Dobbs v. Lakeland Community Hospital LLC

Filing 31

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 9/21/2015. (PSM)

FILED
2015 Sep-21 PM 03:43
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
SANDRA DOBBS,
Plaintiff,
vs.
LAKELAND COMMUNITY
HOSPITAL, LLC,
Defendant.

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7:14-cv-01363-LSC

MEMORANDUM OF OPINION
Plaintiff Sandra Dobbs (“Dobbs”), a former employee of Defendant
Lakeland Community Hospital (the “Hospital”), brought this action alleging
violations of the Age Discrimination in Employment Act (“ADEA”) and the
Family and Medical Leave Act (“FMLA”). The Hospital has moved for summary
judgment, and for the reasons discussed below, the Hospital’s motion is due to be
granted.
I.

Background
Plaintiff Sandra Dobbs worked at Defendant Lakeland Community Hospital

for over thirteen years, beginning in 2000. In 2009, she was promoted to Director
of Infection Control. In 2010, she added the titles of Director of Quality and Risk
Management and Patient Safety Officer. On two different performance reviews in
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2010, Dobbs received generally positive remarks. Dobbs reported to the Hospital’s
Chief Nursing Officer (“CNO”). Helen Vos was the interim CNO and was later
replaced by Cathy Mitchell. Cindy Nichols was the Chief Executive Officer of the
Hospital when Dobbs was terminated.
In August 2012, Dobbs suffered a heart attack. As a result of the heart attack,
Dobbs requested and was approved for FMLA leave. Dobbs returned from her
FMLA leave after approximately two weeks. In November of that year, Dobbs
requested and was approved for another FMLA leave due to back surgery. While
she was on leave, Dobbs says that she felt obligated to work. She stated in her
deposition:
I actively volunteered through correspondence with [Nichols] . . . to
come on in and be there so I could produce my material for the SRA.
And . . . I wasn’t given that opportunity, and then I sent a itemized list
to them telling them what binders [certain reports] were in . . . .
(Dobbs Dep. 172:23 to 173:1–8). Moreover, Dobbs emailed Nichols hoping she
could return early and asking if she could schedule physical therapy sessions three
times a week when she returned, to which Nichols responded: “That would be fine
Sandy as long as you are in compliance with what is recommended by your
physician and HR okays the return.” (Nichols Dep. Ex. 8). Much of the work
Dobbs felt obligated to do regarded a Survey Readiness Assessment (“SRA”)—a
survey of the Hospital conducted by its parent company evaluating preparation for
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accreditation by the Joint Commission. The SRA reviewed departments under
Dobbs’s supervision, and it noted deficiencies in those areas. Dobbs does not
dispute that the SRA noted deficiencies in areas under her control.
In January 2013, Nichols met with Dobbs and discussed reducing Dobbs’s
job duties. During the meeting, Nichols stated that she heard Dobbs might be
considering retirement and asked how old she was. Nichols and Dobbs agreed to
reduce Dobbs’s job duties and relinquish the titles of Director of Quality and Risk
Management and Patient Safety Officer. Dobbs salary was reduced by five percent
to reflect the reduction in responsibilities. Dobbs does not dispute that she agreed
to the reduction in title and pay. She stated in her deposition that she “felt
overloaded” and that she “didn’t feel like [she] could do as good a job in any
certain one of those five things because each one of those was a very in-depth job
and very time consuming.” (Dobbs Dep. 142: 7–14). When asked if she was “okay
with the redistribution of duties that was discussed at the meeting,” she said
“yes.” (Dobbs Dep. 154: 19–22). Further, she responded “No” when asked,
“They didn’t force you to resign as the Quality and Risk Management Director?”
(Dobbs Dep. 154: 23 to 155: 1–2).
In February of 2013, Helen Vos, the interim CNO, placed Dobbs on a
performance improvement plan based on deficiencies she perceived in Dobbs’s
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performance and the deficiencies in the SRA. Although Dobbs admits that the SRA
noted deficiencies attributable to her, she testified that she had the required
documentation, but that documentation was not provided for the survey while she
was on leave. Further, Dobbs argues that the performance improvement plan was
meant to last ninety days, but the Hospital says that it was ongoing. The
performance improvement plan included a specific list of “Actions” that Dobbs
needed to take. Neither party has provided clear evidence that shows which items
were accomplished and which were not. 1 Vos met with Dobbs on a regular basis to
discuss her progress. Vos stated that Dobbs did not meet the goals in the plan,
although Dobbs thought that she did. Mitchell, who became CNO after Vos, also
met with Dobbs periodically to review her progress. On March 22, 2013, Dobbs
was issued a written warning. The Hospital contends that the warning was for
failing to meet the goals in her performance improvement plan, but Dobbs
contends that the warning was merely a formalization of the performance
improvement plan that should have been delivered in February. At an April 25,
2013 meeting, Mitchell noted that certain items on Dobbs’s performance
improvement plan were complete and others were ongoing. In a memorandum
created after a May 14, 2013 meeting, Mitchell states she “spoke at length with
1

The parties provided copies of the performance improvement plan with notes made under the
“weekly progress” column. However, the exhibits do not show with clarity who wrote the notes
and whether the items were accomplished.
Page 4 of 26

Sandy regarding the issues with this submission and the corrections that would
need to be made. [Mitchell] also spoke with Sandy regarding the importance of
ensuring the information she submits is accurate to the best of her ability. . . .
[Mitchell] told Sandy she was very concerned about the [Infection Control]
program and that [they] would continue meeting and continue her plan until all
aspects of the plan were at or above the standards for an appropriate IC program.”
(Pl.’s Ex. 28).” Dobbs testified at the meeting that Mitchell did not tell her
whether her goals were met. (Pl.’s Ex. 28). Following that meeting, Mitchell
discussed additional disciplinary measures with Katrina Wray, the Director of
Human Resources, who stated that suspension would be the next step in the
disciplinary process. In an email exchange dated May 15, Mitchell and Nichols
discussed Mitchell’s concern about Dobbs placing the emergency room on
diversion 2 and disciplinary measures they might take.
On May 16, Mitchell noticed a nurse taking a patient into the Operating
Room wearing jeans and shoes. The Operating Room was being used for eye
surgeries performed by Dr. Donald McCurdy that day. Dr. McCurdy had
performed those procedures at both Lakeland Hospital and Northwest Medical
Center, Lakeland’s sister hospital, for many years. Mitchell reported her
2

When the emergency room is on diversion, it no longer accepts ambulances and sends those
patients elsewhere.
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observation to Nichols, asserting that allowing patients to wear street clothes into
the Operating Room created a risk of contamination. Nichols discussed this
concern with Dr. Donald McCurdy who related that Lakeland Hospital was the
only place he performed the surgery that allowed patients to wear street clothes.
Dr. McCurdy did, however, testify that other facilities—including Northwest
Medical Center—followed similar procedures. Specifically, he stated that other
hospitals allow patients to wear street clothes but covered those clothes with a
gown. On the same day, May 16, Nichols and Mitchell discussed patients wearing
street clothes with Dobbs. Following this discussion and consultation with other
administrators, Nichols terminated Dobbs. In a subsequent conversation, Shirley
Craig, who was Director of Infection Control before Dobbs, told Nichols that
previous hospital administrators had approved the practice of allowing patients to
wear street clothes into the operating room.
II.

Standard of Review
Summary judgment is appropriate “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). A fact is “material” if it “might affect the
outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). There is a “genuine dispute” as to a material fact “if the
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evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248. The trial judge should not weigh the evidence
but must simply determine where there are any genuine issues that should be
resolved at trial. Id. at 249.
In considering a motion for summary judgment, trial courts must give
deference to the non-moving party by “considering all of the evidence and the
inferences it may yield in the light most favorable to the nonmoving party.” McGee
v. Sentinel Offender Services, LLC, 719 F.3d 1236, 1242 (11th Cir. 2013) (citing Ellis
v. England, 432 F.3d 1321, 1325 (11th Cir. 2005)). In making a motion for summary
judgment, “the moving party has the burden of either negating an essential element
of the nonmoving party’s case or showing that there is no evidence to prove a fact
necessary to the nonmoving party’s case.” Id. Although the trial courts must use
caution when granting motions for summary judgment, “[s]ummary judgment
procedure is properly regarded not as a disfavored procedural shortcut, but rather
as an integral part of the Federal Rules as a whole.” Celotex Corp. v. Catrett, 477
U.S. 317, 327, 106 S. Ct. 2548, 2555 (1986).
III.

Discussion
Dobbs makes three claims against the Hospital. First, Dobbs claims that the

Hospital terminated her employment based on her age in violation of the ADEA.
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Second, she claims that the Hospital retaliated against her for taking approved
leave under the FMLA. Third, Dobbs claims that the Hospital interfered with her
FMLA leave. For the reasons stated below, the Hospital’s motion for Summary
Judgment is due to be GRANTED.
A. ADEA Claim
The ADEA prohibits employers from “discharg[ing] or otherwise
discriminat[ing] against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s age . . . .” 29
U.S.C. § 623(a)(1). The standard in a given case differs depending on whether a
plaintiff produces direct evidence of discrimination or circumstantial evidence
sufficient to allow an inference of discrimination. See Carter v. Three Springs
Residential Treatment, 132 F.3d 635, 641–643 (11th Cir. 1998). Dobbs has not
alleged or produced any direct evidence of discrimination based on age. 3 Instead,
she relies on circumstantial evidence.
In cases where a plaintiff relies on circumstantial evidence, the Eleventh
Circuit applies the burden-shifting scheme first established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Cofield v. Goldkist, Inc., 267 F.3d 1264, 1267
3

Dobbs did testify in her deposition that Nichols asked her about retirement. However, she has
not argued that Nichol’s questioning directly evidences discrimination. Furthermore, an
employer saying that she heard the employee had mentioned retirement is not a statement
“whose intent could be nothing other than to discriminate . . . .” Carter, 870 F.2d at 582.
Page 8 of 26

n.6 (11th Cir. 2001) (“Although the McDonnell Douglas framework originally
applied to Title VII cases, it is now widely accepted that the framework applies to
claims of discrimination under the ADEA as well.”). Under McDonnell Douglas, a
plaintiff carries the initial burden of producing circumstantial evidence sufficient to
prove a prima facie case of discrimination. See Turlington v. Atlanta Gas Light Co.,
135 F.3d 1428, 1432 (11th Cir. 1998). If the plaintiff meets this burden, then the
burden shifts to the defendant to produce evidence of a “legitimate,
nondiscriminatory reason for its actions.” Id. If the defendant produces evidence of
a legitimate reason, then “the plaintiff must establish that the employer’s
articulated legitimate, nondiscriminatory reason was a pretext to mask unlawful
discrimination.” Id. The plaintiff’s burden to establish pretext applies to all of the
defendant’s proffered reasons. Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th
Cir. 2000). Thus, when a defendant proffers more than one reason, a plaintiff fails
to meet this prong if she only establishes pretext as to one of those reasons. Id.
1. Prima Facie Case
A prima facie case alleging wrongful discharge under the ADEA requires a
showing:
(1) that [plaintiff] was a member of the protected group of persons
between the ages of forty and seventy; (2) that [she] was subject to
adverse employment action; (3) that a substantially younger person
filled the position that [she] sought or from which [she] was
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discharged; and (4) that [she] was qualified to do the job for which
[she] was rejected.
Turlington, 135 F.3d at 1432. 4 The Hospital does not contest the first three
elements. Dobbs was sixty-one years old at the time of termination. She was
terminated, and she was replaced by younger persons.
The Hospital does, however, argue that Dobbs was not qualified. A qualified
employee must “satisfy[y] an employer’s objective qualifications.” Vessels v.
Atlanta Independent School System, 408 F.3d 763, 769 (11th Cir. 2005) (Title VII
context). An employee’s “skill and background” often “determine if they were
qualified for a particular position.” Clark v. Coats & Clark, Inc., 990 F.2d 1217,
1227 (11th Cir. 1993). Subjective evidence, in light of evidence showing objective
skill or experience, is typically best saved for the pretext stage. See Young v. General
Foods Corp., 840 F.2d 825, 829 n.3 (11th Cir. 1988) (indicating subjective
assessments of job performance are best addressed at pretext stage).
The undisputed evidence provided by the parties indicates that Dobbs had
the requisite education and experience to hold the position of Director of Infection
Control at the time of her termination. At the time Dobbs was promoted to
4

Moreover, the “plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse
decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 168 (2009). However, this causation
requirement is consistent with the McDonnell Douglas framework. See Sims v. MVM, Inc., 704
F.3d 1327, 1333 (11th Cir. 2013) (“[Requiring but-for causation] is not only consistent with our
pre-Gross case law, but also is entirely consistent with Gross, which expressly left open the
question of whether this application is appropriate.”).
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Director of Infection Control, the job requirements included: current Alabama
Registered Nurse license, minimum of one year experience in a hospital
supervisory position or three years in infection control, membership in the
Association of Practitioners of Infection Control (APIC), and a working knowledge
of microbiology, epidemiology, infectious diseases, aseptic techniques and current
practices. (Mitchell Dep. Ex. 5). Within a month of Dobbs termination, Lakeland
amended the job description for Director of Infection Control, and the Registered
Nurse requirement was removed. The evidence demonstrates that Dobbs worked
at Lakeland as a Registered Nurse before becoming Director of Infection Control.
Further, she stated in a performance evaluation that she intended to maintain her
license. Thus, at her hiring, Dobbs met the qualification that she be a licensed RN.
The evidence does not indicate with clarity whether Dobbs maintained her RN
license when she was terminated, but because the Hospital removed that
requirement for Dobbs’s successor, she need not prove a qualification the Hospital
waived. See Anthony v. BTR Automotive Sealing Systems, Inc., 339 F.3d 506, 515 (6th
Cir. 2003). Additionally, at the time Dobbs was terminated, she had been the
Director of Infection Control, Director of Quality and Risk Management, or Patient
Safety officer for over three years, which sufficiently meets the requirement for one
year of supervisory experience. Further, Dobbs was a member of APIC when she
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was terminated. (Dobbs Dep. 29: 10–12; Nichols Dep. 254: 15–17). When she first
began as Director of Infection Control, Dobbs attended training on infection
control, and she testified in her deposition that she made an effort to keep up with
best practices regarding infection control. (Dobbs Dep. 30: 10–23). Although the
Hospital has presented evidence of negative assessments of Dobbs work, 5 it has
provided no evidence disputing Dobbs’s objective qualifications. Accordingly,
Dobbs possessed the minimum qualifications necessary to perform as Director of
Infection Control. As such, she has demonstrated a prima facie case alleging
wrongful discharge under the ADEA.
2. Proffered Legitimate Reasons and Pretext
The burden thus shifts to the Hospital to offer a legitimate, nondiscriminatory reason for Dobbs’s termination. This burden is “exceedingly light”
because it is a burden of production, not persuasion. Walker v. NationsBank of
Florida N.A., 53 F.3d 1548, 1556 (11th Cir. 1995). Here, the Hospital has met that
burden by proffering two reasons for the termination. First, the Hospital says that
Dobbs failed to correct the unsanitary practice of allowing patients to wear street

5

The Hospital argues that Dobbs was not qualified because: (1) she was placed on a performance
improvement plan based on deficiencies from the SRA, (2) Cindy Nichols’s conversation with
Dobbs expressing concerns about her performance, (3) a written warning issued to Dobbs, and
(4) Cathy Mitchell’s conversation with Dobbs expressing concerns about her performance.
However, such subjective “concerns about . . . performance are more appropriately raised as part
of the second and third steps of the McDonnell Douglas scheme.” Clark, 990 F.2d at 1227.
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clothes into the operating room on eye surgery days. Second, the Hospital says that
Dobbs failed to meet the goals outlined in her performance improvement plan.
Since the defendant met the burden of producing a legitimate, nondiscriminatory reason for termination, the burden shifts back to the plaintiff to
show that the defendant’s proffered reason is mere pretext for illegal
discrimination. See Turlington, 135 F.3d at 1432. Pretext can be demonstrated
“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.” Kragor v. Takeda Pharmaceuticals America,
Inc., 702 F.3d 1304, 1308 (11th Cir. 2012) (quoting Texas Dept. of Community Affairs
v. Burdine, 450 U.S. 248, 256 (1981)). “When a plaintiff chooses to attack the
veracity of the employer’s proffered reason, ‘[the] inquiry is limited to whether the
employer gave an honest explanation of its behavior.’” Kragor, 702 F.3d at 1310–
1311.
Dobbs offers five theories of the Hospital’s alleged pretext. First, Dobbs
argues that the Hospital’s purported reasons for termination are inconsistent with
the termination form. However, the termination form notes the Hospital’s concern
about allowing patients wearing street clothes into the operating room. Further, the
statement, “Discussed Sandy’s action plan to date,” is consistent with the
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Hospital’s claim that Dobbs failed to adequately complete her performance
improvement plan. No additional specificity in the termination form is required.
See Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1377 (11th Cir. 1996) (holding
that providing additional detail is not inconsistent with a general reason given in a
written termination).
Second, Dobbs argues that a genuine issue of material fact is raised
because the parties disagree when the performance improvement plan ended.
Dobbs says that it ended after ninety days, while the Hospital says that it was
ongoing. However, a dispute about the timing of the plan does not demonstrate a
dispute about the veracity of the Hospital’s assessment of Dobbs’s
accomplishment of the goals of the plan. Even if the performance improvement
plan ended after ninety days, as Dobbs contends, the Hospital could still truthfully
assert that she did not meet her goals. The performance improvement plan
included a specific list of “Actions” that Dobbs needed to take. Neither party has
provided clear evidence that shows which items were accomplished and which
were not. The parties provided evidence showing that Dobbs and Mitchell met on
April 25, 2013 where Mitchell noted that certain items were completed and others
were ongoing or needed to be completed prospectively. Further, Mitchell and
Dobbs met on May 14, 2015. In that meeting, Dobbs brought most of the items
Page 14 of 26

Mitchell requested. Mitchell then pointed out issues with some of the items—
which Dobbs testified were clerical—and stated that she “was very concerned
about the IC program” and that she considered the infection control program
below “the standards for an appropriate IC program.” In response to questioning
in her deposition about whether Mitchell told her at the May 14, 2013 meeting that
she had met her goals, Dobbs said, “She didn’t say.” However, even if Mitchell
did not express her assessment of Dobbs performance in the meeting, she included
it in a memorandum. Dobbs has not demonstrated why that assessment in the
memorandum is false or pretextual. She has not presented any evidence showing
that the infection control program was up to standard or that Mitchell was not
being truthful in her assessment. Absent such evidence, Dobbs has failed to meet
her burden of showing how the Hospital’s proffered reason for terminating her was
pretextual.
Dobbs third theory of pretext is that the Hospital failed to follow its own
progressive discipline policies when it terminated her instead of suspending her,
which the Hospital does not dispute. An employer’s “[departure] from normal
procedures may be suggestive of discrimination” in some instances. Morrison v.
Booth, 763 F.2d 1366, 1374 (11th Cir. 1985) (holding that failing to seek flexibility for
promotion of a black employee when flexibility was sought for white employees was
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suggestive of discrimination in racial discrimination case). However, “[s]tanding
alone, deviation from a company policy does not demonstrate discriminatory
animus.” Mitchell v. USBI Co., 186 F.3d 1352, 1355–1356 (11th Cir. 1999). A
plaintiff must further demonstrate that the deviation from policy was somehow
linked to her protected status. See id.; E.E.O.C. v. Texas Instruments, Inc., 100 F.3d
1173, 1182 (5th Cir. 1996) (finding that deviation from policy was not evidence of
pretext absent a nexus to the plaintiff’s age). Dobbs has not provided any evidence
demonstrating different treatment of other younger employees or that she was
otherwise treated differently because of her age. Accordingly, Dobbs’s argument
that a failure to follow normal discipline policy fails.
Dobbs’s fourth theory argues that both Nichols and Mitchell were in
supervisory positions at Lakeland’s sister hospital, Northwest Medical Center,
when, as a matter of practice, patients presented to the operating room in street
clothes for cataract surgery performed by Dr. McCurdy. Nichols was Chief
Nursing Officer at Northwest between 2002 and 2012, and Mitchell was the
Director of Infection Control between 2006 and 2010 and the Operating Room
Director between 2012 and 2013. (Nichols Dep. 30: 15–19; Mitchell Dep. 33: 1–22).
Both stated in their depositions that they were not aware of any patients brought to
the operating room in street clothes. However, Dr. McCurdy, who began
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performing that procedure in 1995 and still performed it as of the date of his
deposition, stated that for as long as he could remember, patients presented to the
operating room in street clothes, although they were covered in gowns. (McCurdy
Dep. 15: 1–19). Arguably, Mitchell and Nichols, having worked in supervisory roles
in those facilities, could have known what attire patients wore in the operating
room. However, those patients’ street clothes were always covered with hospital
gowns and thus somewhat different than at Lakeland Community Hospital, where
some patients were covered in gowns and some were not. Dobbs contends that
since Mitchell and Nichols knew of a similar practice at the other hospital, then a
jury could find that Mitchell and Nichols terminated Dobbs for the improper
reason, not for allowing conduct that they also allowed while at another hospital.
Dobbs argument is that this inconsistent application of policy demonstrates that
Nichols and Mitchell might not have been truthful when they say they terminated
Dobbs based on patients wearing street clothes into the operating room.
Finally, Dobbs argues that the Hospital’s “true motive is seen in an email
where they discussed the fact that Dobbs had placed the emergency room on
diversion.” (Pl.’s Br. At 25). This email exchange between Nichols and Mitchell
discussed Dobbs’s decision to place the emergency room on diversion, their
disapproval of that decision, and the possibility of taking away Dobbs’s authority to
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order diversion. This evidence is not sufficient to prove pretext. The email
exchange does not bring into question the veracity of Nichols’s and Mitchell’s
reliance on their perception that Dobbs failed to meet the goals in the performance
improvement plan. Viewed in a light most favorable to Dobbs, the email exchange
only shows that Nichols and Mitchell disapproved of Dobbs’s decision concerning
diversion and that they considered remedial measures. Moreover, Mitchell
documented her concern about Dobbs’s performance improvement plan the day
before the email exchange. Thus, the memorandum would evidence how Mitchell
did not fabricate her disapproval of Dobbs’s performance improvement in response
to the emergency room diversion. Further, the email exchange does not “directly . .
. persuad[e] the court that a discriminatory reason more likely motivated the
employer” because the email exchange does not demonstrate discrimination.
Kragor, 702 F.3d at 1308. If anything, Dobbs placing the emergency room on
diversion would have been an additional non-pretextual and non-discriminatory
reason for terminating Dobbs.
Even if this court were to find that Dobbs sufficiently produced evidence to
find that terminating her based on allowing patients into the operating room in
street clothes was pretextual, she failed to impeach the Hospital’s other reason for
termination. Dobbs did not show how the Hospital was not truthful when it stated
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that Dobbs did not meet the goals in her performance improvement plan. When a
defendant articulates more than one reason for termination, the plaintiff must
“create a genuine issue of material fact regarding whether each of the defendant
employer’s articulated reasons is pretextual.” Chapman, 229 F.3d at 1024. Thus,
the Defendant’s Motion for Summary Judgment is due to be GRANTED on
Plaintiff’s ADEA claim.
B. FMLA Claims
The Family and Medical Leave Act (“FMLA”) entitles eligible employees
to leave from work for certain reasons, including when the employee is suffering
from a “serious health condition” that prevents her from performing her job. See
29 U.S.C. § 2612(a)(1)(D). If an employee takes leave for a protected reason, she
has the right to return to work and be “restored . . . to the position of employment
held” before the leave was taken. 29 U.S.C. § 2614(a). “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 (FMLA) . . . and
retaliation claims, in which an employee asserts that his employer discriminated
against him because he engaged in activity protected by the [FMLA].” Strickland v.
Water Works and Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1206 (11th Cir.
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2001). An interference claim only requires the employee to demonstrate that she
was entitled to a benefit that was subsequently denied. Id. at 1207. A retaliation
claim, on the other hand, requires the employee to demonstrate that her employer
intentionally discriminated against her in the form of an adverse employment
action for exercising an FMLA right. Id. “In other words, a plaintiff bringing a
retaliation claim faces the increased burden of showing that his employer’s actions
‘were motived by an impermissible retaliatory or discriminatory animus.’” Id. at
1207. (quoting King v. Preferred Technical Group, 166 F.3d 887, 89 (7th Cir. 1999)).
1. Retaliation Claim
As with the ADEA, the Eleventh Circuit applies the McDonnell Douglas
burden shifting framework for FMLA retaliation claims. See Brungart v. BellSouth
Telecomms., Inc., 231 F.3d 791, 798 (11th Cir. 2000). The plaintiff must establish a
prima facie case of discrimination by showing that: “(1) [s]he engaged in statutorily
protected activity;6 (2) [s]he experienced an adverse employment action; and (3)
there is a causal connection between the protected activity and the adverse action.”
Hurlbert v. St. Mary’s Health Care System, Inc., 439 F.3d 1286, 1297 (11th Cir.
2006). If the plaintiff’s burden is met, the defendant must then proffer a legitimate
reason for the action, at which point the plaintiff must show those reasons are

6

The Hospital does not dispute that Dobbs took FMLA leave on two different occasions.
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pretextual. Id.
Generally, demotions and reductions in pay are adverse employment actions.
See Graham v. State Farm Mutual Ins. Co., 193 F.3d 1274, 1284 (11th Cir. 1999)
(“[A]ctions such as . . . demotions . . . are actionable under the retaliation
clause.”). However, a voluntary employment action, in many cases, does not
constitute an adverse employment action sufficient to support a prima facie case of
discrimination. See Graham, 193 F.3d at 1284 (holding that a voluntary resignation
was not an adverse employment action); Simpson v. Borg-Warner Automotive, Inc.,
196 F.3d 873, 876 (7th Cir. 1999) (finding no adverse employment action where
plaintiff “sought the downgrade”).
A plaintiff can meet the causation requirement by establishing that the
FMLA leave and the adverse action were not “wholly unrelated.” Goldsmith v.
Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993). “[A] plaintiff satisfies this element if
he provides sufficient evidence that the decision-maker became aware of the
protected conduct, and that there was a close temporal proximity between this
awareness and the adverse . . . action.” Shotz v. Plantation, 344 F.3d 1161, 1180 n.30
(11th Cir. 2003). While a one month gap in time may suffice to prove causation, see
Donnellon v. Fruehauf Corp., 794 F.2d 598, 601 (11th Cir. 1986), a three to four
month gap in time is generally too remote to meet the causation requirement. See
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Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004).
a. Reduction in Title and Pay
Dobbs argues that the Hospital retaliated against her by reducing her title
and pay in January of 2013. Since she took FMLA leave in August, November, and
December of 2012, she has arguably presented evidence sufficient to make out a
prima facie case of FMLA retaliation. The Court questions whether the reduction
in title and pay was adverse. Dobbs did not actively seek her reduction in title and
pay, but she did indicate agreement. She stated in her deposition that she “felt
overloaded” and that she “didn’t feel like [she] could do as good a job in any
certain one of those five things because each one of those was a very in-depth job
and very time consuming.” (Dobbs Dep. 142: 7–14). When asked if she was “okay
with the redistribution of duties that was discussed at the meeting,” she said
“yes.” (Dobbs Dep. 154: 19–22). Further, she responded “No” when asked,
“They didn’t force you to resign as the Quality and Risk Management Director?”
(Dobbs Dep. 154: 23 to 155: 1–2). However, despite this apparent agreement to the
reduction in title and pay, the Court will assume for further discussion that the
action was adverse.
Dobbs returned from FMLA leave in early December 2012 and then met
with Nichols on January 17, 2013 where her title and pay were reduced—a period
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slightly greater than a month. Because of this close proximity in time to her leave
and because Nichols knew about her FMLA leave, Dobbs sufficiently demonstrates
causation. Having assumed, for discussion purposes only, an adverse employment
action, Dobbs has met the initial burden of proving a prima facie case of
discrimination.
Even if Dobbs’s reduction in title and pay was adverse, Dobbs failed to show
that the Hospital’s reason for demoting her was pretextual. The Hospital’s
proffered reason for the action was that Dobbs was overwhelmed with her many
responsibilities, and Dobbs own deposition testimony supports that reason. In the
statements quoted above, Dobbs noted that she was overwhelmed and that she felt
she could not do all of her jobs well. Dobbs has not presented any evidence showing
that she was not overwhelmed or the reason given by the Hospital was not truthful.
Thus, Dobbs retaliation claim regarding her reduction in title and pay fails.
b. Termination
Dobbs additionally argues that her termination was in retaliation for her
FMLA leave. However, she has failed to prove that her termination is causally
related to her leave. Here, although both Nichols and Mitchell knew about Dobbs
FMLA leave, the length of time between the leave and her termination was too
great. Dobbs returned from her second leave in early December of 2012, and she
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was terminated in May of 2013—a period of approximately five months. A five
month gap in time is far too remote to imply causation. See Higdon, 393 F.3d at
1220 (finding a three month gap in time too remote).
Furthermore, as with her ADEA claim, Dobbs failed to show that all of the
Hospital’s proffered reasons for termination were pretextual. She failed to show
that Nichols and Mitchell were not truthful when relying on Dobbs’s failure to
adequately complete her performance improvement plan, as discussed above in
Part III(A)(2). Thus, even if Dobbs could establish a prima facie case of FMLA
retaliation, her claim fails. Accordingly, the Court finds that Defendant’s motion
for Summary Judgment is due to be GRANTED on Plaintiff’s FMLA retaliation
claim.
2. Interference Claim 7
To prove an interference claim, a plaintiff “need only demonstrate by a
preponderance of the evidence that he was entitled to the benefit denied.”
Strickland, 239 F.3d at 1207. An employee does not have to prove “that his
employer intended to deny the benefit . . . .” Hurlbert, 439 F.3d at 1293. Requiring
an employee to work while on leave might constitute interference with leave in
7

The Hospital argues that Dobbs first asserted her Interference claim in the Status Report (Doc.
15) submitted to the Court and that the Court should not permit a new cause of action at this
stage of the litigation. This assertion is not correct, as Dobbs did raise Interference in her
complaint. (Doc. 1 at 2–3, ¶ 7 and 9, ¶ 37).
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some instances. See Arban v. West Pub. Corp., 345 F.3d 390, 402 (6th Cir. 2003)
(upholding jury finding of interference where employer asked employee to perform
work while on leave). However, de minimis contacts—such as asking where
documents are located—do not constitute interference. See, e.g., Sabourin v.
University of Utah, 676 F.3d 950, 961 (10th Cir. 2012) (finding that requests for
items taken home by an employee on leave did not constitute interference);
Daugherty v. Wabash Center, Inc., 577 F.3d 747, 751 (7th Cir. 2009) (finding that
requests for keys and passwords did not constitute interference).
Dobbs argues that the Hospital interfered with her FMLA leave because she
felt obligated to work. However, she testified in her deposition that she “actively
volunteered” to work. Dobbs provided no evidence showing that anyone at the
Hospital asked her to work, other than being asked where certain documents were
located. The request for the location of documents was de minimis and essential to
the operation of the Hospital, and any work done appears, from the undisputed
evidence, to be voluntary. Thus, Dobbs failed to provide evidence showing the
Hospital interfered with her FMLA leave by requiring her to work. Accordingly,
the Court finds that Defendant’s motion for Summary Judgment is due to be
GRANTED on Plaintiff’s FMLA interference claim.
IV.

Conclusion
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For the foregoing reasons, Lakeland Community Hospital, LLC’s motion for
summary judgment is due to be GRANTED in whole. Sandra Dobbs failed to
provide evidence sufficient to show discrimination under the ADEA, retaliation
under the FMLA, and interference under the FMLA.
A separate order will be entered.
Done this 21st day of September 2015.

L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
182185

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