Powell v. Gentiva Health Services, Inc.

Filing 72

ORDER granting 59 Motion for Summary Judgment. There being no genuine issues of material fact as to any claim or cause of action asserted herein, this action is dismissed with prejudice. Signed by Chief Judge William H. Steele on 2/12/2014. (adk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
GINA POWELL,
Plaintiff,
v.
GENTIVA HEALTH SERVICES, INC.,
Defendant.

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CIVIL ACTION 13-0007-WS-C

ORDER
This matter comes before the Court on defendant’s Motion for Summary Judgment (doc.
59). The Motion has been briefed and is now ripe for disposition.
I.

Background Facts.
The relevant facts are largely undisputed, at least for summary judgment purposes.1

Plaintiff, Gina Powell, worked for defendant, Gentiva Health Services, Inc., for almost exactly
one year, from November 1, 2010, through November 2, 2011. (Powell Dep. (doc. 63, Exh. B),
at 28-29; Merrell Aff. (doc. 63, Exh. C), ¶ 9.) Gentiva’s termination of Powell’s employment
lies at the heart of this litigation. In her Amended Complaint, Powell alleges that Gentiva fired
her “on the basis of her disability, morbid obesity, in violation of her rights pursuant to the
Americans with Disabilities Act, 42 U.S.C. Section 12112(a).” (Doc. 17, ¶ 10.) Evaluation of
this claim requires careful review of record facts concerning Powell’s job duties, her physical
1

The Court is mindful of its obligation under Rule 56 to construe the record,
including all evidence and factual inferences, in the light most favorable to the nonmoving party.
See Skop v. City of Atlanta, GA, 485 F.3d 1130, 1136 (11th Cir. 2007). Thus, plaintiff’s evidence
(to the extent she offers any) is taken as true and all justifiable inferences are drawn in her favor.
Also, federal courts cannot weigh credibility at the summary judgment stage. See Feliciano v.
City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir. 2013) (“Even if a district court believes that
the evidence presented by one side is of doubtful veracity, it is not proper to grant summary
judgment on the basis of credibility choices.”). Therefore, the Court will “make no credibility
determinations or choose between conflicting testimony, but instead accept[s] Plaintiff’s version
of the facts drawing all justifiable inferences in [her] favor.” Burnette v. Taylor, 533 F.3d 1325,
1330 (11th Cir. 2008).

condition, her performance, Gentiva’s corrective action, and the reasons given by Gentiva for her
dismissal.
A.

Powell’s Employment and Physical Condition.

Gentiva is in the business of providing hospice services to terminally ill patients.
(Merrell Dep. (doc. 63, Exh. A), at 6-8.) As an Account Executive for Gentiva, Powell’s job was
to call on physicians, hospitals, and various assisted living and senior living facilities within her
assigned territory to solicit new accounts and promote hospice referrals. (Powell Dep., at 37-39.)
In essence, Powell functioned as a “field salesperson.” (Merrell Dep., at 9.) Gentiva expected
Powell and other account executives to make 10 to 12 sales calls per day, educating and giving
information to potential referral sources. (Id. at 10.) Powell was assigned a specific sales
territory with a specific account list. (Id. at 13.) Gentiva measured account executives’
productivity by comparing the monthly number of hospice admissions they generated to a
territory-specific benchmark target. (Id. at 14-15.) Gentiva also gauged productivity by
reviewing account executives’ call documentation, which specified the particular sales calls each
salesperson made each day. (Id. at 20-21.)2
Powell stands at 5’3” and, during the period of her employment at Gentiva, she weighed
approximately 230 pounds. (Powell Dep., at 115.) Plaintiff does not recall ever reporting to
anyone at Gentiva that (i) she was obese, or (ii) her weight interfered with her ability to perform
her job duties. (Id. at 114-15, 127.) Powell has never received a medical diagnosis of obesity or
morbid obesity, although a doctor’s report in 1990 characterized her as a “[s]omewhat
overweight white female.” (Id. at 118-19.) With respect to her weight, plaintiff testified, “I
know I’m overweight. I’m not an idiot.” (Id. at 119.) Nonetheless, Powell is unaware of any
underlying medical condition that has caused or contributed to her “overweight” status, nor does
she contend that her weight caused or created other health conditions. (Id. at 121, 128.) During
her employment at Gentiva, Powell did not participate in any “diet program,” but she did walk
her dog or walk on a treadmill for distances of approximately one mile approximately three days
2

Documenting sales calls in this manner also enabled account executives to track
the status of particular referral sources to allow for appropriate follow-up. (Id. at 22-23.) In
Gentiva’s business, “[a] sales call is cumulative.” (Id. at 22.) A referral might not happen in a
single meeting, but instead might require multiple follow-up contacts by the account executive
over a period of time before coming to fruition.

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per week. (Id. at 122-24.) When asked whether her weight impacted her ability to do her job at
Gentiva, Powell testified, “Absolutely not.” (Id. at 126.) Thus, plaintiff’s evidence is that her
weight neither interfered with her ability to perform required tasks for her job nor impaired her
ability to care for herself or engage in day-to-day activities. (Id. at 126-27.)
B.

The Corrective Counseling Meeting.

In approximately August 2011, Alease Merrell, Area Vice President of Sales for Gentiva,
became responsible for managing Gentiva’s sales force of five or six account executives in
Mobile, Alabama, including Powell. (Merrell Aff., ¶¶ 3-4.) Merrell had not been involved in
Powell’s hiring, and was largely unfamiliar with her work performance prior to becoming her
supervisor. (Merrell Dep., at 37, 41-42.) In preparation for this new direct supervisory role,
Merrell reviewed Powell’s record and concluded that she was “overall not meeting performance
expectations.” (Id. at 43-44.) Specifically, Merrell observed that Powell and one other account
executive (Stephanie Buehler) were “missing their attainment pretty significantly” (id. at 46),
meaning that they were not meeting their monthly sales targets. With respect to Powell, Merrell
also was concerned that she was not keeping documentation of sales calls in Gentiva’s SAMi
software system. (Id. at 53-54.) When Merrell confronted her about the documentation problem,
Powell indicated that she “was having IT issues.” (Id. at 55.) However, further investigation by
Merrell revealed that Powell had not requested help from Gentiva’s information technology
department and indeed had not even attempted to log in to the SAMi system for lengthy
intervals. (Id. at 55-56.)3
Merrell’s concerns about Powell’s performance intensified over time. In Merrell’s
assessment, “her performance continued to decline … and the call documentation obviously was
not there.” (Merrell Dep., at 57.) Merrell observed that Powell “seemed to be struggling in her
role.” (Id. at 60.) On October 12, 2011, Merrell conducted a corrective action meeting with
Powell to address these issues. (Id. at 57.) At that time, Powell had failed to meet her goal
attainment for eight consecutive months, including a marked further decline in the most recent
three-month period. (Id. at 61.) The stated purpose of this October 12 session was to impress
3

In her deposition, Powell sought to explain this performance deficiency by
stating, “I’m computer illiterate.” (Powell Dep., at 85.) However, she acknowledged, “I
remember getting SAMi training” and conceded that she was unaware of any co-workers
experiencing trouble with the SAMi software system. (Id. at 81, 85.)

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upon Powell “that her performance was not meeting expectations, and that that could lead to
termination of her position.” (Id. at 63.)
At the October 12 meeting, Merrell issued a written Corrective Counseling Record to
Powell. (Powell Dep., at 91-92; Merrell Aff., ¶ 5 & Exh. A.) This document reflected, in part,
as follows: (i) that Powell had failed to meet expectations with regard to call activity
documentation via SAMi; (ii) that there was a “discrepancy” between Powell’s explanation of
her IT issues and system reports that she had not even been attempting to log on; and (iii) that
Powell’s sales performance had “declined significantly” in recent months. (Merrell Aff., Exh.
A.) The Corrective Counseling Record concluded that “[a]dditional corrective counseling or
termination could result if immediate improvement is not demonstrated in the above outlined
performance deficits.” (Id.) At the end of the document, a “Follow-Up Date” of November 14,
2011 was specified. (Id.)
During the October 12 meeting, Merrell went over each of these performance issues with
Powell. Of central importance to this lawsuit, Merrell also informed Powell that “not only was
the SAMi not up to par, but [her] dress and [her] appropriateness was not up to par, and that she
wasn’t even going to discuss the weight issue at this time.” (Powell Dep., at 91.) According to
Powell, Merrell’s comment was “[t]hat she wasn’t going to discuss the weight issue with me and
that my jewelry and clothing were inappropriate and that’s why my numbers were low.” (Id. at
146, 102.) Merrell testified that the context for this remark was her perception that Powell’s
“attire was inappropriate and unprofessional … [a]nd it was at a point where we needed to talk
about it.” (Merrell Dep., at 66.)4 So Merrell indicated during the October 12 meeting that
Gentiva expected employees to wear professional attire and present a professional appearance.
(Id. at 66-67.) Powell responded, “I think my clothing choices are cute. … I’ve put on weight
recently, so I’ve been trying to dress cuter.” (Id. at 72.) Powell also stated to Merrell, “Not
everybody can be as little as you.” (Id.) Merrell’s rejoinder was that Powell’s weight was
4

The record shows that Gentiva managers had noticed Powell’s penchant for
unconventional dress for some time. (Merrell Dep., at 66-70.) For example, one day Powell
reported to work in gray and white striped tights, a leopard-print skirt, a headband adorned with
feathers, “flamboyant shoes,” and a “[l]ong-haired sweater with a very large gemstone broach in
the center.” (Id. at 68.) Merrell believed that such clothing and accessories created a distraction
from Powell’s function of marketing Gentiva’s hospice services to doctors and other health-care
professionals, as well as families of terminally ill patients.

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irrelevant, because the issue was professional attire. (Id. at 73.) It was in that context that the
“not even going to discuss the weight issue” comment was made.5 At any rate, Merrell made no
other references to Powell’s weight during the October 12 meeting. (Powell Dep., at 103, 10607; Merrell Dep., at 72-75.) And Powell does not recall any other Gentiva employee on any
other occasion making any derogatory comment about her weight. (Powell Dep., at 114.)
In Merrell’s view, during the time of her employment at Gentiva, Powell was an
“average-size person” who did not appear to be obese. (Merrell Dep., at 73.) Merrell did not
perceive Powell to be “a person with a weight problem” and never discussed Powell’s weight
with Gentiva’s human resources or upper management in preparation for the October 12
meeting. (Id. at 73-74.) Merrell testified, “I did not make any decisions based on Ms. Powell’s
weight. I didn’t bring it up, she did. It was an inconsequential matter. I didn’t think about it
because … it had no relevance in any decision that I made about her.” (Id. at 83.)
C.

Termination of Powell’s Employment.

At the conclusion of the October 12 meeting, Powell’s understanding was that she “had
30 days to improve.” (Powell Dep., at 99.) Merrell and other Gentiva officials told her
repeatedly, “you have 30 days to improve.” (Id. at 99, 106.) Notwithstanding Powell’s
understanding,6 Merrell elected to take decisive action within a shorter time frame based on a
pair of developments. First, Merrell observed that in the weeks following the October 12
meeting, Powell “failed to show improvement in her sales and continued to seem disengaged
with regard to her sales efforts,” to the point of failing to retrieve and utilize sales materials
5

The foregoing is Merrell’s account of her discussion with Powell at the October
12 corrective counseling meeting as it relates to the topic of weight. Of course, for summary
judgment purposes, the record is construed in the light most favorable to Powell and her version
of the facts must be accepted as true. But Powell’s response in her deposition to a query as to
whether she (Powell) had initially brought up the issue of her weight during the meeting was, “I
don’t remember that.” (Powell Dep., at 102.) Plaintiff does not deny or rebut Merrell’s account
of these facts, much less offer an alternative narrative creating a disputed issue of fact that must
be resolved in Powell’s favor for purposes of a summary judgment analysis. For that reason, the
Court credits Merrell’s uncontroverted narrative on this point.
6

Merrell testified that this understanding was inaccurate. According to Merrell, the
message conveyed at the October 12 meeting was that Gentiva would follow up with Powell in
30 days, but that “doesn’t mean that things can’t happen in those 30 days.” (Merrell Dep., at 89.)
Merrell’s testimony was emphatic that the 30-day follow-up period did not mean that Powell was
immune from adverse personnel action during that interval. (Id. at 89, 93-96.)

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provided by Gentiva for an ongoing sales promotion. (Merrell Aff., ¶ 6.) Tellingly, Powell only
made seven admissions for the month of October, versus a monthly target of 15 admissions. (Id.,
¶ 10.) Second, Merrell was told on two occasions by Gentiva employees that Powell had made
misrepresentations that Merrell had declared that Powell would receive credit for home health
admissions from outside her territory, when in fact Merrell had said no such thing. (Id., ¶¶ 7-8.)
In fact, Powell was only supposed to receive credit for home health accounts that originated in
her assigned sales territory. (Id.) Merrell viewed this conduct by Powell as demonstrating “a
very kind of blatant disregard for the truth.” (Merrell Dep., at 79.) After consultation with other
Gentiva officials, Merrell decided to terminate Powell’s employment for these reasons. (Merrell
Aff., ¶ 9; Merrell Dep., at 77-80.)
On or about November 2, 2011, Powell was summoned to a meeting with Merrell and
others. At that time, Powell was told, “As of today, you are no longer employed at Gentiva
Hospice.” (Powell Dep., at 131.) Merrell elaborated, “You misquoted me and now you’re going
to be let go.” (Id.) Powell denies recalling any other details about the meeting. (Id. at 131-32.)
For her part, however, Merrell contends that she discussed all of the aforementioned issues with
Powell at the termination meeting. (Merrell Dep., at 84.)
Powell was not the only Account Executive at Gentiva’s Mobile location whose
employment was terminated for poor performance during that time period. Just weeks before
Powell was fired, Gentiva discharged Stephanie Buehler based on her work performance.
(Powell Dep., at 128.) Buehler is “[a]bsolutely not” overweight, in Powell’s estimation. (Id. at
129.) Merrell echoed that Buehler is not obese, that she is “[t]all and very thin,” and that she was
fired three weeks before Powell because of poor and declining sales performance. (Merrell Dep.,
at 99-101.)
II.

Summary Judgment Standard.
Summary judgment should be granted only “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.” Rule
56(a), Fed.R.Civ.P. The party seeking summary judgment bears “the initial burden to show the
district court, by reference to materials on file, that there are no genuine issues of material fact
that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
Once the moving party has satisfied its responsibility, the burden shifts to the non-movant to
show the existence of a genuine issue of material fact. Id. “If the nonmoving party fails to make

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'a sufficient showing on an essential element of her case with respect to which she has the burden
of proof,' the moving party is entitled to summary judgment.” Id. (quoting Celotex Corp. v.
Catrett, 477 U.S. 317 (1986)) (footnote omitted). “In reviewing whether the nonmoving party
has met its burden, the court must stop short of weighing the evidence and making credibility
determinations of the truth of the matter. Instead, the evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBHSiegen, 965 F.2d 994, 999 (11th Cir. 1992) (internal citations and quotations omitted).
“Summary judgment is justified only for those cases devoid of any need for factual
determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir. 1987)
(citation omitted).
The Eleventh Circuit has expressly rejected the notion that summary judgment should
seldom be used in employment discrimination cases because they involve issues of motivation
and intent. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079 (11th Cir. 2004). Rather, “the
summary judgment rule applies in job discrimination cases just as in other cases. No thumb is to
be placed on either side of the scale.” Id. at 1086 (citation omitted); see also Williamson v.
Clarke County Dep't of Human Resources, 834 F.Supp.2d 1310, 1318 (S.D. Ala. 2011)
(recognizing and applying rule that summary judgment standard is applied equally in
employment discrimination cases as in other kinds of federal actions).
III.

Analysis.
A.

Plaintiff Has Not Shown that Her Obesity is a Disability.

As framed in the single-count Amended Complaint, plaintiff’s claim is that defendant
violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (“ADA”), by
discriminating against her based on a disability.7 The Amended Complaint alleges that
7

This analysis applies the ADA as amended by the ADA Amendments Act of
2008, Pub.L. No. 110-325, 122 Stat. 3553 (“ADAAA”), which took effect on January 1, 2009.
As described supra, all relevant events underlying Powell’s ADA claim took place in 2011, well
after the ADAAA’s effective date. Defendant admits that the post-ADAAA version of the ADA
governs. (See doc. 63, at 13.) Accordingly, pre-ADAAA authorities are helpful here only
insofar as they do not conflict with provisions of the ADAAA, which effectively liberalized the
scope of the ADA after a series of Supreme Court cases narrowed such coverage beyond the
parameters desired by Congress. For that reason, the authorities cited by movant will not be
considered to the extent that they conflict (and some of them do) with the “regarded as”
definition and principles articulated in the ADAAA and accompanying regulations.

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“Plaintiff’s disability was morbid obesity” (doc. 17, ¶ 6), and that “Plaintiff was terminated by
Defendant as a result of discrimination based on her disability” (id., ¶ 5). The only claim
pleaded in the Amended Complaint is that Gentiva violated the ADA when it “terminated
Plaintiff on the basis of her disability, morbid obesity.” (Id., ¶ 10.)8
Under the ADA, a “disability” is “a physical or mental impairment that substantially
limits one or more major life activities of such individual.” 42 U.S.C. § 12101(1)(A). Typically,
a plaintiff’s status as being overweight, without more, has been held not to constitute a disability
within the meaning of the statute.9 That said, the Court need not offer any grand
pronouncements about the general relationship between a person’s weight and the term
“disability” as defined in the ADA. Rather, Powell’s ADA status turns on an individualized
inquiry about her specific condition and its accompanying limitations (if any).10 So the critical

8

Although the Amended Complaint repeatedly uses the term “morbid obesity” to
describe Powell’s impairment, the record contains no evidence tending to show (i) the clinical
meaning of the term “morbid obesity,” or (ii) that such a diagnosis or classification applies to
Powell’s condition.
9

See, e.g., Greenberg v. BellSouth Telecommunications, Inc., 498 F.3d 1258, 1264
(11 Cir. 2007) (“except in rare circumstances, obesity is not considered a disabling
impairment”) (citation omitted); Francis v. City of Meriden, 129 F.3d 281, 286 (2nd Cir. 1997)
(“obesity, except in special cases where the obesity relates to a physiological disorder, is not a
‘physical impairment’ within the meaning of the statutes”); Frank v. Lawrence Union Free
School Dist., 688 F. Supp.2d 160 (E.D.N.Y. 2010) (“obesity is not a disability under the ADA”);
Lescoe v. Pennsylvania Dep’t of Corrections – SCI Frackville, 2012 WL 505896, *2 (3rd Cir.
Feb. 16, 2012) (corrections officer’s obesity was not a disability under ADA where plaintiff “did
not establish any major life activities that were adversely affected by his weight” and “failed to
allege that his weight is the result of a physiological disorder”); Lowe v. American Eurocopter,
LLC, 2010 WL 5232523, *7 (N.D. Miss. Dec. 16, 2010) (“many courts presented with the issue
of obesity as a disability have held that such an impairment is not recognized under the ADA”).
th

10

See generally Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 566, 119 S.Ct. 2162,
144 L.Ed.2d 518 (1999) (referencing ADA “statutory obligation to determine the existence of
disabilities on a case-by-case basis”); Sutton v. United Air Lines, Inc., 527 U.S. 471, 483, 119
S.Ct. 2139, 144 L.Ed.2d 450 (1999) (“whether a person has a disability under the ADA is an
individualized inquiry”); Garrett v. University of Alabama at Birmingham Board of Trustees,
507 F.3d 1306, 1311 (11th Cir. 2007) (in Rehabilitation Act context, “[e]ach claim of disability
must be considered on a case-by-case basis. When the symptoms of an impairment vary widely
from person to person, an individualized assessment of the effect of an impairment is particularly
necessary.”) (citation and internal marks omitted).

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question for purposes of assessing whether Powell is “disabled” for ADA purposes is whether
her obesity substantially limits one or more of her major life activities.
Plaintiff’s own testimony unequivocally establishes that her weight imposes no such
limitations. While acknowledging that she was “overweight,” Powell was adamant that her
weight neither interfered with her ability to perform her job nor impaired her ability to care for
herself or engage in day-to-day activities. (Powell Dep., at 126.) She denied that her weight
affected her ability to walk, and indicated that she was walking as far as a mile (without aids) as
often as three times per week during the relevant period. (Id. at 126-27.) She denied needing
assistance in any activities because of her weight. (Id. at 127.) And she denied experiencing any
health conditions caused or contributed to by her weight. (Id. at 128.) On this record, then, no
reasonable factfinder could conclude that Powell’s obesity substantially limited one or more of
her major life activities, so as to render her “disabled” within the meaning of § 12101(1)(A).11
Accordingly, defendant is entitled to summary judgment on the ADA claim as pleaded in the
Amended Complaint.
B.

Plaintiff’s Purported “Regarded-As” Claim.

In her summary judgment brief, Powell makes no attempt to rebut or respond to
Gentiva’s argument that the record does not establish that her obesity is a physical impairment
that substantially limits her in any major life activities. Instead, Powell shifts gears and asserts
for the first time, “The Plaintiff’s claim for disability is based on perceived disability.” (Doc. 70,
at 2.) Plaintiff further maintains that “the Defendant regarded her as obese” and that “there is
sufficient evidence for a reasonable juror to find that Plaintiff was terminated based on her
perceived obesity.” (Id. at 2-3.) Certainly, the ADA includes in its definition of “disability” the
circumstance of “being regarded as having” a physical or mental impairment. 42 U.S.C. §
11

In that regard, defendant properly relies on Greenberg v. BellSouth
Telecommunications, Inc., 498 F.3d 1258 (11th Cir. 2007), in which the plaintiff’s ADA claim
alleged, among other things, that he was fired because he was obese. The Eleventh Circuit
affirmed summary judgment against the plaintiff, reasoning that “Greenberg has not shown that
he has an impairment that substantially limits him in one or more major life activities,” because
Greenberg admitted that he was able to care for himself and identified no class of jobs that he
was unable to work because of his weight. Although Greenberg pre-dates the ADAAA, nothing
in those amendments would appear to alter the Eleventh Circuit’s conclusion on the record
presented. Certainly, Powell has not argued that Greenberg’s determination as to the plaintiff’s
“actual disability” status is inapplicable or was somehow abrogated by passage of the ADAAA.

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12102(1)(C). Nonetheless, plaintiff’s purported “regarded-as” claim under the ADA cannot
withstand scrutiny for at least three distinct reasons.
1.

No “Regarded-As” Claim Has Been Joined in this Action.

First, Powell’s attempt to interject a “regarded-as” claim into this case via summary
judgment brief is procedurally improper. Review of the Amended Complaint reveals no
allegation that Gentiva regarded Powell as disabled. Plaintiff’s pleading did not reasonably place
defendant on notice that her ADA claim was predicated on a “regarded-as” theory. To the
contrary, the Amended Complaint is upfront and unflinching in its expression that Gentiva is
liable under the ADA because Powell suffered from an actual disabling impairment. Among
other examples, the pleading alleges that “Plaintiff is an otherwise qualified individual with a
disability, morbid obesity” and that “Defendant terminated Plaintiff on the basis of her disability,
morbid obesity, in violation of her rights pursuant to the” ADA. (Doc. 17, ¶¶ 5, 10.) The
Amended Complaint is crystal clear in its assertion that Powell “was a disabled person within the
meaning of the” ADA and that “Plaintiff’s disability was morbid obesity.” (Id., ¶ 6.) A fair
reading of Powell’s Amended Complaint yields nary a whiff of an inference that she seeks to
hold Gentiva liable under the ADA on a “regarded-as” theory. Authorities are legion for the
proposition that a plaintiff may not retool her pleading via summary judgment brief to articulate
a different species of claim. See, e.g., American Federation of State, County and Mun.
Employees Council 79 v. Scott, 717 F.3d 851, 863 (11th Cir. 2013) (“A plaintiff may not amend
her complaint through argument in a brief opposing summary judgment or one advocating
summary judgment.”) (citation and internal quotation marks omitted).12
Simply put, a plaintiff may not opportunistically hopscotch from the ADA theory pleaded
in her complaint to different one not pleaded in her complaint, all in midstream and without
amending her underlying pleading. See generally Hale v. King, 642 F.3d 492, 502 (5th Cir.
2011) (rejecting plaintiff’s “regarded-as” claim where his “allegations only establish that the
12

See also Miccosukee Tribe of Indians of Florida v. United States, 716 F.3d 535,
559 (11 Cir. 2013) (“In this circuit, a plaintiff cannot amend his complaint through argument
made in his brief in opposition to the defendant’s motion for summary judgment. … We
therefore decide the Tribe’s appeal of the Count IV judgment by assessing the record in the light
of Count IV’s allegations, as stated in the complaint.”); GeorgiaCarry.Org, Inc. v. Georgia, 687
F.3d 1244, 1258 n.27 (11th Cir. 2012) (“It is well-settled in this circuit that a plaintiff may not
amend the complaint through argument at the summary judgment phase of proceedings.”).
th

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Appellees denied him access to prison programs and facilities because of his impairments,” not
that defendants regarded him as being impaired).13 After all, the purpose of Rule 8(a)(2),
Fed.R.Civ.P., “is to give the defendant fair notice of what the claim is and the grounds upon
which it rests.” Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 974 (11th Cir. 2008)
(citations and internal quotation marks omitted). Alleging that Gentiva violated the ADA by
firing Powell because she is morbidly obese in no way gave Gentiva fair notice that Powell really
claimed that Gentiva violated the ADA by terminating her employment because it regarded her
as having a physical or mental impairment. No “regarded-as” claim appearing in the Amended
Complaint, Powell cannot successfully invoke such a claim in response to Gentiva’s summary
judgment motion.
2.

The Record Does Not Support a Reasonable Inference that Gentiva
Regarded Powell as Disabled.

Second, even if Powell had properly pleaded a “regarded-as” claim under the ADA,
summary judgment would remain appropriate because the record viewed in the light most
favorable to plaintiff does not support a reasonable inference that Gentiva regarded her as having
an impairment.
As previously stated, an individual is covered under the ADA if he or she is “regarded as
having such an impairment.” 42 U.S.C. § 12102(1)(C). The statute, as amended by the
ADAAA, elaborates that a plaintiff establishes a “regarded-as” claim by showing “that he or she
has been subjected to an action prohibited under this chapter because of an actual or perceived
physical or mental impairment whether or not the impairment limits or is perceived to limit a
13

See also Marshall v. Mayor and Alderman of City of Savannah, Ga., 2010 WL
537852, *8 (11th Cir. Feb. 17, 2010) (“We have previously rejected the argument, however, that
a mere generalized claim of discrimination is sufficient to raise a particularized Title VII
claim.”); Coons v. Georgia Pacific Corp., 829 F.2d 1563, 1568-69 (11th Cir. 1987) (rejecting
plaintiff’s attempt to expand Title VII claim beyond narrow denial-of-promotion claim asserted
in complaint, and deeming purported new claims noncompliant with Rule 8(a)); Gordon v.
Board of School Com’rs of Mobile County, 2011 WL 773033, *5 n.13 (S.D. Ala. Mar. 1, 2011)
(“At any rate, the Complaint does not even hint at a ‘regarded as’ ADA claim, and a plaintiff
cannot use his summary judgment brief as a de facto amendment to his complaint.”); Coffey v.
County of Hennepin, 23 F. Supp.2d 1081, 1088 (D. Minn. 1998) (where plaintiff alleged for the
first time in opposing summary judgment motion on ADA claim that employer regarded her as
disabled, “the Court need not address this issue because Plaintiff failed to plead this theory in her
Complaint; therefore, Defendants are prejudiced because of lack of notice of the claim”).

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major life activity.” Id. § 12102(3)(A). Regulations promulgated by the Equal Employment
Opportunity Commission emphasize that an individual is “regarded as having such an
impairment” for ADA purposes “if the individual is subjected to a prohibited action because of
an actual or perceived physical or mental impairment, whether or not that impairment
substantially limits, or is perceived to substantially limit, a major life activity.” 29 C.F.R. §
1630.2(l)(1).14 “Prohibited actions” include termination of employment. Id.
The fundamental evidentiary flaw in plaintiff’s “regarded-as” theory is that the record is
devoid of facts from which one could reasonably infer that Gentiva perceived Powell to have a
physical or mental impairment. Indeed, the only evidence Powell offers on this point is her
supervisor’s comment during the corrective counseling meeting that “she wasn’t even going to
discuss the weight issue at this time,” that her jewelry and clothing were inappropriate, and that
this is why her sales numbers were so low. Plaintiff would draw an inference from this comment
that Merrell viewed Powell’s appearance as a whole (clothing, accessories, weight) as negatively
affecting her sales performance. Assuming (without deciding) that such an inference is
reasonable, it would show only that Merrell viewed Powell as overweight, not that Merrell
14

This post-ADAAA formulation of the “regarded-as” standard is markedly
different from its predecessor. In the pre-ADAAA regime, courts found liability in regarded-as
cases only where “(1) a covered entity mistakenly believes that a person has a physical
impairment that substantially limits one or more major life activities, or (2) a covered entity
mistakenly believes that an actual, nonlimiting impairment substantially limits one or more
major life activities.” Sutton, 527 U.S. at 489. Thus, “regarded-as” liability hinged on the
employer’s belief that the employee’s actual or perceived impairment substantially limited one or
more major life activities. Under the new ADAAA standard, however, perception of an
impairment is all that is necessary, “whether or not the impairment limits or is perceived to
limit a major life activity.” 42 U.S.C. § 12102(3)(A) (emphasis added); see also Rubano v.
Farrell Area School Dist., --- F. Supp.2d ----, 2014 WL 66457, *11 (W.D. Pa. Jan. 8, 2014)
(“After the 2008 amendments to the ADA definition of disability, all that an ADA plaintiff must
show to raise a genuine issue of material fact for the ‘regarded as’ prong is that a supervisor
knew of the purported disability.”); Pinckney v. Federal Reserve Bank of Dallas, 2013 WL
5461873, *9 (W.D. Tex. Sept. 30, 2013) (“The ADAAA makes clear that the ‘regarded as’
disabled prong no longer requires a showing that the employer perceived the individual to be
substantially limited in a major life activity.”). “Thus, a ‘regarded as’ claim under the ADAAA
is much easier to prove than a ‘regarded as’ claim before the ADAAA.” Rocha v. Coastal
Carolina Neuropsychiatric Crisis Services, P.A., --- F. Supp.2d ----, 2013 WL 5651801, *5
(E.D.N.C. Oct. 16, 2013) (citations omitted). In the context of Powell’s claims, “a plaintiff now
might be considered disabled due to obesity under the ADA if her employer perceived her
weight as an impairment.” Lowe, 2010 WL 5232523, at *7.

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perceived Powell’s weight to constitute a physical impairment. That is an important distinction.
Plaintiff’s argument improperly equates a physical characteristic (i.e., overweight status) with an
impairment. However, plenty of people with an “undesirable” physical characteristic are not
impaired in any sense of the word. To illustrate the point, suppose plaintiff wore her hair in a
neon green mohawk. Such an unconventional hairstyle choice might be viewed as
unprofessional, and might well impede her efforts to sell hospice services to physicians and
senior living facilities, but it obviously is not a physical impairment. The same goes for weight.
An overweight sales representative may have difficulty making sales if the prospective customer
perceives her appearance to be unprofessional, but that does not render her weight a “physical or
mental impairment” within any rational definition of the phrase. At most, plaintiff’s evidence is
that Merrell perceived that Gentiva customers were less likely to purchase hospice services from
an overweight sales representative (just as they would be less likely to purchase such services
from a sales representative sporting a green mohawk). Neither the hairstyle nor the weight is an
actual or perceived impairment in that scenario.15 Yet that is all plaintiff offers on summary
judgment.
Of course, weight can be a physical impairment or, more precisely, an employer may
perceive an employee’s overweight status to constitute a physical impairment. For example,
suppose an employer believes that an overweight job applicant cannot climb a ladder, or walk
across a parking lot, or climb flights of stairs, and therefore does not hire the overweight
individual for a job that requires such activities. That might give rise to “regarded-as” status for
an ADA claim in the post-ADAAA world. But that is not what we have here. The EEOC
defines the term “physical or mental impairment” under the new version of the ADA as meaning
“[a]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting
15

Authority, both before and after the ADAAA, supports this proposition and
rejects the notion that a disfavored physical characteristic is a disability under the ADA. See,
e.g., Francis, 129 F.3d at 285-86 (noting that “a mere physical characteristic [such as moderate
obesity] does not, without more, equal a physiological disorder” and concluding that “physical
characteristics that are ‘not the result of a physiological disorder’ are not considered
‘impairments’ for the purposes of determining either actual or perceived disability”) (citations
omitted); Sibilla v. Follett Corp., 2012 WL 1077655, *9 (E.D.N.Y. Mar. 30, 2012) (even after
passage of ADAAA, “[t]he fact that an employer regards an employee as obese or overweight
does not necessarily mean that the employer regards the employee as suffering a physical
impairment”).

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one or more body systems” or “[a]ny mental or psychological disorder.” 29 C.F.R. §
1630.2(h)(1)-(2). Powell points to not a shred of evidence that Gentiva viewed her weight as a
physiological disorder that affected any of her body systems. She does not suggest that Gentiva
viewed her weight as affecting her at all. That Gentiva may have believed its customers did not
want to buy hospice services from an overweight salesperson is no more a perception of an
impairment than a belief that customers do not want to buy hospice services from a salesperson
with a brightly colored, rebellious hairstyle. Neither circumstance would give rise to a viable
“regarded-as” claim under the ADA.16 Accordingly, defendant’s Motion for Summary Judgment
is due to be granted for want of evidence that Gentiva perceived Powell to have an impairment.
3.

Plaintiff Has Not Made a Showing of Pretext.

Third, even if Powell had properly pleaded a “regarded-as” ADA claim in her Amended
Complaint (which she did not), and even if Powell had pointed to evidence that Gentiva
perceived her to have a physical or mental impairment (which she has not), her ADA cause of
action would still fail because she cannot make the requisite showing of pretext.
As both sides recognize, circumstantial ADA claims such as Powell’s are subject to the
familiar McDonnell Douglas burden-shifting framework.17 See, e.g., Holly v. Clairson
16

A suggestion that an employee lose weight is analogous to a suggestion that an
employee seek counseling, which has been repeatedly held not to suffice for a “regarded-as”
claim in the post-ADAAA regime. See McNally v. Aztar Indiana Gaming Co., LLC, 2014 WL
300433, *3 (S.D. Ind. Jan. 28, 2014) (finding that no reasonable jury could conclude that
employer perceived plaintiff as having a mental disability, where manager “stated that he knew
[plaintiff] was going through a lot and suggested that he seek professional counseling” and
human resources director met with him on one occasion “out of concern for his emotional wellbeing”); Douglas v. District of Columbia Housing Authority, --- F. Supp.2d ----, 2013 WL
5764842, *8 (D.D.C. Oct. 25, 2013) (in ADAAA context, “a human resource officer’s mere
suggestion that an employee seek counseling is insufficient to establish that the plaintiff is
regarded as disabled”).
17

Powell has not argued that her claim is properly analyzed under a “direct
evidence” standard, so as to remove it from the purview of McDonnell Douglas. At any rate, the
record is devoid of direct evidence of discrimination. “Direct evidence is evidence, that, if
believed, proves the existence of a fact without inference or presumption.” Morris v. Emory
Clinic, Inc., 402 F.3d 1076, 1081 (11th Cir. 2005) (alterations and internal quotation marks
omitted). Here, Powell has marshaled no evidence proving (without inference or presumption)
that Gentiva terminated her employment because it perceived her weight to be an impairment;
therefore, the circumstantial framework is properly applied.

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Industries, L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2007) (“Under the controlling law in this
Circuit, the burden-shifting analysis of Title VII employment discrimination claims is applicable
to ADA claims.”) (citation and internal marks omitted); Cleveland v. Home Shopping Network,
Inc., 369 F.3d 1189, 1193 (11th Cir. 2004) (applying McDonnell Douglas circumstantial evidence
framework in ADA context); Wascura v. City of South Miami, 257 F.3d 1238, 1242 (11th Cir.
2001) (“In the absence of direct evidence of discrimination, a plaintiff may establish a prima
facie case of an ADA violation through circumstantial evidence using the familiar burdenshifting analysis employed in Title VII employment discrimination cases.”) (footnote omitted).
Under this methodology, the initial burden rests with the plaintiff to establish a prima facie case
of discrimination, after which the burden of production shifts to the defendant to articulate a
legitimate non-discriminatory reason for the challenged action. See Cleveland, 369 F.3d at 1193;
Wascura, 257 F.3d at 1242–43. When a non-discriminatory reason is given, the plaintiff is “left
with the ultimate burden of proving that [the employer] intentionally discriminated against her
because of her disability.” Cleveland, 369 F.3d at 1193; see also Wascura, 257 F.3d at 1243.
Assuming (without deciding) that plaintiff has established a prima facie case of disability
discrimination, Gentiva has plainly articulated a legitimate, nondiscriminatory reason for
terminating her employment in November 2011. In particular, Gentiva’s evidence is that it fired
Powell because of cumulative performance issues, including chronically low and declining sales
numbers, failure to record sales activities and utilize available marketing materials, and multiple
misrepresentations to Gentiva colleagues concerning her supervisor’s determination of how sales
credit would be allocated for home health admissions. To defeat Gentiva’s summary judgment
motion, Powell must make a showing of pretext as to these stated reasons. To satisfy her burden,
Powell’s evidence “must reveal such weaknesses, implausibilities, inconsistencies, incoherencies
or contradictions in the employer’s proffered legitimate reasons for its actions that a reasonable
factfinder could find them unworthy of credence.” Vessels v. Atlanta Independent School
System, 408 F.3d 763, 771 (11th Cir. 2005) (citation omitted); see also Rioux v. City of Atlanta,
Ga., 520 F.3d 1269, 1278 (11th Cir. 2008) (“The plaintiff must demonstrate weaknesses or
implausibilities in the employer’s proffered legitimate reasons for its action sufficient for a
reasonable factfinder to disbelieve the reasons.”). “If the proffered reason is one that might
motivate a reasonable employer, a plaintiff cannot recast the reason but must meet it head on and
rebut it .... Quarreling with that reason is not sufficient.” Wilson, 376 F.3d at 1088.

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Powell’s evidence of pretext is scant. Primarily, she relies on Merrell’s remark about
“not even going to discuss the weight issue” at the corrective counseling meeting. However, this
singular stray, ambiguous remark in the context of a performance-focused counseling session
several weeks before Powell’s dismissal does not demonstrate weakness or incoherence in
Gentiva’s stated explanation for terminating her employment. See generally Ritchie v. Industrial
Steel, Inc., 2011 WL 1899570, *5 (11th Cir. May 19, 2011) (“stray remarks that are isolated and
unrelated to the challenged employment decision are insufficient to establish pretext”) (citation
and internal quotation marks omitted). Plaintiff also attempts to derive pretext from Gentiva’s
decision to terminate her employment before the end of the follow-up period after the corrective
counseling meeting. But there is no evidence that the 30-day follow-up period was tantamount
to a guarantee that Powell would remain employed throughout that period (even if she made
misrepresentations to manipulate her sales numbers in the interim), or that dismissal of Powell
before said period expired was in any way conflicting, contradictory, or inconsistent with
Gentiva’s generally applicable policies or practices. In short, plaintiff has not shown that the
timing of her discharge was suspicious or that it somehow cast doubt on the veracity of
defendant’s stated reasons for letting her go. Thus, even if Powell could overcome the pleading
obstacle to her “regarded-as” claim, and even if she had evidence supporting an inference that
Gentiva perceived her weight to be a physical impairment, her ADA disability discrimination
claim would nonetheless fail on the merits for lack of evidence that Gentiva’s proffered
legitimate, non-discriminatory reasons for terminating her employment were pretextual.
IV.

Conclusion.
For all of the foregoing reasons, Defendant’s Motion for Summary Judgment (doc. 59) is

granted. There being no genuine issues of material fact as to any claim or cause of action
asserted herein, this action is dismissed with prejudice. A separate judgment will enter.
DONE and ORDERED this 12th day of February, 2014.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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