Simmons v. Indian Rivers Mental Health Center
Filing
51
MEMORANDUM OPINION. Signed by Chief Judge Sharon Lovelace Blackburn on 9/30/2012. (KAM, )
FILED
2012 Sep-30 PM 03:40
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
TERRI FRANKS,
Plaintiff,
v.
INDIAN RIVERS
HEALTH CENTER,
MENTAL
Defendant.
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CASE NO. 7:08-CV-1035-SLB
MEMORANDUM OPINION
This case is currently before the court on plaintiff Terri Franks’s (“Franks”) Motion
in Limine to Exclude Exhibits Summarizing Unproduced Evidence, (doc. 31), defendant
Indian Rivers Mental Health Center’s (“Indian Rivers”) Motion to Strike Plaintiff’s
Affidavit, (doc. 42), and defendant’s Motion for Summary Judgment, (doc. 34). Upon
consideration of the record, the submissions of the parties, the relevant law, and arguments
of counsel, the court is of the opinion that Franks’s Motion in Limine, (doc. 31), is due to be
granted, Indian Rivers’ Motion to Strike Plaintiff’s Affidavit, (doc. 42), is due to be granted
in part and denied in part, and Indian Rivers’ Motion for Summary Judgment, (doc. 34), is
due to be granted in part and denied in part.
I. SUMMARY JUDGMENT STANDARD
Pursuant to Fed. R. Civ. P. 56(c), summary judgment is appropriate when the record
shows “that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party bears the
initial burden of showing no genuine issue of material fact and that it is entitled to judgment
as a matter of law. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); see
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once the moving party has met its
burden, Rule 56(e) requires the non-moving party to go beyond the pleadings and show that
there is a genuine issue for trial. Fed. R. Civ. P. 56(e); see Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
In deciding a motion for summary judgment, the court’s function is not to “weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine
issue for trial.” Id. at 249. Credibility determinations, the weighing of evidence, and the
drawing of inferences from the facts are left to the jury, and, therefore, evidence favoring the
non-moving party is to be believed and all justifiable inferences are to be drawn in its favor.
See id. at 255. Nevertheless, the non-moving party “need not be given the benefit of every
inference but only of every reasonable inference.” Graham v. State Farm Mut. Ins. Co., 193
F.3d 1274, 1282 (11th Cir. 1999) (citing Brown v. City of Clewiston, 848 F.2d 1534, 1540
n.12 (11th Cir. 1988)) (emphasis added).
II. FACTUAL AND PROCEDURAL HISTORY
Franks has sued her former employer, Indian Rivers, alleging Family and Medical
Leave Act (“FMLA”), 29 U.S.C. §§ 2601-2654, HIPPA / invasion of privacy, negligent
hiring, training, supervision, and retention, and intentional infliction of emotional distress
causes of action, (see generally doc. 1),1 arising out of actions taken by Indian Rivers before
and during her FMLA leave and the termination of her employment by Indian Rivers
immediately following her return from FMLA leave. (See generally id.)2
Indian Rivers is a non-profit, quasi-governmental agency that provides mental health
and mental retardation services for individuals in Tuscaloosa, Bibb, and Pickens Counties,
Alabama. (IRB, Ex. B at 19 & 21.) Franks, who has a Master’s Degree in community
counseling, a Bachelor’s Degree in psychology, and is a licensed professional counselor, was
1
The negligent hiring, training, supervision, and retention, and intentional infliction of
emotional distress causes of action set forth in Counts Three and Four of the Complaint,
respectively, are due to be dismissed pursuant to Franks’s request, (see doc. 38 at 34).
2
The facts are taken from the briefs, (docs. 35, 39, & 43), and evidentiary submissions,
(Indian Rivers’ Brief In Supp. [hereinafter “IRB”], Exs. A-H & Franks’s Response in Opp.
[hereinafter “FRO”], Exs. 1-12), filed in support of, and opposition to, Indian Rivers Motion for
Summary Judgment. Exhibit A to the Scheduling Order states that “[a]ll material facts set forth
in the statement required of the moving party will be deemed to be admitted for summary
judgment purposes unless controverted by the response of the party opposing summary
judgment.” (Doc. 13-1 at 4 (emphasis omitted).) Consequently, the facts offered by Indian
Rivers and not controverted by Franks, and likewise, the facts offered by Franks and not
controverted by Indian Rivers, are deemed admitted. As required when determining a motion for
summary judgment, the court has construed the facts in the light most favorable to Franks, the
nonmovant. Although the evidence in conflict on issues of fact is set forth herein, all disputed
facts are ultimately resolved in Franks’s favor, and all reasonable inferences arising from those
facts are drawn in her favor. See Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89
(1990); Zaben v. Air Products & Chemicals, Inc., 129 F.3d 1453, 1455 (11th Cir. 1997).
3
hired by Indian Rivers in 1993. (FRO, Ex. 1 ¶ 2.) Franks worked in many areas of Indian
Rivers from 1993-1997. In 1997, she became the Adult Outpatient Program (the “AOP”)
Coordinator at Indian Rivers. (Id.) In 2006, Franks applied for the newly created position
of AOP Manager and was deemed an outstanding candidate. (FRO, Ex. 10 at exs. 13, 14,
& 15.) In March of 2006, Franks was promoted to AOP Manager. (FRO, Ex. 1 ¶ 2; doc. 1
¶ 12.) As the AOP Manager, one of Franks’s main responsibilities was overseeing Treatment
Plan Reviews (“TPR”) for Indian Rivers’ patients. (IRB, Ex. A at 43.) Franks, as Manager
of the AOP, was also responsible for intake assessment, probate matters, the Crisis Response
Team and Substance Abuse Services, group and individual therapy, crisis intervention,
mental retardation services, and the Case Management Program. (IRB, Ex. A at 37-48 & 5456; FRO, Ex. 1 ¶ 3.)
The TPR is a process established by the State Department of Mental Health and by
Medicaid whereby a certified reviewer reviews a treatment plan on a set schedule. Medicaid
and residential patients are reviewed every 90 days, while self pay and private insurance
patients are reviewed once a year. (IRB, Ex. A at 43, 56-57, 59-60, & 93.) Only a certified
reviewer with proper credentials may sign TPRs. (IRB, Ex. A at 55 & 68; IRB, Ex. C at 5657.) However, the primary reviewer of the treatment plan need not be licensed and could be
the therapist treating the patient or the person overseeing their treatment. The secondary
reviewer that checks the primary reviewers work is required to be a licensed professional.
(IRB, Ex. A at 55 & 67-68.) To complete a TPR, the reviewer must pull the patient’s chart
4
or file, review the treatment plan and notes or other documentation in the record to determine
whether the services had been provided and to determine the patient’s response to the
services, whether the patient had been compliant, whether the patient had made progress, and
whether that level of service should be continued. (IRB, Ex. A at 44-46 & 57-58.) A TPR
aims to certify that (1) the treatment set out in a patient’s treatment plan is medically
necessary; (2) the goals, objectives, and interventions remain appropriate; (3) the
documentation in the file accurately reflects the treatment being provided; and (4) that
continued treatment is recommended. (IRB, Ex. A at 52-58, 91, & ex. 14.)
Franks is familiar with Medicaid guidelines and TPRs. (IRB, Ex. A at 47.) She knew
the importance of proper and timely documentation in TPRs. (IRB, Ex. A at 76-90; see IRB,
Ex. A at ex. 2.) She led a review of the forms process, developed the TPR form used by
Indian Rivers, and trained other staff members on treatment plans and TPRs. (IRB, Ex. A
at 44-46 & 58.) Franks reviewed the TPRs in the AOP because she was a licensed
professional counselor. (IRB, Ex. A at 55-56 & 92.) For the TPRs she reviewed, Franks was
responsible for making sure that everything contained in the TPR was correct and properly
documented and in compliance with all federal and state requirements. (IRB, Ex. A at 68.)
Franks, however, had no control over the employees in the file room and those employees’
ability to file all medical records timely and correctly. Specifically, notes and other
information necessary to complete a TPR and make the required determination were
frequently missing from the file, misfiled, or still in the doctor’s office. (IRB, Ex. A at 104-
5
07, 117-18, 133-38, 143, 151, 164, 170-72, 180-81, 190-91, 194-98, 208, & 217; IRB, Ex.
C at 181-82; FRO, Ex. 10 at ex. 41.) Consequently, the information available to the TPR
reviewer was often compromised. (IRB, Ex. A at 104-07, 117-18, 133-38, 143, 151, 164,
170-72, 180-81, 190-91, 194-98, 208, & 217; IRB, Ex. B at 243-44; IRB, Ex. C at 52, 21719, & 188-90; FRO, Ex. 9 at 39.)
On March 20, 2006, shortly after Franks was promoted to the AOP Manager position,
Connie Robbins (“Robbins”), the Clinical Director at Indian Rivers, asked Franks to create
a system to monitor quality issues for the AOP, including record reviews, which
encompassed TPRs. (IRB, Ex. A at 102-03 & ex. 6; IRB, Ex. E.) Robbins told Franks that
Franks needed to develop a system for reviewing TPRs with due dates to ensure that Indian
Rivers was in compliance with all federal and state requirements. (IRB, Ex. E.) Indian
Rivers contends that Franks initiated a system to review TPRs and implemented that system
in May and June of 2006, but did not follow through when the reviews were due to be
performed in August and September of 2006. (Doc. 34 at 4 (citing IRB, Ex. E).) Indian
Rivers also contends that because Franks was behind with her TPRs and had not yet
implemented an effective monitoring system, Robbins met with Plaintiff and addressed this
again in her performance evaluation in November or December of 2006. (Doc. 34 at 4
(citing IRB, Ex. A at 111 & 113; IRB, Ex. C at 75; IRB, Ex. E).) However, there is evidence
that Franks did follow through with the TPR monitoring system. (FRO, Ex. 10 at ex. 41;
IRB, Ex. A at 105-09; FRO, Ex. 4 ¶ 3.) After Franks was promoted to AOP Manager and
6
worked under Robbins for a year, Robbins scored Franks higher than the year before on her
yearly evaluation in November 2006. (FRO, Ex. 10 at ex. 12; IRB, Ex. C at 210.) Robbins
did not record any issue with Franks TPR performance on Franks’s yearly evaluation in
November 2006. (FRO, Ex. 10 at ex. 12.) In March 2007, Robbins openly praised Franks,
Brittany Blackston, and Lisa Geist for their work in implementing an effective TPR system.
(FRO, Ex. 4 ¶ 3.)
In October of 2006, Franks experienced medical problems as a result of two herniated
discs in her neck. (Doc. 39-1 ¶ 4; IRB, Ex. A at 213.) Franks was having difficulty
functioning due to her neck problems. (Doc. 39-1 ¶ 4; IRB, Ex. A at 213.) Franks informed
Robbins that she needed to have surgery on her neck within the next few months. (Doc. 39-1
¶ 4; IRB, Ex. A at 213.) Robbins became openly and obviously panicked. (Doc. 39-1 ¶ 4.)
Robbins told Franks that there was a lot of work to do and that Indian Rivers could not afford
to have Franks off work until after an audit by the Alabama Department of Mental Health
and Mental Retardation. (Id.) Franks told Robbins that she had put the surgery off for five
years and would put off going into the hospital for as long as she could, but that she was in
pain and was having difficulty functioning. (Id.; IRB, Ex. A at 213.)
After Franks informed Robbins about the FMLA leave she needed to take in October
of 2006, Robbins began having problems with Franks’s performance and began increasing
her responsibilities and assigning her an inordinate amount of work to complete. (Id. ¶ 5.)
For instance, before Franks told Robbins of her need for surgery, Franks was responsible for
7
conducting eight hundred to nine hundred TPRs for her department; thereafter, Robbins
assigned Franks all of Indian Rivers’ TPRs, which was approximately five thousand in
January 2007. (Id.) In addition, Franks was seeing eight to ten patients in therapy a day.
(Id.) Franks was also the primary therapist at Indian Rivers’ Pickens County Office; Indian
Rivers did not fill her previous position when she was promoted to AOP manager in March
of 2006. (Id.) Franks was also responsible for training Indian Rivers’ entire staff on a new
treatment model it was developing. (Id.) In that capacity, Franks was charged with training
all staff on how to write clinical notes to obtain proper reimbursement for medically
necessary services, developing all of the new computer generated treatment forms, placing
them on the computers in the entire center, and training new staff in how to use the computer
generated forms. (Id.)
In November or December 2006, Robbins prepared a typed list of all TPRs that she
gave to Franks to be her documentation system on conducting TPRs for the months of
January, February, and March 2007. (IRB, Ex. A at 113-18; IRB, Ex. C at 212 & 214.)
Robbins instructed Franks to use the list correctly, completing TPRs every ninety days for
clients, deleting clients when their cases were closed, and adding new clients to the list.
(IRB, Ex. C at 214-216.) This list, however, was incomplete and needed constant updating.
(IRB, Ex. A at 122, 143-45, & 149-51; IRB, Ex. C at 217-18; FRO, Ex. 10 at ex. 42; FRO,
Ex. 1 ¶ 14.) Franks had her staff work on a more complete and comprehensive list after a
full review of all patient files had been located. (IRB, Ex. A at 105-08, 151, & 198; FRO,
8
Exs. 1-3.) On December 11, 2006, Robbins gave Franks a new priority list during a
managers’ meeting, which identified areas in which Franks needed to work. The priority list
set Franks’s goals for developing a plan to complete TPRs and to insure follow-through of
the TPR system then in place for the year 2007. (IRB, Ex. A at 115-18; IRB, Ex. A at exs.
7 & 9; IRB, Ex. C at 74-75; IRB, Ex. E.)
In March and April of 2007, Robbins learned from the Medical Records Coordinator
that numerous TPRs were in the Medical Records Department waiting to be signed by
Franks. (IRB, Ex. E.) Thereafter, on April 4, 2007, Robbins met with Franks and gave her
a memorandum (the “Robbins Memorandum”), which outlined problems with Franks’s
performance. (IRB, Ex. A at 124 -41; IRB, Ex. A at ex. 11.) The Robbins Memo states, in
relevant in part:
For the second time now in less than a year, the updating of AOP
TPRs has became a crisis. Last summer this occurred because there was no
follow-through with the system you had established utilizing Task Needs.
This failure not only resulted in a payback of greater than $40,000,3 but it
also meant a huge amount of time was required of numerous others to
remedy the situation. My greatest concern about that incident is that I was
the one who identified the problem and initiated the correction. Surely you
recognized the significance of this based on the emphasis I placed on
correcting it, making it a priority for several months until there was some
assurance that the system was re-established.
Now, again, the whole process has broken down. Rather than taking
what had been set up so that TPRs could be managed in an organized
manner, you again are in a crisis situation, requiring multiple others to spend
their time trying to get a grasp on this problem. This is unacceptable.
3
Indian Rivers omitted this sentence from the version of the April 4, 2007 memorandum
set forth in its Statement of Undisputed facts. (See doc. 34 at 5-6.)
9
While the above identifies a very huge problem, it is just one example
of a bigger concern. I believe that you know what has to be done to manage
the AOP. However, what I see is that you are unable to monitor and maintain
working systems within your programs. Instead, you stay in a pattern of
crisis response. This has been evident in situations with Misha and even with
SA. Rather than staying on top of the issues in each program, they are not
monitored closely enough until they move into a crisis status. I suspect a
similar thing happened with Pickens County. Once you respond to this crisis,
you are then unable to follow through on commitments and responsibilities.
On many occasions you have promised completion of tasks, but been unable
to do so due to these crisis distractions. This has severely impaired your
credibility with me and others.
It is imperative at this time that you determine what the priorities are
within your programs. It will be beneficial for you (and required by me) to
outline these priorities, identifying the goals, the steps necessary to
accomplish, a timeline of completion, and the system you will implement to
monitor and evaluate. You are going to have to make some immediate
changes in your role as manager. You are to be the person directing others to
perform in a consistent, organized manner. You can’t do this unless you are
able to complete your assignments in such a manner.
(FRO, Ex. 10 at ex. 40; IRB, Ex. A at ex. 11.)
Robbins wrote the Robbins Memorandum after receiving a separate memorandum
dated March 30, 2007, from an unknown source, which outlined problems with Franks’s
performance as the AOP Manager. (FRO, Ex. 10, ex. 43 at bates 1129.) Robbins could not
recall who gave her the memorandum dated March 30, 2007. (IRB, Ex. C at 141-44.) The
Robbins Memorandum mirrored the memorandum from the unknown source dated March
30, 2007, in several respects. As noted, the Robbins Memorandum attributed the cause of
a more than forty thousand dollar ($40,000.00) Medicaid payback to Franks. Rita Harless
(“Harless”), Indian Rivers’ Human Resources Director, also testified that she was aware of
10
the alleged Medicaid payback caused by Franks. Harless testified that this payback impacted
the budget of Indian Rivers, including raises to employees. (IRB, Ex. D at 165.) Jim Moore
(“Moore”), Indian Rivers’ Executive Director, testified that “no one single issue ... has had
that much of an impact on ... raises or bonuses.” (IRB, Ex. C at 247-48.) Nothing in the
record confirms the existence of a payback to Medicaid of ($40,000.00) attributable to
Franks. At his deposition Moore produced documentation that Indian Rivers paid back
twelve thousand eight hundred twenty dollars and seventy cents ($12,820.70) to Medicaid.
(IRB, Ex. B at 74-76.) Robbins testified that she came up with the forty thousand dollar
($40,000.00) figure based on an estimate she received from Tammy Blackerby and the billing
office at Indian Rivers. (IRB, Ex. C at 37-38.) However, neither the Chief Financial Officer,
Betty Jones (“Jones”), nor the Accountant, Tammy Blackerby (“Blackerby”), had any
knowledge of the alleged Medicaid payback. (FRO, Ex. 8 at 75-80; FRO, Ex. 7 at 17-20 &
26-27.) Blackerby testified that she never provided Moore or Robbins with any amount for
Medicaid pay backs and was never asked to do so. (FRO, Ex. 8 at 75-76, 79-80, & 83-84.)
Similarly, Jones testified that she was not aware of any Medicaid payback and had never
provided any amount to Moore or Robbins. (FRO, Ex. 7 at 18-19 & 54-56.) Indian Rivers
did not produce any documentary evidence of any amount being paid back to Medicaid due
to Franks or any error caused by her. (See docs. 34 & 43.) Nonetheless, Robbins represented
to the personnel board that such a payback was made when Franks filed a grievance to get
her job back following termination. (FRO, Ex. 10 at ex. 52 at bates 0357 & exs. 53-55.)
11
On April 11, 2007, Franks responded to the Robbins Memorandum. Indian Rivers
contends that in the response memorandum of April 11, 2007, Franks admitted that she
had not implemented an effective system for ensuring timely TPR completion. Franks
response memorandum, however, states in part:
After receiving your memo about concerns you have about my performance
as a manager, I took a few days to reflect on your current position on how
things are going in the programs for which I am responsible.
The first problem I want to address is the treatment plan reviews. You and I
covered this issue in my performance appraisal. At the time of the appraisal,
nothing was mentioned of the $40,000.00 for which you have named me as
the sole reason this occurred. I have already taken responsibility for trying
to complete all of the treatment plan reviews on my own last summer in
previous discussions. As far as discovering the problem, it was a team effort
in the Adult Outpatient Unit. Not long after Jan Cobb left, we all began to
discover that Jan had missed several reviews through human error. In
addition, we realized that several of our clients had Medicaid that AR had
failed to communicate to us. Simply put, we have a broken system on many
levels. Outside of the Medicaid reviews, we have our yearly reviews. I have
tried to get those done on my own but have not had time. I have been able
to utilize Brittani and Lisa to review records and close cases. They have
been a big help to all of us. They have reviewed nearly every record at the
VA and at Pickens County with the exception of a few charts that cannot be
located. I had expressed my concern about these yearly reviews several
times; however, Medicaid charts have been the only priority. They may
have gotten a little bit a ahead and gotten the list out of order; however, we
now have the most comprehensive list of cases, their payer sources with
actual clients than ever before. I for one am grateful for that amazing
accomplishment especially with our site review coming up.
In terms of my operating in a ‘crisis response’ mode each day, the adult
program at the VA is for the most part, the outpatient emergency
department for the mentally ill. Our front desk staff is essentially our triage
staff. To make matters worse, we are down to one full time doctor, one part
time doctor who threatens to quit almost every time he is here, and one
doctor I am praying will continue in the counties. In short, when we have to
12
worry each day about how to get medicine to our clients because we may or
may not have a doctor, we are very much in a crisis.
As far as the other issues you mentioned, i.e. Misha, Pickens, and SA, I am
not as clear about why you are not happy. I did not have control over Misha
breaking a Federal law and breeching ethical guidelines. That was clearly a
decision she made on her own. I did not have control over hiring a
convicted felon and moved to terminate him as soon as I saw that he was
acting in a way that was unethical and that placed the agency at risk.
Additionally, it is my understanding that Dr. Donahue is very happy with
how things are going in Pickens County. It would be helpful for you to
explain your concerns about Pickens County in more detail. It is also my
understanding that things are going well in Substance Abuse and it would
be helpful for you to explain your concerns about that program as well.
...
Treatment Plan Reviews
You recently explained that the Medicaid report is run twice per month. I
will expect a copy of these reports twice each month beginning in May. I
will not be held responsible for Medicaid paybacks based on TPRs if it is
due to someone getting that benefit and I am simply not told. I will work
with Angela and Andrea to establish timelines for new intakes and their
TPR dates. I will complete them by the end of each month when they are
due. ... You will be given a list of the TPRs given to others to complete as
well as those for which I will be responsible. Jane and I can work to put it
on the K drive for future reference. ...
(FRO, Ex. 10 at ex. 41; IRB, Ex. A at ex. 12.)
On April 15, 2007, four days after Franks wrote the above response memorandum,
Franks called Robbins on her cell phone, office phone, and home phone to inform
Robbins of an Emergency Room visit that day and that Franks would have to go to her
doctor the next day, Monday, April 16, 2007. (Doc. 39-1 ¶ 6; FRO, Ex. 10, ex. 43 at
bates 1122.) The same day, after these phone calls from Franks, Robbins left a message
13
on Franks’s home answering machine indicating that she would need to meet with Franks
the next day, April 16, 2007. (FRO, Ex. 1 ¶ 6; FRO, Ex. 1-B; FRO, Ex. 10, ex. 43 at
bates 1122; IRB, Ex. C at 149-50.) This meeting had not been scheduled before this time.
(Doc. 39-1 ¶ 6.) On Monday, April 16, 2007, after attending her doctor’s appointment,
Franks went directly to Indian Rivers to inform them of her physical condition and
request leave pursuant to the FMLA. (Doc. 1 ¶ 18.) Franks’s request for FMLA leave
was granted.
During the first few days of Franks’s leave, Indian Rivers placed a number of
telephone calls to Franks. (See, e.g., FRO, Ex. 10 at ex. 28.) Franks returned a number of
the phone calls from Indian Rivers throughout her leave. (Id.) Indian Rivers contends that
at no time did it call Franks to request that Franks come to work or to perform any work, and
that Indian Rivers’ employees were merely calling Franks to ask for work and FMLA leave
related information. (Doc. 34 at 10 (citing IRB, Ex. A at 220-21; IRB, Ex. C at 166.))
Franks, however, contends that the calls were about a crisis phone for an on-call that she had
along with other employees, the location of files, work she needed to complete, and employee
evaluations she needed to do immediately. (Doc. 38 at 7-8 (citing FRO, Ex. 1 ¶ 7; see FRO,
Ex. 1-B).) On April 19, 2007, Franks wrote a memo to Robbins summarizing the calls from
Indian Rivers since she started her leave. (IRB, Ex. D at ex. 28; FRO, Ex. 1-B.) In that
memorandum, Franks discusses phone calls from Robbins regarding the location of certain
files and also mentions work that she was asked to perform. Specifically, Franks stated that
14
she “was reminded that the annual employee evaluations are due before the end of the
month.” (IRB, Ex. D at ex. 28; FRO, Ex. 1-B.) She further stated that “I will be keeping up
with the time I am working during my physician required medical leave as I will not be
taking eight hours of leave time if I am doing work or following up on work for Indian
Rivers.” (IRB, Ex. D at ex. 28; FRO, Ex. 1-B.)
On May 29, 2007, Harless sent a letter to Franks expressing concerns regarding her
job performance and stating that they would need to discuss them upon her return. (IRB, Ex.
D at 142-43; FRO, Ex. 10 at ex. 10.)4 On June 13, 2007, Harless sent Franks another letter
informing Franks that her “accrued leave, both sick and annual, was exhausted on June 8”
and that the “remainder of your FMLA leave will be unpaid leave.” (FRO, Ex. 10 at ex. 6.)
The letter also stated that “there are some critical issues we need to discuss with you
immediately upon your return to the office” and instructed Franks to report to Moore’s office
4
This letter stated in part:
Recently we conducted mock reviews in preparation for our upcoming
annual site visits by the state. In doing so we identified a number of things
that give me cause for concern regarding compliance issues. For example,
we noticed a high number of treatment plans with incomplete or irregular
entries. Also the Finance Department reported billing irregularities for
some of the same issues. As a result, we are examining a number of areas
and we will need to talk to you immediately upon your return to work.
...
In order to preserve all relevant records and for your protection, we have
suspended anyone from having access to your computer and office and any
remote access to our records.
15
to discuss issues with her job performance when she arrived back to work on June 26, 2007.
(Id.)
Indian Rivers contends that during Franks’s FMLA leave, Robbins had found, among
other things, many unsigned TPRs and employee leave requests that had not been acted on
for months. (Doc. 34 at 8 (citing FRO, Ex. C at 167, 169-70, & 190).) Franks contends,
however, that leave requests could only be turned in at certain times of the month due to
policy and procedure from the payroll department and thus there would have been work in
progress on Franks’s desk, though not many unsigned TPRs. (Doc. 38 at 8 (citing Ex. 1 ¶
13).)
On May 29, 2007, while on FMLA leave, Franks had her computer access terminated.
(FRO, Ex. 10, ex. 52 at bates 0357.) A complete audit of Franks’s patient files was also
performed during her FMLA leave period and her on-call pay was removed from her
paycheck. (Doc. 39-1 ¶¶ 10 & 15) Robbins did not conduct any audits of an employee’s
client files except Franks. (FRO, Ex. 4 ¶ 5.) When Franks returned to work on June 26,
2007, after receiving the full amount of FMLA leave she requested, (see IRB, Ex. A at 214),
her office was locked and the lock had been changed. (Doc. 39-1 ¶¶ 10 & 15.) Although
Indian Rivers has a progressive disciplinary policy, (see FRO, Ex. 10 at ex. 24), no
progressive disciplinary steps were taken by Indian Rivers prior to Franks’s termination.
(IRB, Ex. C at 262.) Consistent with the letters from Harless, Franks was directed to
Moore’s office for a three hour meeting with Moore, Harless, and Robbins during which
16
meeting Franks’s employment with Indian Rivers was terminated.5 (Doc. 39-1 ¶ 15; IRB,
Ex. A at 223; IRB, Ex. B at 180, 186-87, & 218; IRB, Ex. D at ex. 20.)
During the meeting of June 26, 2007 in which Franks was terminated, Moore told
Franks that she had performed her job ineffectively. (IRB, Ex. A at 224; see IRB, Ex. B at
218.) Moore reviewed a stack of TPRs with Franks and asked her to explain how she
allowed the mistakes contained therein. (IRB, Ex. A at 224-25; IRB, Ex. B at 103-04, 210,
& 218.) The very first TPR that Moore showed Franks stated “not billed” at the top of the
page; nevertheless, it appeared on Franks’s billing records. Franks explained that the TPR
has to be performed on each patient, but, if that patient has not been seen in 90 days, Indian
Rivers could not bill for performing the work. Moore told Franks that he did not understand
this practice and procedure. (FRO, Ex. 1 ¶ 16.) Franks pointed out that the billing logs were
not in her handwriting, at which time Moore became frustrated that Franks was explaining
each and every one of his concerns and, as a result, Moore stopped the process. (Id. ¶ 15.)
At the conclusion of the meeting, Moore terminated Franks’s employment at Indian Rivers
for “repeated failure to complete assigned objective (i.e. treatment plan review process),
[and] Code of Conduct violation - No. 2; Submitting claim that represent services all or part
5
Franks filed her Equal Employment Opportunity Commission (“EEOC”) charge of
discrimination on June 22, 2007 (the “EEOC Charge”). (FRO, Ex. 10 at ex. 21.) Counsel for
Franks faxed the letter of representation and the EEOC Charge to Indian Rivers’ Office on June
25, 2007. (FRO, Ex. 10, ex. 7 at 2; FRO, Ex. 10 at ex. 54.) Indian Rivers knew Franks had filed
the EEOC Charge at the time it terminated her. (FRO, Ex. 10, ex. 7 at 2; FRO, Ex. 10 at ex. 54.)
Indeed, Indian Rivers does not dispute this fact. (See doc. 43 at 2.)
17
of which simply were not performed.” (IRB, Ex. D, ex. 5 at bates 0051 & 0052; IRB, Ex.
A at ex. 31; IRB, Ex. B at 257-58.)
Franks was aware that duplicate billing of TPR related treatment plans was prohibited.
(IRB, Ex. A at 64.) Indian Rivers contends that during April 2007, after Franks took FMLA
leave, the Accounting Department advised Robbins that Franks had billed for an unusually
large number of TPRs between March 28, 2007 and April 4, 2007. (IRB, Ex. E.) Indian
Rivers contends that within the eight days between March 28, 2007 and April 4, 2007, Franks
signed 613 TPRs, twenty of which were duplicates. (IRB, Ex. E.) Indian Rivers did not
produce documentary evidence that this in fact occurred. Indian Rivers’ contentions are also
controverted by the testimony of Jones and Blackerby. (See FRO Ex. 7 at 15-22 & 54-56;
FRO, Ex. 8 at 80-84.) Blackerby, Indian Rivers’ employee responsible for accounting and
billing to Medicaid, testified that she was unaware of any duplicate billing. (FRO, Ex. 8 at
53.) Blackerby also testified that she did not know how to generate a report on Franks’s TPR
activity, was not asked to produce such a report, and did not, in fact, produce such a report.
(FRO, Ex. 8 at 54-55 & 80.)
There is evidence showing that the TPR, billing, and filing systems at Indian Rivers
were less than perfect, and that Indian Rivers had knowledge of these defencies. For
instance, approximately two hundred TPRs went missing from the file department and had
to be redone, and an additional three hundred fifty charts were identified as not assigned to
anyone. (FRO, Ex. 10, ex. 42 at 2; IRB, Ex. A at 151.) Indian Rivers does not contend that
18
these deficiencies were caused by Franks. Billing corrections and errors were a daily
occurrence. (FRO, Ex. 3 ¶ 5; IRB, Ex. B at 78-81.)
There is also evidence that Robbins has treated adversely other employees who have
exercised FMLA rights. (FRO, Ex. 3; FRO, Ex. 4 ¶¶ 5-6.) Robbins referred to employees
who needed FMLA leave as “problem employees.” (Doc. 39-1 ¶ 12.) Robbins had told
Barbara Lowery, an Indian Rivers’ employee, to put off surgery on two occasions and had
denied Audra Hudson, also an Indian Rivers’ employee, time off to care for her daughter and
grandchild. (FRO, Ex. 3; FRO, Ex. 6.) Another Indian Rivers’ employee, Bernice Kirkland,
turned in her FMLA paperwork on October 7, 2008, and was terminated December 11, 2008.
(FRO, Ex. 10 at ex. 27.) The same situation occurred when Jackie May turned in her FMLA
leave paperwork; she was terminated a short time later. (Id.)6
Before Franks went on FMLA leave in April 2007, she discovered that her health
records had been accessed through a computer program called Meditech, which is a
subscription service used by Indian Rivers. (Doc. 39-1 ¶ 9; FRO, Ex. 10 at ex. 9.) Franks
suspected that her personal medical records had been accessed because of the calls she
received from Indian Rivers inquiring about her medical condition during her FMLA leave
period. (FRO, Ex. 10 at ex. 28; Doc. 39-1 ¶ 9.) Franks went to Druid City Hospital (“DCH”)
and discussed her concerns of unauthorized medical access with its privacy officer. (Doc.
6
The court is not ruling at this point on the admissibility at trial of the evidence stated in
this paragraph.
19
39-1 ¶ 9.) On October 27, 2005, Franks had asked Dr. Syed Aftab, a psychiatrist employed
by Indian Rivers, to review lab results that she had not yet received from her physician.
(Doc. 1-4.) Dr. Aftab reviewed and gave Franks the results at her request. Franks later
discovered through her inquiry at DCH that Dr. Aftab had viewed her medical history on
subsequent occasions between October 27, 2005 and November 4, 2005. (Doc. 1-4.) As a
result, on May 14, 2007, Franks filed a Health Information Privacy Complaint with the
Office of Civil Rights (the “OCR Complaint”), complaining that her private health
information was viewed without her consent.7 (Doc. 1-4.)
Dr. Aftab testified that he had not discussed Franks’s medical information with
anyone. (IRB, Ex. G.) Franks testified that she does not have any proof that anyone other
than Dr. Aftab accessed her medical information or that Dr. Aftab’s viewing of her medical
history was unrelated to her request of October 27, 2005. (IRB, Ex. A at 244-26.) On June
10, 2008, approximately one year after Franks’s employment at Indian Rivers was
terminated, Franks filed her Complaint (“the Complaint”) in the instant action. (See doc. 1.)
Indian Rivers filed its Answer to the Complaint on July 8, 2008. (See doc. 4.) On June 22,
7
Indian Rivers contends that it did not receive a copy of the OCR Complaint until this
lawsuit was filed on June 10, 2008. (IRB, Ex. B at 204.) Franks admitted that she did not send a
copy of the OCR Complaint to Indian Rivers, has no proof that the OCR notified Indian Rivers
of her claim prior to her termination, and has no proof that Indian Rivers was aware that she filed
the OCR Complaint at the time of her termination. (IRB, Ex. A at 232.) Nonetheless, Franks
contends that Harless testified that Moore showed her the OCR Complaint before she was
terminated. (Doc. 38 at 9 (citing IRB, Ex. D at 135-26.)) Harless, however, testified later that
she recalled Indian Rivers did not receive any complaint or notification of Franks’s OCR claim
until after her termination. (Doc. 35-2 at 220-21.)
20
2010, Franks filed her Motion in Limine to Exclude Exhibits Summarizing Unproduced
Evidence. (See doc. 31.)
III. DISCUSSION
A. MOTION IN LIMINE TO EXCLUDE EXHIBITS, (doc. 31)
In the Motion in Limine, Franks moves to exclude Defendant’s Exhibit 13 and
Plaintiff’s Exhibits 30, 33, and 45, which were used in depositions to summarize TPRs
completed by Franks, because Indian Rivers has not produced the documentation underlying
the summary exhibits. (Doc. 31.) In response, Indian Rivers does not dispute that it has not
produced all of the documentation that would support the summary exhibits. (See doc. 32.)
Instead, Indian Rivers contends that it produced 613 of the 721 TPRs summarized, which is
the documentation that Indian Rivers could locate at the time it submitted its Initial and
Supplemental disclosures. (Id. at 2.) Indian Rivers further contends that it does not rely on
Defendant’s Exhibit 13 and Plaintiff’s Exhibits 30, 33, and 45 in its Motion for Summary
Judgment and thus requests that the court defer ruling on the Motion in Limine until after the
court has ruled on its Motion for Summary Judgment. (Id.)
Federal Rule of Evidence 1006 provides, in relevant part, that the contents of
voluminous writings, records, or photographs which cannot conveniently be examined in
court may be presented in the form of a chart, summary, or calculation. Fed. R. Evid. 1006.
Once admitted, a Rule 1006 exhibit constitutes substantive evidence. Peat, Inc. v. Vanguard
Research, Inc., 378 F.3d 1154, 1159 (11th Cir. 2004). The materials or documents on which
21
a Rule 1006 exhibit is based must be made available for “examination or copying,” and
though the underlying documents need not be admitted, they must nonetheless be admissible.
Id. at 1159-60; Fed. R. Evid. 1006. “In other words, Rule 1006 is not a back-door vehicle
for the introduction of evidence which is otherwise inadmissible.” Peat, Inc., 378 F.3d at
1160.
Here, Indian Rivers failed to produce all of the evidence underlying Defendant’s
Exhibit 13 and Plaintiff’s Exhibits 30, 33, and 45.
The court cannot evaluate the
admissibility of evidence not before it. Therefore, Franks’s Motion in Limine to Exclude
Exhibits Summarizing Unproduced Evidence, (doc. 31), is due to be granted without
prejudice to Indian Rivers’ right to produce the underlying documents and file a motion in
limine seeking admission of Defendant’s Exhibit 13 and Plaintiff’s Exhibits 30, 33, and 45.
B. MOTION TO STRIKE PLAINTIFF’S AFFIDAVIT, (doc. 42)
In the Motion to Strike Plaintiff’s Affidavit, Indian Rivers argues that Franks,
“through her affidavit, attempted to create issues of material fact.” (Doc. 42.) Specifically,
Indian Rivers contends that the Affidavit of Terri Franks (the “Franks Affidavit”)
“contradicts her previous, clear testimony,” (id. at 1-3), and “contains inadmissible hearsay.”
(Id. at 3-5.) The court will address Indian Rivers’ contradiction and inadmissible hearsay
arguments separately.
22
1. Contradiction
In the Eleventh Circuit, “[w]hen a party has given clear answers to unambiguous
questions which negate the existence of any genuine issue of material fact, the party cannot
thereafter create such an issue with an affidavit that merely contradicts, without explanation,
previously given clear testimony.” Van T. Junkins & Assoc. v. U.S. Indus., Inc., 736 F.2d
656, 657 (11th Cir. 1984); see McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1240
n.7 (11th Cir. 2003) (“Under the law of this Circuit, we may disregard an affidavit submitted
solely for the purpose of opposing a motion for summary judgment when that affidavit is
directly contradicted by deposition testimony.”). However, “[e]very discrepancy contained
in an affidavit does not justify a district court’s refusal to give credence to such evidence. In
light of the jury’s role in resolving questions of credibility, a district court should not reject
the content of an affidavit even if it is at odds with statements made in an early deposition.”
Green v. Pittsburgh Plate & Glass Co., 224 F. Supp.2d 1348, 1362 (N.D. Ala.
2002)(citations omitted). Therefore, the court must “find some inherent inconsistency
between an affidavit and a deposition before disregarding the affidavit.” Allen v. Board of
Public Educ. for Bibb County, 495 F.3d 1306, 1316 (11th Cir. 2007)(quoting Tippens v.
Celotex Corp., 805 F.2d 949, 954 (11th Cir. 1986).
Indian Rivers contends that Franks attempted to create issues of material fact
regarding the substance of the phone calls she received from Indian Rivers during her FMLA
leave period. (Doc. 42 at 1.) In the EEOC Charge, Franks stated that “the substance of each
23
call concerned insignificant questions regarding my job duties.” (Doc. 35-3 at 20.) The
Complaint similarly states that “the substance of each call concerned insignificant questions
regarding Plaintiff’s job duties.” (Doc. 1 at 6.) In her deposition, Franks stated that she went
to Indian Rivers twice during her leave, once to complete some FMLA paperwork and once
to meet with Robbins to discuss her surgery and expected return date. (Doc. 33, Ex. A at
220-21.) In the Franks Affidavit, however, Franks states that the “calls were about a crisis
phone for on-call that I had along with other employees, a discussion I already had with
another manager, location of files, work I needed to complete, and employee evaluations that
I needed to do immediately.” (Doc. 39-1 ¶ 7.) Indian Rivers contends this statement from
the Franks Affidavit contradicts her prior testimony because she never stated in her
deposition, the EEOC Charge, or the Complaint that she was asked to perform work on leave.
The court disagrees.
The statements in the Franks Affidavit are corroborated by the memorandum Franks
wrote to Robbins on April 19, 2007. In that memorandum, Franks discusses phone calls
from Robbins regarding the location of certain files and also mentions work that she was
asked to perform. Specifically, Franks stated that she “was reminded that the annual
employee evaluations are due before the end of the month.” (FRO, Ex. 1-B.) She further
stated that “I will be keeping up with the time I am working during my physician required
medical leave as I will not be taking eight hours of leave time if I am doing work or
following up on work for Indian Rivers.” (Id.) These statements, which were written during
24
Franks’s FMLA leave, are consistent with the statements in the Franks Affidavit.
Additionally, the deposition testimony cited by Indian Rivers in its motion to strike is not the
entirety of Franks’s testimony on the issue. In her deposition, Franks also describes the
phone calls made to her during FMLA leave as requesting information about the location of
files and information about TPRs. (IRB, Ex. A at 216-19.)
Furthermore, Indian Rivers’ contradiction argument is not based on an inherent
inconsistency between what Franks said in her Affidavit and what Franks said in the EEOC
Charge, the Complaint, and her deposition; instead, its contradiction argument is based on
what Franks did not say in the EEOC charge, the Complaint, and her deposition. (See doc.
42)(“Nowhere in the charge, which was written while Plaintiff was still on FMLA leave,
does she state that she was asked to perform work on leave.”) Franks did not state in her
deposition, the EEOC Charge, or the Complaint that the calls did not concern work or
employee evaluations that she needed to complete. Additionally, the phrase “insignificant
questions regarding my job duties” could reasonably be interpreted by the trier of fact to refer
to work that needed to be completed but that was not so important as to warrant a phone call
during FMLA leave. Therefore, Indian Rivers’ Motion to Strike Plaintiff’s Affidavit on
contradiction grounds is due to be denied.
2. Inadmissible Hearsay
“Under Federal Rule of Civil Procedure 56(e), affidavits, supporting or opposing
summary judgment, must be made on personal knowledge and must set forth facts that would
25
be admissible evidence.” McCaskill v. Ray, 279 Fed. Appx. 913, 914-15 (11th Cir. 2008)
(citing Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999); Fed. R. Civ. P. 56(e)); see
also Fed. R. Civ. P. 56(c)(4). “Hearsay is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Fed. R. Evid. 801(c). Hearsay is inadmissible absent an exception. “[A] district
court may consider a hearsay statement in passing on a motion for summary judgment” only
if “the out-of-court statement made to the witness ... [would be] admissible at trial for some
purpose.” Macuba, 193 F.3d at 1323.
Indian Rivers contends that the following statements from Franks’s Affidavit
constitute inadmissible hearsay: (1) “Employees began calling to tell me at home to tell me
my job was in jeopardy. My employees were concerned I was going to be fired. I was told
that all of my patient records were being reviewed by Robbins and Harless,” (doc. 39-1 ¶ 10);
(2) “Approximately three months after my termination from Indian Rivers I saw my primary
physician for a follow-up visit. My physician told me that prior to my returning to work from
FMLA, Harless had contacted her [and] stated, ‘we think Terri may be depressed and
paranoid’ and that Harless wanted information on my medical treatment. My physician
refused to share anything but felt I needed to know about the conversation,” (id. ¶ 26); (3)
“[T]he emergency room physician told me it was imperative I see my private doctor the next
day,” (id. ¶ 6); and (4) the statement of Chris Jones, privacy officer for DCH, “Yes, we have
had problems with her before.” (Id. ¶ 9.) The court agrees with Indian Rivers.
26
These statements from the Franks Affidavit are hearsay pursuant to Fed. R. Evid. 802
because they are out of court declarations made by someone other than the declarant and are
offered to prove the truth of the matter asserted. See Fed. R. Evid. 801. None of these
statements fall within exceptions to the hearsay rule, and none are admissions by a party
opponent. These statements are thus due to be stricken as inadmissible hearsay. Therefore,
to the extent Indian Rivers’ Motion to Strike Plaintiff’s Affidavit, (doc. 42), is based on
inadmissible hearsay, it is due to be granted.8
C. MOTION FOR SUMMARY JUDGMENT, (doc. 34)
Indian Rivers contends that it is entitled to judgment as a matter of law “[b]ecause
there are no genuine issues of material fact” and Franks “fails to state a claim against
Defendant” under the FMLA and “fails to state a claim against Defendant under
HIPAA...and for invasion of privacy.” (Doc. 34.)
As set forth above, summary judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
8
Although the evidence before the court contains hearsay statements, other than those
identified in Indian Rivers’ Motion to Strike, these statements provoked no timely objection from
either party and, therefore, are properly before the court on summary judgment. See Offshore
Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir. 1987)(“[I]f evidence otherwise
inadmissible provoked no timely objection, it could and, if material, should be factored into a
summary judgment decision.”); Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1296 n. 17 (5th Cir.
1994)(“The Contractors now contend that this paper is hearsay, and cannot be relied on by the
district court in rendering summary judgment. However, they did not raise this hearsay objection
below, so the error, if any, is waived.”).
27
that there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Where the burden of proof at trial is on the nonmovant, this standard can be met either by
submitting affirmative evidence negating an essential element of the nonmovant’s claim, or
by demonstrating that the non-moving party’s evidence itself is insufficient to establish an
essential element of his or her claim. Id. at 322; see Fed. R. Civ. P. 56(a) and (b).
1. FMLA
Generally, an employee may raise one of two basic types of FMLA claims: one based
on the employer’s denial of or interference with the employee’s substantive rights under the
FMLA and the other based on the employer’s discrimination or retaliation against the
employee for engaging in activity under the FMLA. The Eleventh Circuit has held:
Among the substantive rights granted by the FMLA to eligible
employees are the right to “12 workweeks of leave during any 12-month
period . . . [b]ecause of a serious health condition that makes the employee
unable to perform the functions of the position of such employee,” 29 U.S.C.
§ 2612(a)(1), and the right following leave “to be restored by the employer to
the position of employment held by the employee when the leave commenced”
or to an equivalent position, 29 U.S.C. § 2614(a)(1). To preserve the
availability of these rights, and to enforce them, the FMLA creates two types
of claims: interference claims, in which an employee asserts that his employer
denied or otherwise interfered with his substantive rights under the Act, see 29
U.S.C. § 2615(a)(1), and retaliation claims, in which an employee asserts that
his employer discriminated against him because he engaged in activity
protected by the Act, see 29 U.S.C. § 2615(a)(1) & (2); 29 C.F.R. § 825.220(c)
(“An employer is prohibited from discriminating against employees . . . who
have used FMLA leave.”).
Strickland v. Water Works & Sewer Bd., 239 F.3d 1199, 1206 (11th Cir. 2001).
28
“To state a claim of interference with a substantive right, an employee need only
demonstrate by a preponderance of the evidence that he was entitled to the benefit denied.”
Id. at 1206-07 (citing O'Connor, 200 F.3d at 1353-54; King v. Preferred Technical Group,
166 F.3d 887, 891 (7th Cir. 1999)). “In contrast, to succeed on a retaliation claim, an
employee must demonstrate that his employer intentionally discriminated against him in the
form of an adverse employment action for having exercised an FMLA right.” Id. at 1207
(citing King, 166 F.3d at 891). Franks alleges one cause of action, which consists of two
claims, under the FMLA: (1) interference and (2) retaliation. (See doc.1 ¶¶ 33-40.)
Franks’s first interference theory of recovery is interference with the right to FMLA
leave. The FMLA provides that “[i]t shall be unlawful for any employer to interfere with,
restrain, or deny the exercise of or the attempt to exercise, any right provided under [the
FMLA].” 29 U.S.C. 2615(a)(1). “‘Interfering with’ the exercise of an employee’s rights ...
include[s] ... not only refusing to authorize FMLA leave, but discouraging an employee from
using such leave.” 29 C.F.R. 825.220(b).9 The FMLA’s “prohibition against ‘interference’”
also prohibits an employer from using “the taking of FMLA leave as a negative factor in
employment actions....” 29 C.F.R. 825.220(c). Franks asserts multiple grounds for her first
FMLA interference claim.
9
Administrative interpretations “are given controlling weight unless they are arbitrary,
capricious, or manifestly contrary to the statute.” Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
29
First, Franks contends that Indian Rivers interfered with and discouraged her from
using FMLA leave by asking her to postpone her leave requested in October of 2006 until
after an audit by the Alabama Department of Mental Health and Mental Retardation. (Doc.
38 at 1, 11, & 20; doc. 39-1 ¶ 4.) Indian Rivers contends that “[t]here is no merit to this
argument” because Franks “did ultimately take her leave[,]... has presented no evidence that
surgery was ‘medically necessary” in October of 2006[,] ... does not allege that she sought
the advice of her physician to overrule the Defendant’s request[,] ... stated she herself had
postponed the surgery for five years.” (Doc. 43 at 5 (internal citations omitted).) The court
agrees with Indian Rivers.
The FMLA provides that when leave is foreseeable due to planned medical treatment
“the employee ... shall make a reasonable effort to schedule the treatment so as not to disrupt
unduly the operations of the employer, subject to the approval of the health care provider of
the employee....” 29 U.S.C. § 2612 (e)(2)(A). The opening section of the FLMA highlights
the interplay between the interests of the employee and the interests of the employer and
makes clear that the purpose of the FMLA is “to entitle employees to take reasonable leave
for medical reasons ... in a manner that accommodates the legitimate interests of employers.”
29 U.S.C. § 2601(b). The regulations promulgated by the Department of Labor further
indicate that “[e]mployees are ordinarily expected to consult with their employers prior to the
scheduling of treatment in order to work out a treatment schedule which best suits the needs
of both the employer and the employee.” 29 C.F.R. § 825.302(e); see Kaylor v. Fannin Reg’l
30
Hosp., Inc., 946 F. Supp. 988, 998 (M.D. Ga. 1996)(“The FMLA and subsequent regulations
promulgated by the Department of Labor require the employee to consult with the employer
when planning medical treatment.”); cf. LeBoeuf v. New York Univ. Med. Ctr., 2000 WL
1863762 (S.D. NY. 2000)(concluding that a supervisor’s request that an employee postpone
his FMLA leave in light of the a pending hospital audit and the busy holiday season did not
support an inference that the reasons given for the employee’s termination were pretextual).
No reasonable jury could find that Indian Rivers interfered with Franks’s right to take
FMLA leave by asking her to postpone her surgery. Making arrangements with an employee
to avoid unduly disrupting business by asking the employee to postpone FMLA leave in light
of an upcoming audit is, as a matter of law, consistent with the purpose of the FMLA and
does not give rise to a claim for interference. What’s more, Franks has not presented any
evidence that her doctors objected to the postponement, that the requested postponement was
meant to discourage her from taking leave, or that the postponement ultimately interfered
with her FMLA leave. Therefore, to the extent Franks’s interference claim is based on
Robbins’s request that she postpone surgery, Indian Rivers is entitled to judgment as a matter
of law.
Second, Franks contends that Indian Rivers interfered with her right to FMLA leave
by removing the “on-call” pay she received for taking calls as part of the Crisis Response
Team from her paycheck in “mid-May” 2007 during her FMLA leave. (Doc. 1 ¶ 27; Doc.
31
39-1 ¶ 10.) From April 16, 2007 through June 8, 2007, Franks was on paid FMLA leave.10
(See FRO, Ex. 10 at ex. 6). Franks’s on-call pay was terminated during the paid portion of
her FMLA leave. (FRO, Ex. 1 ¶ 10.) The Franks Affidavit states that “[i]t had never been
the practice of Indian Rivers to stop the on-call salary of any [crisis response] team member
on leave before it happened to me during FMLA leave.”11 (Doc. 39-1 ¶ 12.) The Franks
Affidavit further indicates that “if a [crisis response] team member need an extended period
of time off, the team either picked up the extra work week or we traded dates among
ourselves.” (Id.) Indian Rivers does not dispute that Franks’s on-call pay was terminated
during her FMLA leave. (See doc. 43 at 5.) Instead, Indian Rivers contends that summary
judgment is appropriate because “[t]he on-call pay is based on taking calls,” and that
“[b]ecause the Plaintiff was on FMLA and not able to perform work, she was not paid for
on-call pay.” (Id.)
The issue is not, as Franks implies, whether it is the practice of Indian Rivers to stop
the on-call pay of Crisis Response Team Members during FMLA leave. Rather, the issue is
whether the removal of her on-call pay constitutes FMLA interference. On the latter issue,
the court is of the opinion that an employer may deny an employee on-call pay during FMLA
10
Franks exhausted her accrued leave as of June 8, 2007, and thus the remainder of her
leave was unpaid. (FRO, Ex. 10 at ex. 6.)
11
Although defendant does not move to strike this portion of Plaintiff’s affidavit, the court
questions whether this information could be based on personal knowledge. Nevertheless, for
purposes of the motion for summary judgment, the court will consider this evidence undisputed.
32
leave, where that pay is based on performance (i.e. taking calls) and where the employee is
unable to so perform (i.e. take calls) due to FMLA leave, without interfering with the
employee’s rights under the FMLA. Although there is nothing addressing this precise issue
in the FMLA or the Code of Federal Regulations as it relates to the FMLA, and no cases
were cited addressing this issue, support for the court’s holding is found by way of analogy
in the Code of Federal Regulations as it relates to equivalent pay. 29 C.F.R. § 825.215(c)(2)
provides that “if a bonus or other payment is based on the achievement of a specified goal
such as hours worked, products sold or perfect attendance, and the employee has not met the
goal due to FMLA leave, then the payment may be denied.” Although 29 C.F.R. §
825.215(c)(2) concerns “[e]quivalent pay” upon return from FMLA leave, and although
Franks’s on-call pay was terminated during her FMLA leave, not upon her return from
FMLA leave, the court considers that on-call pay is analogous to a production bonus, which,
if based on performance, may be denied where the employee has not met the goal due to
FMLA leave. Therefore, Indian Rivers is entitled to judgment as a matter of law on Franks’s
interference claim based on the removal of her on-call pay.
Third, Franks contends that Indian Rivers interfered with her FMLA leave by making
“numerous phone calls” to her during her FMLA leave. (Doc. 1 ¶¶ 19-22 & 33-40.) The
Franks Affidavit states that the “calls were about a crisis phone for on-call that I had along
with other employees, a discussion I already had with another manager, location of files,
work I needed to complete, and employee evaluations that I needed to do immediately.”
33
(Doc. 39-1 ¶ 7; see FRO, Ex. 1-B.) In response, Indian Rivers argues that these phone calls
“concerned a call made by her ex-husband about their child and several calls about the
location of files and the status of treatment plans for mentally ill patients” and that “none of
the calls asked the Plaintiff to come to work or to perform any work.” (Doc. 35 at 17.)
Notably, Indian Rivers did not argue, assuming Franks’s version of the facts is correct, (see
FRO, Ex. 1-B), that asking or requiring Franks to perform such work-related tasks during her
FMLA leave does not constitute interference. (See docs. 34 & 43.) The court agrees with
Indian Rivers that the phone calls, though allegedly made at inappropriate times, do not alone
constitute interference. Construing the facts in a light most favorable to Franks, however,
the court finds that there is a genuine issue of material fact as to whether Indian Rivers
interfered with Franks’s right to FMLA leave by asking or requiring her to perform workrelated tasks during her leave period.
Asking or requiring an employee to perform work during FMLA leave can constitute
interference with that employee’s FMLA rights. Cf. Sherman v. AI/FOCS, Inc., 113 F. Supp.
2d 65, 70-71 (D. Mass. 2000)(“By essentially requiring Plaintiff to work while on leave ...
Defendant has ‘interfered’ with Plaintiff’s attempts to take leave....”). “[T]he ability to take
FMLA leave is not conditioned upon the willingness of the employee to remain ‘on call’ to
the employer. Of the many prerequisites to FMLA leave, the convenience of the employer
is not one.” Id. at 70. For example, in Arban v. West Publishing Corp., 345 F.3d 390 (6th
Cir. 2003), the plaintiff was asked to perform work-related tasks while he was on medical
34
leave, and the court found that this interfered with his rights under the FMLA. Id. at 402-05;
see McConnell v. Swifty Transp., Inc., 2005 WL 1865386, *8 (S.D. Ohio 2005)(“[T]here is
a genuine issue of fact about whether Stevens contacted McConnell to ask him if he would
perform work-related tasks during the first two weeks of his FMLA leave”). Indian Rivers
relies on Reilly v. Revlon, Inc., 620 F. Supp. 2d 524 (S.D.N.Y. 2009), and contends that the
Reilly court “was faced with a situation identical to the one before this Court.” (Doc. 34 at
13.)
In Reilly, the employer asked the employee questions about work on numerous
occasions during her pregnancy leave and subsequent hospital stay. The employee was never
asked to perform any work while on leave and received all of the leave to which she was
entitled. The employee argued that the telephone calls constituted “interference” with her
right to leave, but the court disagreed. The court stated:
Fielding occasional calls about one’s job while on leave is a professional
courtesy that does not abrogate or interfere with the exercise of an employee’s
FMLA rights. When limited to the scope of passing on institutional knowledge
to new staff, or providing closure on completed assignments, employers do not
violate the FMLA by making such calls.
Reilly, 620 F. Supp. 2d at 537.
Although the court is of the opinion that the Reilly court properly held that sufficiently
cabined phone calls from an employer to an employee during the employee’s FMLA leave
do not constitute interference, Reilly is distinguishable from the case sub judice. Here, unlike
in Reilly, there is a genuine issue of material fact as to whether Indian Rivers asked or
35
required Franks to perform work during her FMLA leave period.12 (See doc. 39-1 ¶ 7; see
FRO, Ex. 1-B.)
Franks’s second interference theory of recovery is interference with the right to
reinstatement.13 (Doc. 1 ¶¶ 33-40.) The FMLA provides that “an employee returning from
covered leave is entitled to be restored to his former position or its equivalent.” Strickland,
239 F.3d at 1208; 29 U.S.C. § 2614(a)(1). “An employer can deny the right to reinstatement,
however, if it can demonstrate that it would have discharged the employee had he not been
on FMLA leave.” Strickland, 239 F.3d at 1208 (citing O’Connor, 200 F.3d at 1354); 29
C.F.R. § 825.216(a)(interpreting 29 U.S.C. § 2614 so as to allow an employer to escape
12
The court notes that at the time Plaintiff was apparently asked to perform employee
evaluations, she had not been approved for FMLA leave. In an April 27, 2007 letter from Rita
Harless, defendant’s Director of Human Resources, she notes that plaintiff’s FMLA request has
not yet been approved:
Last week, when we spoke regarding your FMLA request, I stressed the
importance of providing the documentation necessary to support your absences. I
offered to fax the certification paperwork directly to your doctor as this usually
provides a quicker response, but you did not want me to. You indicated that the
leave commenced April 16, 2007, and that your doctor had given you an “offwork” excuse until May 1, 2007. You have not provided me with that note.
Please understand that your absences to date are not approved until you provide
the required documentation. The FMLA forms must be returned to Human
Resources prior to FMLA leave being approved. (Ex. 10, ¶ 29.)
Thus, the time plaintiff was asked to perform work, she was arguably not on FMLA leave.
13
The undisputed evidence shows that Franks was terminated immediately upon her
return from FMLA leave. Although Indian Rivers appears to argue that Franks was reinstated
and then terminated, (see doc. 34 at n .2), Franks has presented evidence that during FMLA leave
her computer access was terminated, her office was locked, and the lock on her office was
changed.
36
liability under the FMLA on an interference claim if the employer can demonstrate that the
employee who was denied reinstatement after FMLA leave would have been discharged even
if he had not taken FMLA leave). The reinstatement analysis tracks closely the FMLA
retaliation analysis, and as discussed infra, there is a genuine issue of material fact as to
whether Franks would have been terminated had she not taken FMLA leave. Therefore, for
the reasons stated below, summary judgment is inappropriate on Franks’s interference claim
based on the denial of her right to reinstatement.
Franks’s second claim is retaliation. Generally, a plaintiff may attempt to establish
retaliation through the use of direct or circumstantial evidence. Standard v. A.B.E.L.
Services, Inc., 161 F.3d 1318, 1330 (11th Cir. 1998); see also Schoenfeld v. Babbit, 168 F.3d
1257, 1266 (11th Cir. 1999)(acknowledging the availability of either direct or circumstantial
evidence). Allowing a plaintiff to establish retaliation or discrimination through the use of
circumstantial evidence is significant because direct proof of discrimination is uncommon.
Grigsby v. Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir. 1987). When a plaintiff asserts
a claim of retaliation under the FMLA, in the absence of direct evidence of the employer’s
intent, courts apply the familiar burden-shifting framework established by the United States
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), for evaluating
Title VII discrimination claims. Strickland, 239 F.3d at 1207; see Dollar v. Shoney’s, Inc.,
981 F. Supp. 1417, 1419 (N.D. Ala 1997). Under that framework, the plaintiff has the initial
burden of establishing a prima facie case of retaliation. Dollar, 981 F. Supp at 1420 (citing
37
Morgan v. Hilt, 108 F.3d 1319, 1325 (10th Cir. 1997)); see Combs, 106 F.3d at1527-28. To
state a prima facie case for retaliation, “an employee must allege that: (1) he engaged in a
statutorily protected activity; (2) he suffered an adverse employment decision; and (3) the
decision was causally related to the protected activity.” Strickland, 239 F.3d at 1207 (citing
Parris v. Miami Herald Publ'g Co., 216 F.3d 1298, 1301 (11th Cir. 2000)).
If a prima facie case of retaliation has been established, thereby giving rise to a
presumption of unlawful, disparate treatment, the burden of production shifts to the
defendant to rebut the presumption of retaliation by articulating legitimate, nondiscriminatory
reasons for the contested employment action. Combs, 106 F.3d at 1528 (citing McDonnell
Douglas, 411 U.S. at 802; Burdine, 450 U.S. at 254). The defendant need not persuade the
court that it was actually motivated by the proffered reasons. It is sufficient if the
defendant’s evidence raises a genuine issue of fact as to whether it retaliated against the
plaintiff. Combs, 106 F.3d at 1528 (quoting Burdine, 450 U.S. at 254-55 (citation and
footnote omitted)). “[T]he employer need only produce admissible evidence which would
allow the trier of fact rationally to conclude that the employment decision had not been
motivated by discriminatory animus.” Combs, 106 F.3d at 1528 (quoting Burdine, 450 U.S.
at 257).
If the defendant successfully articulates legitimate, nondiscriminatory reasons for the
contested employment action, the burden shifts back to the plaintiff to show that defendant’s
38
stated reasons are merely pretexts for unlawful, discriminatory motives. Combs, 106 F.3d at
1528 (citing Burdine, 450 U.S. at 256). As explained by the Supreme Court:
[The plaintiff] now must have the opportunity to demonstrate that the
proffered reason was not the true reason for the employment decision . . .
[The plaintiff] may succeed in this 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.
Burdine, 450 U.S. at 256. In other words, a plaintiff may defeat a summary judgment by
producing sufficient evidence, including the evidence previously produced establishing the
prima facie case, to allow a rational trier of fact to disbelieve the employer’s proffered
legitimate reasons, thus permitting but not compelling the trier of fact to make a finding of
unlawful discrimination. Combs, 106 F.3d at 1528 (citing Burdine, 450 U.S. at 256;
McDonnell Douglas, 411 U.S. at 804); see also Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 148-49 (2000). To accomplish this, a plaintiff may point to “weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions” in the employer's proffered
reason. Diaz v. Transatlantic Bank, 367 Fed. Appx. 93, 97 (11th Cir. 2010)(quoting Brooks,
446 F.3d at 1163 (citation omitted)). However, a plaintiff cannot merely quarrel with the
wisdom of the employer's reason, but “must meet the reason head on and rebut it.” Diaz, 367
Fed. Appx at 97 (quoting Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000)
(en banc)).
It is undisputed that Franks engaged in statutorily protected activity by requesting and
taking FMLA leave. (See docs. 34 & 43.) Therefore, the first element of the prima facie
39
case is satisfied. As to the second element, Franks has plausibly raised three potentially
adverse employment actions: the change in her workload and in Robbins’s attitude towards
her after she informed Robbins of her need to take FMLA leave; the letters she received from
Harless during her FMLA leave; and her termination upon return from FMLA leave. (See
doc. 1.) The court will address each action separately.
In the opinion of the court, the increase in Franks’s responsibilities and the alleged
change in Robbins’s attitude towards plaintiff following her request for FMLA leave in
October 2006 do not constitute adverse employment action. In Davis, the Eleventh Circuit
observed, in a Title VII case, that in the majority of instances, “a change in work
assignments, without any tangible harm” does not constitute adverse employment action,
“especially where ... the work assignment at issue is only by definition temporary and does
not affect the employee’s permanent job title or classification.” Davis, 245 F.2d at 1245.
“Work assignment claims strike at the very heart of an employer’s business judgment and
expertise because they challenge an employer’s ability to allocate its assets in response to
shifting and competing ... priorities. Id. at 1244. Here, after Franks informed Robbins of her
need for surgery, Franks’s TPR responsibilities increased from eight hundred to nine hundred
to approximately five thousand, Franks was required to engage in various other managerial
and training activities, and Robbins became openly irritated with Franks. Under Davis, these
actions lack the requisite materiality to constitute adverse employment action.
40
The three letters Franks received from Harless during her FMLA leave citing job
performance issues also do not constitute adverse employment action. In Hawkins v. Potter,
316 Fed. Appx. 957 (11th Cir. 2009), the Eleventh Circuit held that an employee’s receipt
of three letters from his employer citing past performance problems did not constitute
adverse employment action. Id. at 961 (citing Davis, 245 F.3d at 1239). In Howard v.
Walgreen Co. d/b/a Walgreens Pharmacy, 605 F.3d 1239 (11th Cir. 2010), the court found
that merely telling an employee that his job was in jeopardy after he complained about
“discrimination” did not reasonably amount to adverse employment action. Id. at 1245; see
also Davis, 245 F.3d at 1240 (“We do not view either of the job performance memoranda as
constituting adverse employment action”). Franks has failed to establish that the letters had
any impact on the “terms, conditions, or privileges” of her employment in a “real and
demonstrable way.” Hawkins, 316 Fed. Appx. at 961. Therefore, the court finds that the
letters from Harless do not constitute adverse employment action.
Though none of the pre-termination actions taken by Indian Rivers constitute adverse
employment actions, the termination of Franks’s employment upon her return from FMLA
leave certainly does. “Termination is an adverse employment action.” McCray v. Wal-Mart
Stores, Inc., 377 Fed. Appx. 921, 923 (11th Cir. 2010) (citing Hurlbert v. St. Mary’s Health
Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006)); see Crawford v. Carroll, 529 F.3d
961, 970 (11th Cir. 2008). Indeed, Indian Rivers does not dispute this. (See docs. 35 & 43.)
41
Therefore, on this ground, the court finds that the second element of the prima facie case is
satisfied.
While Indian Rivers does not generally dispute that the first two elements of the prima
facie case are satisfied, it does, though not in certain terms, contend that its decision to
terminate Franks was not causally related to her exercise of FMLA rights. (Doc. 34 at 16-21;
doc. 43 at 4-9.) “To establish a causal connection, a plaintiff must show that the decisionmakers were aware of the protected conduct, and that the protected activity and the adverse
actions were not wholly unrelated.” Shannon v. Bellsouth Telecommunications, Inc., 292
F.3d 712, 716 (11th Cir. 2002) (quoting Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 590
(11th Cir. 2000).
The Eleventh Circuit construes the causal link element broadly.
Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). Close temporal
proximity between the protected conduct and the adverse employment action can indicate
causation. See Brunghart v. Bellsouth Telecomm. Inc., 231 F.3d 791, 798 (11th Cir. 2000)
(citing Bechtel Constr. Co. v. Secretary of Labor, 50 F.3d 926, 934 (11th Cir. 1995)
(“Proximity in time is sufficient to raise an inference of causation.”)). In Clark County Sch.
Dist. v. Breeden, 532 U.S. 268 (2001), the Supreme Court recognized that “[t]he cases that
accept mere temporal proximity between an employer’s knowledge of protected activity and
an adverse employment action as sufficient evidence of causality to establish a prima facie
case uniformly hold that the temporal proximity must be ‘very close.’” Id. at 273. In this
case, the temporal proximity is “very close.” See Martin v. Brevard Cty. Pub. Schools, 543
42
F.3d 1261, 1268 (11th Cir. 2008) (“[T]he close temporal proximity between the two - Martin
was terminated while on FMLA leave - is more than sufficient to create a genuine issue of
material fact of causal connection.”). Franks was terminated the day she returned to Indian
Rivers from FMLA leave. This case is thus unlike other cases where a substantial delay
between the protected expression and the adverse action alone was not enough to establish
causation. See, e.g., Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006) (holding that “in
the absence of any other evidence of causation,” a three month proximity “between a
protected activity and an adverse employment action is insufficient to create a jury issue on
causation”); Wascura v. City of South Miami, 257 F.3d 1238, 1248 (11th Cir. 2001) (holding
that, by itself, three and one-half months was insufficient to prove causation). In this case
the “very close” temporal proximity is alone sufficient to satisfy the causal link element.
Even assuming, however, that the close temporal proximity alone is insufficient to establish
causation, the close temporal proximity in this case is buttressed by other evidence indicating
causation. See Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999).
The close temporal proximity, combined with the circumstances surrounding Franks’s
termination, which are described in detail below, present a triable issue as to whether there
is a causal connection between Franks’s FMLA leave and her termination.
Indian Rivers terminated Franks for two reasons: “[R]epeated failure to complete
assigned objective (i.e. treatment plan review process), [and] Code of Conduct violation No. 2; Submitting claim that represent services all or part of which simply were not
43
performed.” Franks was responsible for implementing a system for monitoring TPRs, knew
the importance of conducting TPRs, and was ultimately responsible for completing TPRs.
Indian Rivers has produced evidence that Franks was terminated for repeatedly failing to
develop a process for competing TPRs and for her serious errors in completing TPRs. For
instance, while Franks was on leave, Indian Rivers discovered many unsigned TPRs on
Franks’s desk and also allegedly learned that Franks had billed for an unusually large number
of TPRs between March 28, 2007 and April 4, 2007, some of which were allegedly
duplicates. (See IRB, Ex. E.) Therefore, the court finds that Indian Rivers has produced
sufficient admissible evidence to allow the trier of fact to rationally conclude that its decision
to terminate Franks was legitimate, not retaliatory, and to shift the burden back to Franks to
show that these stated reasons were pretextual.
In alleging that Indian Rivers’ articulated reasons for her termination were pretextual,
Franks emphasizes that Indian Rivers deviated from its progressive disciplinary policy, and
that Indian Rivers’s explanation for Franks’s termination is a cover-up. (Doc. 38 at 26-29.)
First, there is a genuine issue of material fact as to whether Indian Rivers’ deviation from its
progressive disciplinary policy was warranted. An employer’s deviation from its own
standard procedures may serve as evidence of pretext. Hurlbert, 439 F.3d at 1299; accord
Rudin v. Lincoln Land Community Coll, 420 F.3d 712, 727 (7th Cir. 2005)(“An employer’s
failure to follow its own internal employment procedures can constitute evidence of
pretext.”). Indian Rivers relies on Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236 (11th
44
Cir. 2010), and contends that in Schaaf “the Eleventh Circuit was presented with a nearly
identical situation to the instant case.” (Doc. 35 at 16.) Schaaf, however, is distinguishable.
In Schaff, the court stated:
[A]lthough evidence that GSK deviated from its ordinary disciplinary
procedures may have caused a jury to entertain the possibility of an alternate
explanation for Schaff’s demotion, Schaff offered no evidence that would have
a allowed a jury to find that there was such an alternate explanation. Schaff
did not present any evidence suggesting that GSK was motivated by a
discriminatory animus, nor did she offer any evidence showing that GSK’s
reasons were bad ones - that is, she did not argue that she was not an
aggressive, insensitive leader with poor communication skills.
602 F.3d at 1244 (emphasis added).
Unlike the employee in Schaaf, Franks has presented substantial evidence to raise a
genuine issue of material fact as to whether Indian Rivers’ stated reasons for her termination
(i.e. fraudulent billing and mistakes related to TPRs and the TPR review process) were false
or more likely motivated by a discriminatory animus. Franks denied (and continues to deny)
that she committed the TPR mistakes attributed to her.14 After Franks was promoted to AOP
Manager and worked under Robbins for a year, Robbins scored Franks higher than the year
before on her yearly evaluation in November 2006. Robbins neither recorded nor indicated
in any fashion that she had any issue with Franks TPR performance or Frank’s
implementation of a TPR review system on Franks’s yearly evaluation in November 2006.
Moreover, as late as March 2007, Robbins openly praised Franks for her work in updating
14
Plaintiff’s denial alone would not create a question of fact.
45
patient files, identifying Medicaid patients, completing all Medicaid TPRs, and assigning
treatment tracks. Franks has also negated Indian Rivers’ accusation that her mistakes in
completing TPRs and implementing a TPR review process caused a forty thousand dollar
($40,000.00) payback to Medicaid. Indian Rivers has not produced any evidence to support
its allegation of such a Medicaid payback. And, in fact, the very people (Jones and
Blackerby) that Robbins claims advised her that Franks caused a forty thousand dollar
($40,000.00) payback to Medicaid, testified that they did not advise Robbins or anyone else
at Indian Rivers of such a Medicaid payback. The lack of evidence to support Indian Rivers’
Medicaid payback allegation is, in and of itself, evidence of pretext.
Furthermore, Franks has presented evidence showing that Indian Rivers had
knowledge that mistakes in completing TPRs are a common occurrence because of missing
files, notes, and other factors beyond the control of the person completing the TPR. In this
regard, the situation in the AOP closely resembles that found in Sherman v. AI/FOCS, Inc.,
113 F. Supp. 2d 65 (D. Mass. 2000), which is persuasive. See id. at 71-72 (finding an
employer’s termination of an employee because of, inter alia, poor job performance,
including failing to pay vendor invoices, and lost invoices unconvincing in light of evidence
that the employer knew the disarray in the employee’s department could not be attributed to
her). Here, like in Sherman, there is substantial evidence from which a reasonable jury could
find that Franks’s failure to implement an effective TPR monitoring system and to complete
TPRs, if such failures did in fact occur, were not Franks’s fault. Although Franks knew the
46
importance of TPRs and was ultimately responsible for completing TPRs, there is substantial
probative evidence before the court showing that Indian Rivers had knowledge that the TPR,
billing, and filing systems at Indian Rivers were in disarray, and that this disarray was not
attributable to Franks. This knowledge, along with the other evidence outlined above,
demonstrates
“weaknesses,
implausibilities,
inconsistencies,
incoherencies,
or
contradictions” in Indian Rivers’ proffered reasons for Franks’s termination. Combs, 106
F.3d at 1538.
Second, there is substantial evidence from which a rational trier of fact could find that
Indian Rivers’ stated reasons for Franks’s termination were a cover-up for discrimination and
thus pretextual. Indian Rivers terminated Franks the day she returned from FMLA leave and
four days after she filed her EEOC Complaint . See, e.g., Hurlbert, 439 F.3d at 1298 (“The
close temporal proximity between Hurlbert’s request for leave and his termination - no more
than two weeks, under the broadest reading of the facts - is evidence of pretext....”); Medina
v. Income Support Div., New Mexico, 413 F.3d 1131, 1138 (10th Cir. 2005)(“While we ‘have
stated that close temporal proximity is a factor in showing pretext, [it] is not alone sufficient
to defeat summary judgment.’”). Indian Rivers contends that, in light up an upcoming site
visit from the Department of Mental Health and Mental Retardation, it conducted an audit
of Franks’s files while she was on FMLA leave. Indian Rivers, however, did not audit the
files of anyone other than Franks. The lone audit of Franks’s files is evidence of pretext
because it is reasonable to infer that had Indian Rivers truly been concerned with the
47
upcoming audit, it would not have confined its inquiry solely to Franks’s files. Moreover,
during the audit, Indian Rivers was allegedly advised that Franks had billed for an unusually
large number of TPRs, some of which were allegedly duplicates. Jones and Blackerby,
however, testified that they do not know how to prepare such a report on an employee’s TPR
activity or billing. Indian Rivers has not outlined any undisputed facts to show that, prior to
Franks’s termination, it knew Franks engaged in duplicate or fraudulent billing. The
testimony of Jones and Blackerby indicating that they did not advise Indian Rivers that
Franks billed for an unusually large number of TPRs, gives rise to a genuine issue of material
fact regarding whether Franks actually billed for an unusually large number of TPRs or billed
for duplicate TPRs.
Finally, there is evidence that Robbins treated adversely other employees who had
exercised rights under the FMLA. See, e.g., Principe v. Seacoast Banking Corp. of Florida,
2010 WL 2976766, *3 (S.D. Fla July 20, 2010) (holding that, to the extent a plaintiff seeks
prove FMLA retaliation by circumstantial evidence, FMLA leave taken by other employees
and the treatment of those employees is relevant to the employer’s pattern or practice of
dealing with employees who exercise, or attempt to exercise, their FMLA rights); cf.
Thompson v. Chase Bankcard Servs., Inc., 2010 WL 3365913, *13 (S.D. Ohio Aug. 23,
2010) (considering evidence that “other employees, specifically non-FMLA employees, were
treated differently” than FMLA employees as evidence of pretext). Indian Rivers has neither
sought to rebut nor clarify any of this evidence, which goes beyond simply quarreling with
48
the wisdom of the reasons proffered by Indian Rivers. Accordingly, the court concludes a
rational trier of fact could find that Indian Rivers stated reasons for Franks’s termination
were pretextual. Therefore, Indian Rivers Motion for Summary Judgment on Franks’s
retaliation claim is due to be denied.
2. HIPPA Violation / Invasion Of Privacy
In Phillips v. Smalley Maintenance Services, Inc., 435 So. 2d 705 (Ala. 1983), the
Alabama Supreme Court explained:
It is generally accepted that the invasion of privacy tort consists of four distinct
wrongs: 1) the intrusion upon the plaintiff's physical solitude or seclusion; 2)
publicity which violates the ordinary decencies; 3) putting the plaintiff in a
false, but not necessarily defamatory, position in the public eye; and 4) the
appropriation of some element of the plaintiff's personality for a commercial
use. Norris v. Moskin Stores, Inc., 272 Ala. 174, 132 So.2d 321 (Ala. 1961).
Phillips, 435 So. 2d at 708. Franks’s invasion of privacy claim “is based on her knowledge
that her private medical information was accessed unlawfully by Indian Rivers and Connie
Robbins.”15 (Doc. 38 at 29-31.) The Complaint does not clearly state which wrong Indian
15
Franks’s HIPPA claim was not briefed or argued in opposition to Indian Rivers’
Motion for Summary Judgment. (See doc. 38.) Therefore, the claim is abandoned. See, e.g.,
Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir. 2001) (finding claim abandoned
when argument not presented in initial response to motion for summary judgment); see also
Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326
(11th Cir. 2000) (holding that a failure to brief and argue issue at the district court is sufficient to
find the issue has been abandoned); Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599
(11th Cir. 1995) (finding that grounds alleged in the complaint but not relied upon in summary
judgment are deemed abandoned).
49
Rivers allegedly committed, but the court is of the opinion, based on a review of the
Complaint, that Franks is proceeding under the first two prongs stated in Phillips.
First, one wrongfully intrudes into the physical solitude or seclusion of another when
he or she “intentionally intrudes, physically or otherwise, upon the solitude or seclusion of
another or his private affairs or concerns ... if the intrusion would be highly offensive to a
reasonable person.” Johnston v. Fuller, 706 So. 2d 700, 702 (quoting Restatement (Second)
of Torts § 6528 (1977)). On October 27, 2005, Franks asked Dr. Aftab to access her medical
information to view lab results that she had not yet received from her physician. Franks
alleges that Dr. Aftab thereafter accessed her health information, without consent, on
November 1, 2005 and November 4, 2005. Franks, however, has not presented any evidence
to show that Dr. Aftab’s accessing her medical records on November 1, 2005 and November
4, 2005 was unrelated to her request of October 27, 2005. Although Franks has presented
evidence that Robbins has a history of accessing employee medical records and using those
records to make employment decisions, Franks has no evidence that anyone other than Dr.
Aftab viewed her medical records. Franks’s suspicions are not sufficient to withstand
summary judgment. Therefore, Indian Rivers’s Motion for Summary Judgment is due to be
granted on Franks’s invasion of privacy claim based on intrusion.
Second, the Alabama Supreme Court has explained:
One who gives publicity to a matter concerning the private life of another is
subject to liability to the other for invasion of his privacy, if the matter
publicized is of a kind that
50
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.
Johnston, 706 So. 2d at 703 (quoting Restatement (Second) of Torts § 652D). “Publicity”
means that:
the matter is made public, by communicating it to the public at large, or to so
many persons that the matter must be regarded as substantially certain to
become one of public knowledge.... Thus, it is not an invasion of the right of
privacy, within the rule stated in this Section, to communicate a fact
concerning the plaintiff’s private life to a single person or even to a small
group of persons.
Id. (quoting Restatement (Second) of Torts § 652D cmt. a (1977)).
Like her intrusion claim, Franks’s publicity claim also fails. Franks has not presented
any evidence from which a rational trier of fact could find that Dr. Aftab shared her medical
information with anyone. Franks does not allege that her health information was made public
by Dr. Aftab or any other agent or employee of Indian Rivers. Therefore, the Motion for
Summary Judgment filed by Indian Rivers is due to be granted on Franks’s invasion of
privacy claim based on publicity.
Even assuming Franks has stated an invasion of privacy claim sufficient to withstand
summary judgment, the claim is barred by the statute of limitations. (Doc. 38 at 29-31.) The
statute of limitations for a claim of invasion of privacy is two years. Ala. Code § 6-2-38 (l)
(1975). Franks’s cause of action accrued, at the latest, on November 4, 2005, the last date
on which Dr. Aftab viewed her medical records. See Nelson v. Estate of Frederick, 855 So.
51
2d 1043, 1047 (Ala. 2003)(“A cause of action accrues when a party suffers an injury or a loss
or damage entitling him or her to maintain an action.”). Consequently, the applicable two
year limitations period expired on November 4, 2007. Franks did not file the Complaint until
June 10, 2008. (Doc. 1.) Therefore, Indian Rivers Motion for Summary Judgment on
Franks’s invasion of privacy claim is due to be granted.
CONCLUSION
For the foregoing reasons, Franks’s Motion in Limine to Exclude Exhibits
Summarizing Unproduced Evidence, (doc. 31), is due to be granted, Indian Rivers’ Motion
to Strike Plaintiff’s Affidavit, (doc. 42), is due to be granted in part and denied in part, and
Indian Rivers’ Motion for Summary Judgment, (doc. 34), is due to be granted in part and
denied in part. An Order in accordance with this Memorandum Opinion will be entered
contemporaneously herewith.
DONE, this 30th day of September, 2012.
SHARON LOVELACE BLACKBURN
CHIEF UNITED STATES DISTRICT JUDGE
52
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