait until October
1, 2012, when the State would provide further instructions.19 Significantly, however,
the State’s inspection of Huntsville Metro was set to occur five months earlier, in
May of 2012.20 Plaintiff lodged a verbal complaint with Colonial’s Director of
Human Resources, Kristin Hilton, in May of 2012, alleging that she had not been
trained to implement changes in patient assessment procedures.21 Notably, plaintiff
did not mention race discrimination in her complaint.22
2.

Racial remarks while plaintiff was under Susan Case’s supervision

Sometime during 2011, Regional Director Susan Case decided to hire a new
Treatment Services Coordinator for Huntsville Metro.23 Two of Case’s top three
choices for the position were African-American, and the other was white.24 Case
hired an African-American, Anthony Ardis, for the position.25
During the hiring process, however, Case stated in a “high tone” to plaintiff
18

Id. at 68 (alteration supplied).

19

Id. at 69.

20

Doc. no. 35-2 (Plaintiff’s Deposition), at 114–117.

21

Id. at 71.

22

Id. at 110.

23

Id. at 72.

24

Id.

25

Id.

6

that it was against Colonial policy “to have all African-American management,”
because “the management team had to match the [patient] population.”26 The patient
population of the Huntsville Metro Treatment Center is 90 percent white.27 Case
testified in an affidavit that the Commission on Accreditation of Rehabilitation
Facilities conducted an audit of Huntsville Metro in September of 2011, and
“determined that the staff did not match the clinic population, as the management and
most of the staff were African-American, and the patient population was
predominately White.”28

The “Opioid Treatment Program Standards Manual”

produced by the Commission states that treatment centers must demonstrate cultural
competency: a benchmark that is accomplished, at least in part, “by hiring persons
who are representative of the persons served.”29
Case frequently engaged in “screaming matches” with plaintiff.30 On one
occasion, she told plaintiff: “Just do as I tell you to do, you and your people are just
being stubborn, just do it.”31 Plaintiff testified that she never complained that Case’s
reference to “you and your people” was either racist or offensive because she “feared
26

Doc. no. 35-2 (Plaintiff’s Deposition), at 80 (alteration supplied).

27

Id. at 81.

28

Doc. no. 35-5 (Case Affidavit), ¶ 8.

29

Doc. no. 35-9 (CARF Standards Manual), at 33.

30

Doc. no. 35-2 (Plaintiff’s Deposition), at 199.

31

Id. at 200 (emphasis supplied).

7

for [her] job.”32
Susan Case stepped down from her position as Regional Director in May of
2012, and Colonial hired Brent Hamer to replace her.33 Hamer had served as the
Program Director for one of Colonial’s treatment centers in Birmingham for eleven
years before his promotion.34 Colonial did not post the job opening, however, so
plaintiff did not have an opportunity to apply for it.35
C.

FMLA Leave
Plaintiff took FMLA leave from June 4 to July 17, 2012, during which time

Regional Director Brent Hamer “was in charge” of Huntsville Metro.36
Director of Human Resources Kristin Hilton visited Huntsville Metro on June
27, 2012, while plaintiff was on leave.37 During her visit, Hilton discovered that
disciplinary notices had been issued to two lower-level employees by one of the
center’s Treatment Services Coordinators on September 28, 2011: i.e., during the
year prior to plaintiff’s FMLA leave.38 According to Colonial policy, however,
32

Id. at 206 (alteration supplied).

33

Case became the Program Director at Colonial’s Mobile treatment center in May of 2012.
She was terminated in October of 2013 and given $9,507.68 in severance pay. Doc. no. 35-6 (Hamer
Deposition), at 18–19; doc. no. 35-7 (Defendant’s Responses to Interrogatories), ¶ 6.
34

Doc. no. 35-6 (Hamer Deposition), at 12.

35

Doc. no. 35-2 (Plaintiff’s Deposition), at 213.

36

Id. at 125.

37

Id. at

38

Doc. no. 35-6 (Hamer Deposition), at 31–32; doc. no. 35-8 (Final Warning).

8

disciplinary notices may be issued only by a Program Director. Therefore, Kristin
Hilton issued the following “Final Warning” to plaintiff on July 15, 2012, two days
before plaintiff returned to work:39
The [disciplinary notices] were presented on September 28, 2011
by the Treatment Services Coordinator[,] which resulted in
miscommunication of the situation. As a result[,] two Equal
Employment Opportunity Commission charges were filed. During the
investigation of the charges and in the months leading up to mediation
on April 3, 2012[,] at no time did Ms. [Haley-Muhammad] divulge to
the Director of Human Resources that she did not present the
documentation. The information could have resulted in an additional
financial loss to the organization. The progressive discipline actions
must be presented by Program Directors as they are trained in
disciplinary procedures.
Ms. [Haley-Muhammad’s] actions are a dereliction of duty and
did result in a financial loss to the organization. Ms. [HaleyMuhammad] observed poor judgment and failed to follow the correct
course of action as stated in the [Colonial Policy and Procedure
Manual].
Ms. [Haley-Muhammad’s] actions are in violation of [three
sections of the Policy and Procedure Manual:] “Unprofessional behavior
to patients, co-workers or vendors”; “Inability, negligence or
unwillingness to perform assigned work or maintain expected
performance levels; poor performance”; and, “Insubordination,
including inability to work amicably with supervisor or fellow team
members (poor attitude) as well as refusal to perform tasks assigned by
a supervisor.”

39

Hilton made the decision to discipline plaintiff, see doc. no. 35-6 (Hamer Deposition), at
31, but the Final Warning was presented to plaintiff by Brent Hamer on July 19, 2012 — i.e., two
days after plaintiff returned from leave. See doc. no. 35-2 (Plaintiff’s Deposition), at 165.

9

Action Plan for Improvement:
Ms. [Haley-Muhammad] will make sure that she is following the
proper procedures at all times. Ms. [Haley-Muhammad] will review the
Policy and Procedure Manual and direct any questions or concerns to the
Regional Director and/or the Corporate Office. Any other policy
violations will result in further disciplinary action, up to and including
separation of employment[.]
Doc. no. 35-8 (Final Warning) (alterations supplied). Plaintiff believed the “Final
Warning” to be unfair. Not only was it the first discipline she had received during her
ten years of employment with Colonial,40 but on September 28, 2011 — the date on
which the disciplinary notices had been issued — plaintiff was on vacation, and her
direct supervisor (Susan Case) had instructed the Treatment Services Coordinator to
issue the notices.41 Regardless of the fairness of those circumstances, there is no
evidence that the warning was motivated by a racist animus. Further, no tangible
consequences attached to it, either on the date of its issuance or subsequently.
D.

Drug Enforcement Administration Audit
Two Drug Enforcement Administration (“DEA”) investigators conducted an

audit of Huntsville Metro treatment records on June 26, 2012. Their investigation
covered the quarterly period from March 26 through June 26, 2012,42 and revealed

40

See doc. no. 24 (Amended Complaint), ¶ 9.

41

See doc. no. 35-2 (Plaintiff’s Deposition), at 167–68, 182–83.

42

Plaintiff was on FMLA leave for 23 days of this 93-day period.

10

both “a significant shortage of Methadone” in the center’s inventory, and a failure “to
account for and properly maintain records of approximately 3,423 milligrams or
dosage units of methadone.”43 Colonial was informed by the U.S. Department of
Justice in a subsequent e-mail, dated August 2, 2012, that the DEA investigation had
revealed:
1.

158 violations of 21 C.F.R. § 1305.13(b), failure to accurately and
fully complete DEA Form 222. . . .

2.

10 violations of 21 C.F.R. § 1305(d), failure to send Copy 2 of
DEA Form 222 to the DEA Special Agent in Charge for the area
in which the supplier is located. . . .

3.

365 violations of 21 C.F.R. § 1305.17(c), failure to maintain its
original Copy 3 of DEA Form 222 separate from other
documents. The investigation revealed that [Huntsville Metro]
commingled the original DEA Form 222 with other documents.

4.

1 violation of 21 C.F.R. § 1304.21(a). General failure to maintain
complete and accurate records. The DEA’s inspection revealed
an overall careless and haphazard record-keeping practice at
[Huntsville Metro]. . . .

43

Doc. no. 35-8 (E-mail from U.S. Department of Justice), at ECF 2. “ECF” is the acronym
for “Electronic Case Filing,” a system that allows parties to file and serve documents electronically.
See Atterbury v. Foulk, No. C-07-6256 MHP, 2009 WL 4723547, *6 n.6 (N.D. Cal. Dec. 8, 2009).
Bluebook Rule 7.1.4 permits citations to the “page numbers generated by the ECF header.” Wilson
v. Fullwood, 772 F. Supp. 2d 246, 257 n.5 (D.D.C. 2011) (citing The Bluebook: A Uniform System
of Citation R. B. 7.1.4, at 21 (Columbia Law Review Ass’n et al., 19th ed. 2010)). Even so, the
Bluebook recommends “against citation to ECF pagination in lieu of original pagination.” Wilson,
772 F. Supp. 2d at 257 n.5. Thus, unless stated otherwise, this court will cite the original pagination
in the parties’ pleadings. When the court cites to pagination generated by the ECF header, it will,
as here, precede the page number with the letters “ECF.”

11

As you are aware, [Huntsville Metro] is one of several treatment
centers owned/operated by the Colonial Management Group in
Alabama. All of the Alabama Treatment Centers operate under the same
management structure. According to DEA records, record maintenance
violations appear to be a systemic problem with Colonial’s Alabama
facilities. In light of the DEA’s prior warnings and efforts, including a
notice of admonishment in 2010, [Huntsville Metro’s] violations are
highly egregious and evidence a complete disregard for its statutory and
regulatory obligations.
...
[Huntsville Metro] is thus potentially subject to civil penalties that
may amount to millions of dollars. Our office is prepared to institute
proceedings for the civil prosecution of [Huntsville Metro’s] violations.
Doc. no. 35-11 (E-mail from U.S. Department of Justice), at ECF 2–3 (alterations
supplied). Colonial was fined $1.8 Million dollars as a result of the audit.44 Even
though the “deficiencies” in the DEA audit were attributable in the first instance to
a nurse at Huntsville Metro, Regional Director Brent Hamer held plaintiff responsible
because, as Program Director, she ultimately was responsible for all record-keeping
and training of medical personnel.45
E.

Alabama Department of Mental Health Inspection
The Alabama Department of Mental Health’s “Methadone Authority” inspected

Huntsville Metro between May 15 and 17, 2012 — i.e., two weeks before plaintiff’s

44

Doc. no. 35-6 (Hamer Deposition), at 57–60.

45

Id.

12

June 4 through July 17 FMLA leave began.46 The Department communicated the
results of the inspection to Colonial in the following letter dated July 27, 2012 — ten
days after plaintiff returned to work:
The site visit of [Huntsville Metro] revealed that your agency is
not in substantial compliance with Alabama Department of Mental
Health standards. As a result of the review findings, effective
immediately your agency . . . is placed on a sixty (60) day Provisional
certification status. This certification will expire September 25, 2012.
A Plan of Action to address noted deficiencies in the site visit
report is due to the Office of Certification Administration within thirty
(30) days from receipt of this letter. Failure to submit the Plan of Action
within the time period specified may result in immediate decertification
of your programs. Prior to the expiration of Provisional Certification
status your programs will undergo a complete site certification review.
Further certification of those programs will be determined by the
outcome of that review.
Doc. no. 35-10 (Department of Mental Health Site Report), at ECF 2 (alteration
supplied, emphasis in original).
Brent Hamer told plaintiff that he would handle the “plan of action” required
by the Department of Mental Health.47 Plaintiff sent Hamer a text message on August
15, 2012, reminding him to complete and submit the plan.48 It appears that the plan

46

Doc. no. 35-2 (Plaintiff’s Deposition), at 115–17.

47

Id. at 130.

48

Id. at 132.

13

of action was timely submitted.49
The Alabama Department of Mental Health returned to Huntsville Metro on
September 25, 2012, for the purpose of conducting its follow-up inspection, and
determined that many of the deficiencies still had not been corrected:
This was a follow-up review of the previous provisional score
awarded to Huntsville Metro Treatment Center May 15–17, 2012. Most
administrative issues were either resolved or a plan was in place to
correct them. Reviewers found little progress as evidenced by staff
interviews, client interviews[,] and review of clinical documentation that
programmatic issues were being addressed. Many of the same clinical
issues previously [c]ited remain uncorrected.
Doc. no. 35-12 (Second Inspection Report), at ECF 4 (alterations supplied).
Huntsville Metro was granted another 60-day provisional certification on
December 19, 2012.50
F.

Termination
Colonial terminated plaintiff’s employment on September 26, 2012, the day

after the State’s follow-up inspection.51 Regional Director Brent Hamer, Director of
Human Resources Kristin Hilton, and Assistant Director of Human Resources
Natasha McGrath made the decision to terminate plaintiff’s employment.52 Plaintiff
49

See doc. no. 35-6 (Hamer Deposition), at 49 (explaining that plaintiff “was given an
opportunity and an action plan to correct findings from the first State audit.”).
50

Doc. no. 35-12 (Second Inspection Report), at ECF 2.

51

See doc. no. 35-2 (Plaintiff’s Deposition), at 185.

52

Doc. no. 35-7 (Defendant’s Answers to Interrogatories), ¶ 1.

14

received the following termination notice:
List of previous warnings and type(s) of corrective action(s):
07/18/2012 - Verbal discussion regarding State of Alabama
findings[.]
07/15/2012 - Final Warning (Policy Violation, Insubordination,
Work Quality & Productivity).
Summary of Unacceptable Behavior:
On 09/25/2012 a State of Alabama Methadone Authority
inspection revealed that Ms. Kimberly Haley[-Muhammad], Program
Director of Huntsville Metro Clinic had not addressed or corrected
violations noted during the 60 day provision license issued in May 2012.
Alabama State inspection violations found in May 2012:
1.

[Tuberculosis] Skin Test record[s] were missing for
employees.

2.

Pharmacy variance and incident reports not sent to State of
Alabama.

3.

[Newly-mandated patient assessments] incomplete.

4.

Lack of new counselors being oriented to their job
description/training.

5.

Lack of Administrative/Clinical supervision as a treatment
team.

6.

Treatment plans not individualized or completed within 24
hours.

7.

Patients admitted prior to completion of [newly-mandated
15

patient] assessments.
[8.]

Poor quality of clinical documentation.

[9.]

Treatment planning not an ongoing process in the patient’s
treatment.

[10.] Missing signatures on case notes and assessments.
After the May inspection when the State gave [Huntsville Metro]
a conditional license for non-compliance with state regulations, a written
list of items that needed to be corrected was provided. Mr. Brent Hamer
. . . discussed with Ms. Kimberly Haley[-Muhammad] this list of action
items and steps to correct them within the 60 day time frame. These
items were to be implemented immediately in order to bring the
Huntsville Metro Clinic into compliance based upon Alabama State
Methadone Authority violations found during the inspection.
As Program Director, Ms. Kimberly Haley[-Muhammad] is
responsible to ensure compliance with all local, state, federal, and
Colonial Management Group, LP rules, regulations, and policies. Also,
Ms. Haley[-Muhammad] is to provide administrative and clinical
supervision and direct and monitor all clinic staff in the performance of
their duties.
During the follow-up State inspection on 09/25/2012 it was
determined that a majority of the violations had not been corrected, nor
had any effort been made to bring the Huntsville Metro Clinic into full
compliance during the 60 day provisional time allowed.
Ms. Haley[-Muhammad’s] actions are a violation of [Colonial]
Policy and Procedures, Section 6, Zero Tolerance Policies, “Prohibited
Behavior,” #3 Inability, negligence, or unwillingness to perform
assigned work or maintain expected performance levels; poor
performance. #4 Insubordination, refusal to perform tasks assigned by
a supervisor; #6 Failure to adhere to [Colonial’s] policies or
procedures[.]
16

Despite the clear and explicit instructions provided by Mr. Brent
Hamer . . . Ms. Haley[-Muhammad] failed to properly perform those
responsibilities that are part of her job responsibilities resulting in an
additional extension of the conditional license to correct violations. Due
to Ms. Haley[-Muhammad’s] failure to adequately manage the
Huntsville Metro Treatment Center clinical staff and pharmacy
operations her employment will be separated immediately.
Doc. no. 35-13 (Termination Notice), at ECF 2–3 (alterations supplied). Plaintiff
received no severance pay.53
Following her termination, plaintiff lodged a complaint of discrimination with
Colonial, but Colonial took no action on that complaint.54
G.

Equal Employment Opportunity Commission Charge and Dismissal
Plaintiff filed a formal “Charge of Discrimination” with the Equal Employment

Opportunity Commission on October 18, 2012.55 The agency issued a “Dismissal and
Notice of Rights” on August 19th of the following year, stating that it had terminated
its investigation of her charge because it was unable to conclude that the information
obtained established violations of the civil rights statutes.56 That document notified
plaintiff of her right to file suit, and this action followed.
III. CLAIMS ABANDONED BY PLAINTIFF

53

Doc. no. 24 (Amended Complaint), ¶ 14.

54

Id. ¶ 15.

55

Doc. no. 24-1 (EEOC Charge).

56

Doc. no. 24-1 (Dismissal and Notice of Rights).

17

Plaintiff’s counsel acknowledged during oral argument that plaintiff had
abandoned her claim for a race-based hostile work environment, as well as any claim
for interference with her rights under the FMLA. Accordingly, summary judgment
is due to be granted in favor of defendant on those claims.
In addition, defendant’s counsel noted during oral argument that plaintiff’s
amended complaint could be read as asserting claims for a discriminatory failure to
promote, discriminatory discipline, and a discriminatory failure to train, but plaintiff
did not include any argument supporting such claims in the brief submitted in
opposition to summary judgment.

Significantly, however, plaintiff’s counsel

conceded during oral argument that plaintiff was not asserting such claims
independently. Instead, he stated that evidence that might support such claims was
included in the amended complaint and briefing merely to demonstrate Colonial’s
discriminatory motives in terminating plaintiff’s employment. Accordingly, to the
extent that plaintiff’s amended complaint can be read as asserting claims for a
discriminatory failure to promote, discriminatory discipline, and a discriminatory
failure to train, summary judgment is due to be granted in favor of defendant on such
claims.
IV. FMLA RETALIATION
Plaintiff claims that Colonial terminated her employment in retaliation for her
18

act of taking leave under the Family and Medical Leave Act of 1993 (“FMLA”).57
Under the FMLA, an eligible employee is entitled to as much as twelve weeks of
leave each year to care for a serious health condition of the employee, or the
employee’s child, spouse, or parent. See 29 U.S.C. § 2612(a)(1). Congress declared
it “unlawful for any employer to interfere with, restrain, or deny the exercise of[,] or
the attempt to exercise, any right provided under this subchapter [of the FMLA].” 29
U.S.C. § 2615(a)(1) (alterations supplied). In addition, employers are “prohibited
from discriminating against employees . . . who have used FMLA leave.” 29 C.F.R.
§ 825.220(c).
To prove that an employer retaliated against an employee who exercised her
statutory right to FMLA leave, the plaintiff must show that her employer intentionally
discriminated against her for exercising an FMLA right. Martin v. Brevard County
Public Schools, 543 F.3d 1261, 1267 (11th Cir. 2008). When, as here, there is no
direct evidence of a retaliatory animus, courts employ the burden-shifting analytical
framework initially articulated in the context of a claim premised upon Title VII of
the Civil Rights Act of 1964 by the Supreme Court’s opinion in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), as subsequently elaborated in Texas
Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). In the first stage
57

Doc. no. 24 (Amended Complaint), ¶ 26.

19

of that analysis, the plaintiff must establish a prima facie case of retaliation by
demonstrating that: she engaged in activity protected by the FMLA; she suffered an
adverse employment action; and there is a causal connection between the protected
activity and the adverse employment action. See, e.g., Hurlbert v. St. Mary’s Health
Care System, Inc., 439 F.3d 1286, 1297 (11th Cir. 2006). If the plaintiff does so, the
employer then must offer a legitimate, non-retaliatory reason for the adverse
employment action. Cf. Holified v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997). If
the employer does so, the plaintiff then bears the ultimate burden of demonstrating
that the employer’s stated reason is merely a pretextual excuse for retaliation. Id.
The plaintiff in the present action satisfies the first two elements of the prima
facie case because she took FMLA leave and was terminated. Even so, defendant
contends that there is no causal connection between the two events.58 Plaintiff was
terminated just two months after the end of her FMLA leave, however, and such a
“close temporal proximity between the two . . . is more than sufficient to create a
genuine issue of material fact of causal connection.” Martin, 543 F.3d at 1268.
Accordingly, this court concludes that plaintiff has established a prima facie case of
FMLA retaliation.
Colonial articulated two primary reasons for its decision to terminate plaintiff’s
58

Doc. no. 34 (Summary Judgment Brief), at 34.

20

employment: i.e., her failure to ensure that the Huntsville Metro methadone treatment
center passed the Alabama Department of Mental Health’s follow-up inspection; and
Huntsville Metro’s failure of the DEA audit.59 Accordingly, Colonial met its burden
of stating legitimate, non-discriminatory reasons for terminating plaintiff.
In order to show that an employer’s stated reasons are merely a pretext for
discrimination, a plaintiff “must demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could find them unworthy
of credence.” Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1265 (11th
Cir. 2010) (internal quotation marks omitted); see also, e.g., Kragor v. Takeda
Pharmaceuticals America, Inc., 702 F.3d 1304, 1308 (11th Cir. 2012); Combs v.
Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997); Cooper-Houston v.
Southern Railway Co., 37 F.3d 603, 605 (11th Cir. 1994).
Additionally, the Eleventh Circuit held in an en banc opinion that, in order to
survive summary judgment, an employee must show that each of the employer’s
stated reasons for the adverse employment action is pretextual. Chapman v. AI
Transport, 229 F.3d 1012, 1024–25 (11th Cir. 2000) (en banc); see also id. at 1049
(Birch, J., dissenting) (“As a general rule, I agree with the [majority’s holding] that,
59

Id.

21

where an employer offers multiple legitimate, nondiscriminatory reasons for its
challenged action, the employee must proffer evidence that shows pretext as to each
of the proffered reasons.”) (alteration supplied, emphasis in original).
Plaintiff asserted that Colonial’s first stated reason for her termination — i.e.,
her failure to ensure that Huntsville Metro passed the follow-up inspection — is
pretextual because two white Program Directors in a Minnesota clinic were not
disciplined after their treatment center failed a state inspection and had its license
revoked.60 Even so, during oral argument, plaintiff’s counsel acknowledged a lack
of evidence establishing that the Minnesota Program Directors, or the circumstances
of their misconduct, were comparable to plaintiff. Absent such evidence, the court
cannot conclude that Colonial’s decision not to discipline the two alleged
comparators is evidence of pretext. See Rioux v. City of Atlanta, 520 F.3d 1269, 1280
(11th Cir. 2008) (holding that a plaintiff can demonstrate pretext using comparator
evidence only if the plaintiff and the comparator “are involved in or accused of the
same or similar conduct and are disciplined in different ways”).
Plaintiff also has failed to demonstrate pretext as to the second reason for
discharge stated by Colonial: i.e., Huntsville Metro’s failure of the DEA audit.
Plaintiff contends that this reason is merely a pretext for discrimination because
60

Doc. no. 35-2 (Plaintiff’s Deposition), at 150–51.

22

Colonial did not discipline the nurse whose improper handling of paperwork resulted
in the regulatory violations found by the DEA.61 The Huntsville Metro nurse is not
a proper comparator, however, because plaintiff was her supervisor. It is completely
within the purview of the employer to decide who among its employees within a
chain of command should be held responsible for a failure. Cf. Wallace v. SMC
Pneumatics, Inc., 103 F.3d 1394, 1399 (7th Cir. 1997) (holding that “a superior
officer’s desire to shift blame to a hapless subordinate” is “non-actionable” under
Title VII) (cited favorably for that holding by Alvarez, 610 F.3d at 1267). To find
otherwise would be to effectively force employers to either discipline all employees
within a chain of command, or none at all, or face liability for discrimination or
retaliation. See Chapman, 229 F.3d at 1030 (warning courts not to reexamine an
employer’s business decisions).
Plaintiff next contends that she was “not present to address the DEA audit”
because she was on FMLA leave.62 Although plaintiff did not elaborate further, she
appears to suggest that she should not have been held responsible for the results of
the audit because she was not present when it occurred. The court notes, however,
that plaintiff was on FMLA leave for only approximately one third of the period

61
62

Doc. no. 37 (Plaintiff’s Response), at 12.
Id.

23

included in the audit.63 Additionally, it appears that plaintiff is merely questioning
the fairness of Colonial’s decision to hold her responsible for Huntsville Metro’s
failure of the DEA audit. As the Eleventh Circuit has emphatically repeated,
however, “federal courts do not sit as a super-personnel department that reexamines
an entity’s business decisions. No matter how medieval a firm’s practices, no matter
how high-handed its decisional process, no matter how mistaken the firm’s
managers,” the courts do not interfere. Elrod v. Sears, Roebuck and Co., 939 F.2d
1466, 1470 (11th Cir. 1991); see also Alvarez, 610 F.3d at 1266 (“The question is
whether [plaintiff’s] employers were dissatisfied with her for these or other
non-discriminatory reasons, even if mistakenly or unfairly so, or instead merely used
those complaints about [plaintiff] as cover for discriminating against her.”)
(alterations and emphasis supplied)
Regional Director Brent Hamer testified that only plaintiff was disciplined for
Huntsville Metro’s failure of the DEA audit because “the Program Director is
responsible for all recordkeeping . . . [a]nd training of the medical personnel.”64
Plaintiff may argue that she was not solely responsible for Huntsville Metro’s failure
of the DEA audit, especially considering she was on leave at the time it was

63

See supra Part II.E.

64

Doc. no. 35-6 (Hamer Deposition), at 59 (alteration supplied).

24

conducted. She also may argue that other employees were more deserving of
discipline than she. Nevertheless, she has not cast any doubt on whether Colonial “in
good faith believed” that plaintiff, as Huntsville Metro’s only Program Director, was
ultimately responsible for record-keeping and training of medical personnel at the
treatment center. Id. (emphasis in original).
Accordingly, summary judgment is due to be entered in favor of defendant on
plaintiff’s FMLA retaliation claim.
V. DENIAL OF SEVERANCE PAY
Plaintiff contends that Colonial’s refusal to pay her a severance allowance was
discriminatory, and in violation of Title VII and § 1981.65 Applying the burdenshifting analytical framework articulated in McDonnell Douglas and Burdine to
evaluate plaintiff’s circumstantial evidence, this court first looks to whether the
plaintiff has established a prima facie case of discrimination. Plaintiff has pointed
to four comparators to establish her prima facie case: Steve Flora, Joshua Howell,
Anna Conyers, and Karen Pinion-Moore.66 Howell, Conyers, and Pinion-Moore were
not Program Directors when they were terminated, however, and are not suitable

65

Doc. no. 24 (Amended Complaint), ¶ 14.

66

Id.

25

comparators.67 See, e.g., Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)
(holding that comparators must be “similarly situated in all relevant respects”)
(emphasis supplied). Defendant contends that Flora also is not a suitable comparator
because the circumstances of his termination were not similar to those of plaintiff.68
Plaintiff offers no rebuttal to that contention. This court concludes Flora is not
sufficiently similarly-situated to plaintiff to establish a prima facie case of
discrimination with regard to severance pay. See id.
Accordingly, summary judgment is due to be entered in favor of Colonial on
Plaintiff’s denial of severance claim.
VI. TERMINATION BECAUSE OF PLAINTIFF’S RACE
Plaintiff alleges that defendant terminated her employment because of her race
and skin color, in violation of Title VII and § 1981.69 Again, when there is no direct
evidence of discrimination, courts employ the burden-shifting analytical framework
articulated in McDonnell Douglas and Burdine to evaluate a plaintiff’s circumstantial
evidence of discrimination.70 Once the plaintiff has established a prima facie case of
67

Doc. no. 34 (Summary Judgment Brief), at 18–19, ¶¶ 89–91; doc. no. 37 (Plaintiff’s
Response), at 4–5.
68

Doc. no. 34 (Summary Judgment Brief), at 26–27. See also supra Part II.A.

69

Doc. no. 24 (Amended Complaint), ¶ 19.

70

Plaintiff testified in her deposition that Colonial has a policy which requires management
of each of Colonial’s treatment centers to reflect the racial composition of its patients, and that Susan
Case told plaintiff that it was against Colonial policy to have a management team composed solely

26

discrimination, the employer must come forward with a legitimate, nondiscriminatory reason for the adverse employment action. Holified, 115 F.3d at 1566.
If the employer does so, the plaintiff then bears the burden of demonstrating that the
employer’s stated reason is merely a pretextual excuse for discrimination. Id.
The court need not decide whether plaintiff has established a prima facie case
of discrimination, however, because it already has concluded that plaintiff has not
shown that both of Colonial’s stated reasons for terminating her employment were
pretextual. Accordingly, summary judgment is due to be entered in favor of Colonial
on plaintiff’s discriminatory termination claim.
VII. RACE-BASED WAGE DISCRIMINATION
Courts also employ the burden-shifting analytical framework articulated in
McDonnell Douglas and Burdine to evaluate a plaintiff’s circumstantial evidence of
wage discrimination. See, e.g., Cooper v. Southern Co., 390 F.3d 695, 734–35 (11th

of African-Americans. See supra Part II.C.2. Plaintiff did not contend in her brief that either the
policy or Case’s comment was direct evidence of discrimination. See doc. no. 37 (Plaintiff’s
Response). Even so, the court is compelled to note that evidence must meet a “rigorous standard”
before it can be considered direct evidence of discrimination. Damon v. Fleming Supermarkets of
Florida, Inc., 196 F.3d 1354, 1359 (11th Cir. 1999). “As a result, only the most blatant remarks,
whose intent could be nothing other than to discriminate on the basis of [race] will constitute direct
evidence of discrimination.” Id. (alteration supplied). Plaintiff’s evidence does not meet this
rigorous standard. See Burrell v. Board of Trustees of Georgia Military College, 125 F.3d 1390,
1393–94 (11th Cir. 1997) (holding that employer’s statement that “too many women filled” a certain
position was not direct evidence of the employer’s discriminatory motive in terminating female
plaintiff).

27

Cir. 2004), overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454,
457 (2006). To establish a prima facie case of race-based wage discrimination, a
plaintiff must show that she belongs to a protected class; similarly-situated
comparators outside her protected class received higher wages; and, she was qualified
to receive the higher wages. Id.
Plaintiff has identified three white Program Directors employed by Colonial
who received higher pay than she: Steve Flora, Terry Mitchell, and Brent Hamer.71
The court will assume, for the sake of discussion, that plaintiff has established a
prima facie case of wage discrimination.
Colonial contends that it paid Steve Flora a higher salary because he held the
dual position of Regional Director/Assistant Director of Compliance prior to
becoming the Program Director at Huntsville Metro, and Colonial “maintained him
at the same pay rate” when he became a Program Director.72 Colonial also contends
that it offered Mitchell a higher salary as a recruitment strategy after Mitchell initially
refused the position of Program Director.73 The company further contends that Hamer
was paid a higher salary “because of his multiple years of experience in the

71

Doc. no. 24 (Amended Complaint).

72

Doc. no. 34 (Summary Judgment Brief), at 6, ¶¶ 23–24.

73

Id. at 6, ¶ 27–28.

28

position.”74 Colonial met its burden of articulating legitimate, non-discriminatory
reasons for paying Flora, Mitchell, and Hamer more than plaintiff.
Plaintiff’s brief contained no pretext arguments concerning Colonial’s stated
reasons for paying Flora, Mitchell, and Hamer higher salaries.75 Even so, she offered
some pretext arguments in her deposition testimony:
Q.

. . . [W]hy is it that you think you were paid less?

A.
Because of the credentials and the lack of experience. I
had management experience as a Treatment Services Coordinator, and
I have a Master’s degree, which is a requirement, a state requirement to
have a Master’s degree to be a Program Director in the State of
Alabama, with three years [of post-graduate coursework].
Q.

And are you saying [Flora and Hamer] didn’t have that?

A.

No, they did not.

Doc. no. 35-2 (Plaintiff’s Deposition), at 93–94 (alterations supplied). Plaintiff also
testified in her deposition that when she asked to be paid the same salary Flora was
paid, Susan Case responded, “I cannot give you a 21 percent raise.”76
Plaintiff’s pretext arguments fail to “meet [defendants’] reason[s] head on and
rebut [them].” Chapman, 229 F.3d at 1030 (alterations supplied). Plaintiff does not
address Flora’s former positions at Colonial, Mitchell’s recruitment process, or
74

Id. at 25.

75

See doc. no. 37 (Plaintiff’s Response).

76

Doc. no. 35-2 (Plaintiff’s Deposition), at 90.

29

Hamer’s years of experience as a Program Director. Therefore, she cannot show that
those reasons are merely a pretext for discrimination.
Accordingly, summary judgment is due to be entered in favor of Colonial on
plaintiff’s wage discrimination claims.
VIII. CONCLUSION AND ORDERS
Based upon the foregoing discussion, it is ORDERED that the motion for
summary judgment filed by defendant, Colonial Management Group, LP, is
GRANTED, and all claims asserted herein by Kimberly Haley-Muhammad are
DISMISSED with prejudice. Costs are taxed to plaintiff. The Clerk is directed to
close this file.
DONE and ORDERED this 16th day of March, 2015.

______________________________
United States District Judge

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