Mileski v. Infirmary Health System, Inc.

Filing 50

MEMORANDUM OPINION AND ORDER granting in part and denying in part 30 Motion for Summary Judgment. Signed by Magistrate Judge William E. Cassady on 3/31/2016. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
NOELLE MILESKI,

:

Plaintiff,

:

vs.

:

GULF HEALTH HOSPITALS, INC.,
d/b/a THOMAS HOSPITAL,

:

Defendant.

CA 14-0514-C

:

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the motion for summary judgment filed by
defendant Gulf Health Hospitals, Inc. d/b/a Thomas Hospital (Doc. 30),1 along with its
brief (Doc. 33) and evidentiary submission (Doc. 31), plaintiff’s response in opposition
(Doc. 36), along with her evidentiary submission (Doc. 37), and the defendant’s reply
brief (Doc. 43) and additional evidentiary submission (Doc. 42).2 The parties have
consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. §
636(c), for all proceedings in this Court. (Compare Doc. 7 (specifically advising the parties
that this case had been randomly assigned to him for all purposes, including trial,
directing the Clerk of Court “to send to each party, for informational purposes, a copy of
the Court’s form Consent to the Exercise of Jurisdiction by a United States Magistrate
Judge,” and informing the parties that “[i]f there is no request for reassignment filed by
December 14, 2014, the undersigned will treat this as a consent case pursuant to 28 U.S.C.
1

2

Hereinafter, the defendant will be referred to by name as Thomas Hospital.

The Court will also consider a document the defendant was allowed to file under
seal. (See Docs. 46 & 47.)

§ 636(c).” (emphasis in original)) with Doc. 9 (on December 22, 2014, the following
remark was recorded on the Docket Sheet: “Because there was no request for
reassignment filed by December 19, 2014, the undersigned will treat this as a consent
case pursuant to 28 U.S.C. § 636(c).”).) Upon consideration of the foregoing pleadings,
with attachments, the Court concludes that defendant’s motion for summary judgment
(Doc. 30) is due to be GRANTED IN PART and DENIED IN PART.
FINDINGS OF FACT
Noelle Mileski has a history of depression dating to her teenage years when she
was sexually abused. (Compare Doc. 37, Exhibit A, Deposition of Melissa Noelle Mileski,
at 25 with Doc. 46, Sealed Progress Notes of Cindy Carpenter Dated June 4, 2013.)3
Mileski testified that her depression would “come and go” over the years (Doc. 37,
Exhibit A, Mileski depo., at 30);4 in her 20s she was successfully treated without
medication by a physician but when she was going through her divorce in 2012, she was
prescribed antidepressants by her general physician (id. at 26-27). When Mileski began
her employment at Thomas Hospital in August of 2010,5 she was not having any mental

3

Mileski is currently diagnosed with Major Depression (recurrent, severe without
psychosis) and Post Traumatic Stress Disorder. (Doc. 37, Exhibit I; see also Doc. 37, Exhibit A,
Mileski depo., at 93.)
4

Mileski described how depression impacts her life when “active,” testifying that

she,
would’t want to leave the house. I wouldn’t want to talk to anyone. It made it
very difficult for me to take care of my child. It made it difficult to interact with
anyone outside of my house. I cried a lot.
(Id.)
5

When she was hired, Mileski went through a two-day orientation during which
she was given a copy of the employee handbook. (Doc. 31, Exhibit 1, Mileski depo., at 48-49 &
Exhibits 3 & 4 to Mileski depo.)

2

health problems (Doc. 37, Exhibit A, Mileski depo., at 30) and, therefore, did not indicate
on the Initial Health History form she completed that she suffered from any chronic
illness or condition (Doc. 31, Exhibit 1, Mileski depo. at 29 & Exhibit 1 to Mileski depo.).
This form, of course, nowhere specifically requested information relative to mental
health issues, as it did regarding diabetes, high blood pressure, heart problems, and the
like. (See id.)
Mileski worked as a unit tech at Thomas for the duration of her employment. (See
Doc. 37, Exhibit A, Mileski depo., at 41-42.) Plaintiff was generally assigned to the
Medical Intensive Care Unit (“MICU”), a 10-bed unit where her duties were divided
between general clerical work and patient care, but during some of her shifts plaintiff
had to float to another unit in the hospital and work. (Compare id. at 41-44 with Doc. 31,
Exhibit 1, Mileski depo., at 45-46.) During the approximately three years she was
employed at Thomas Hospital, plaintiff floated to many units, including the
cardiac/telemetry unit on Two North. (See id. at 46-48.) George Pappas was the nursing
manager of the cardiac/telemetry unit (Doc. 37, Exhibit G, Deposition of George Pappas,
at 17 & 20) and when a unit tech was needed to cover for a nursing assistant who was
out in Pappas’ unit, that unit tech would strictly assist the nurses in caring for patients
(Doc. 31, Exhibit 6, Pappas depo., at 21-22 & 24-25).6

6

The cardiac unit employed both clerical workers and then people who would
assist the nurses in caring for patients (id. at 25); the unit clerks in the cardiac unit do not have
the necessary competencies/certifications to care for patients, whereas someone like plaintiff
could perform nursing assistant tasks in that unit when she floated to it because she had the
proper certification (see id. at 36 & 37; cf. Doc. 31, Exhibit 4, Deposition of Blair Nelson, at 44
(Nelson explained that if an MICU tech was needed to float to the cardiac unit, he or she would
either be assigned nursing assistant tasks caring for patients or clerical/secretarial tasks, but not
both)).

3

Blair Nelson, who was either Mileski’s team leader on MICU or her nursing
manager, never had any problems with plaintiff’s work performance or attendance7; she
was a good employee who was never disciplined, met all standards on her evaluations,8
and never complained about not wanting to perform any aspect of her job, including
floating to other departments. (Doc. 37, Exhibit B, Deposition of Blair Nelson, at 40-43, 48
& 89; see Doc. 31, Exhibit 4, Nelson depo., at 43-44 (Nelson never received complaints
from other units to which plaintiff floated about plaintiff’s work performance or
attitude); Doc. 37, Exhibit C, Deposition of Georgie Cain, at 49 (no nursing manager ever
brought to her attention any work performance, attendance or disciplinary issues
involving plaintiff).) Nelson was unaware of anything particularly negative associated
with working in the cardiac unit and none of her employees informed her of any
negative experiences they had in floating to the cardiac unit; rather, Nelson simply
appreciated that her employees preferred working in their home unit. (Doc. 37, Exhibit
B, Nelson depo., at 46.)
Nelson had an open-door policy as nurse manager and encouraged all employees
to let her know if anything was bothering them. (Id. at 63.) To this end, her employees,
including Mileski, would discuss personal issues with her, including life issues and
stressors. (Id. at 64.) For instance, Nelson knew that Mileski was going through a
stressful divorce and that her problems with her soon-to-be ex-husband even encroached

7

Plaintiff was never disciplined over attendance issues. (Doc. 37, Exhibit B, Nelson
depo., at 89-90.)
8

In particular, plaintiff’s evaluation from the spring of 2013 was good. (See Doc. 37,
Exhibit A, Mileski depo., at 51.)

4

on her work in the unit;9 the nurse manager was also aware of stress plaintiff
experienced associated with her special-needs child and the birth of another child while
employed at Thomas, along with the grief and stress associated with her mother’s death
in the MICU. (Doc. 37, Exhibit A, Mileski depo., at 64-65.) According to plaintiff, Nelson
also knew about the sexual abuse she suffered as a child, as plaintiff specifically told her
about the abuse, and that she had started seeing Cindy Carpenter10 in February of 2013
because her depression had returned due to her mother’s death, stress from her divorce,
and her history of being a victim of sexual abuse. (Doc. 37, Exhibit A, Mileski depo., at
31-35 & 37; but cf. Doc. 37, Exhibit B, Nelson depo., at 85-86 & 89 (Nelson’s testimony that
she learned about plaintiff’s issues with sexual abuse as a child and teenager, about her
history of depression, and that she was being treated at The Harbor only after May 31,
2013, not before).)11 And though (in early 2013) plaintiff felt “very close to the way [she]
felt before when [she] was not able to leave the house[]” (Doc. 37, Exhibit A, Mileski
depo., at 31), her depression/mental health conditions did not affect her work, and she
9

Indeed, Nelson was involved in getting the hospital’s telecommunications unit to
block the number Mileski’s husband was using to call the MICU multiple times on one particular
day because this activity disrupted the unit. (Id. at 65.) According to Mileski, Georgia Cain,
Thomas Hospital’s Division Director of Nursing (Doc. 37, Exhibit C, Cain depo., at 18), also was
aware that her husband was disrupting the unit with his calls (Doc. 31, Exhibit 1, Mileski depo.,
at 39; see also id., Exhibit 3, Cain depo., at 105).
10

Carpenter was director of The Harbor (see Doc. 37, Exhibit I), an outpatient clinic
actually onsite at Thomas Hospital (see Doc. 37, Exhibit C, Cain depo., at 24-25), which provided
psychological/psychiatric care to patients (compare Doc. 31, Exhibit 7, Deposition of Helena
Roldan, at 19-20 (indicating there was no need for her to refer plaintiff to another facility for
treatment of her depression since she had already started treatment at The Harbor for
depression) with Doc. 37, Exhibit B, Nelson depo., at 89 (describing The Harbor as an outpatient
behavioral health program)). Once Mileski began seeing Carpenter in February of 2013 (Doc. 37,
Exhibit A, Mileski depo., at 25), the psychiatrist at The Harbor began prescribing the
antidepressants that her general physician had prescribed her in 2012 (id. at 27-28).
11

Nelson was also aware that plaintiff had seen EAP therapist Helena Roldan on
one occasion in 2011 to cope with the stress associated with her divorce. (Doc. 37, Exhibit A,
Mileski depo., at 37-38 & 103.)

5

did not ask for any restrictions or accommodations, because she “worked very hard to
keep” these issues from impacting her work. (Id. at 32 & 51; see also id. at 87 (“I was able
to do my job regardless of my medical condition.”).)12 All of this changed on May 31,
2013.
On the night of May 30, 2013, plaintiff argued with her ex-husband over the
custody of her oldest son; her ex-husband threatened to take plaintiff back to court in
order to have her parental rights revoked. (Doc. 37, Exhibit A, Mileski depo., at 91; see
also Doc. 46, June 4, 2013 Progress Notes of Cindy Carpenter.) Plaintiff had nightmares
and did not sleep well. (Id.) Mileski went to work the morning of May 31, 2013, and
clocked in at 6:44 a.m. (See Doc. 31, Exhibit 5, Deposition of Pam Bailey, at 32; compare id.
with Doc. 37, Exhibit A, Mileski depo., at 54-56 (though the events of the morning of May
31, 2013 are “foggy” for plaintiff and she does not specifically remember clocking in, she
admits that she must have clocked in based on the attendance clock reflecting that she
did so at 6:44 a.m.).) Plaintiff went to the MICU and (probably) saw that she was
assigned to the cardiac unit (see id., at 56); Mileski, who was in an admittedly
upset/unsettled state (see Doc. 37, Exhibit B, Nelson depo. at 76-77 (Nelson was not told
that plaintiff was specifically upset about the floating assignment, only that she was
upset before she left the MICU) & 81 (“[F]rom what I understand, she showed up, was
upset, and then left the unit.”)),13 left the MICU but instead of reporting to the cardiac

12

The employee handbook recognizes that “[t]he Americans with Disabilities Act
(ADA) prohibits discrimination in employment because of a qualified disability[,]” and, further,
that “[i]ndividuals desiring job accommodations should notify the Employee Health Department
in writing.” (Doc. 37, Exhibit 5 to Nelson depo., at Bates No. 000016.)
13

The defendant would have this Court find that what upset plaintiff and
precipitated her flight from work was her assignment to the cardiac unit and, in support thereof,
it relies in large measure upon the following notation by Cindy Carpenter on June 4, 2013: “She
went to work Fri but learned she would be pulled to another unit. She left work without proper

(Continued)
6

unit, she left the hospital (Doc. 37, Exhibit A, Mileski depo., at 57) without clocking out
(compare Doc. 31, Exhibit 5, Bailey depo., at 33-34 (no clock out time) with Exhibit 1 to
Bailey depo., at Bates No. 000078 & Doc. 37, Exhibit A, Mileski depo., at 57 & 58
(plaintiff’s testimony that if the records show she did not clock out, then she did not
clock out))14 or advising anyone in a supervisory capacity that she was leaving15 (see Doc.

notification[.]” (Doc. 46, Progress Notes of Cindy Carpenter.) This notation, however, is not
particularly helpful inasmuch as it is impossible to tell whether this assignment is what upset
Mileski (or made her unhappy) or whether she was already upset and emotionally fragile and
simply had a mental “break” after reporting to her unit which triggered her downward spiral to
a suicide attempt (compare Doc. 37, Exhibit C, Cain depo., at 90 (deponent’s testimony that, on
July 22, 2013, plaintiff informed Cobb and her that she did not talk to Nelson before leaving on
May 31, 2013 because she was “not in frame of mind [to do so]”) with Doc. 31, Exhibit 7, Roldan
depo., at 29 (plaintiff told Roldan that she stayed up most of the night of May 30, 2013, and that
she went to work the next day anxious and irritable)). This latter scenario is more likely, of
course, given the defendant’s inability to garner anyone’s “eyewitness” testimony that plaintiff
specifically expressed her displeasure (or that she was upset) about the assignment (see, e.g., Doc.
31, Exhibit 2, Deposition of Lisa Cobb, at 135 (deponent testified that Nelson told her that
plaintiff arrived at work, received her assignment, got upset about the assignment, left the unit,
and did not show up to Two North); but cf. Doc. 37, Exhibit B, Nelson depo., at 76-77 & 80-81)),
Blair Nelson’s explicit testimony that the person she spoke with in the MICU unit on the
morning of May 31, 2013 simply reported that plaintiff was upset prior to leaving the unit (Doc.
37, Exhibit B, Nelson depo., at 76-77 (Nelson was not told that plaintiff was specifically upset
about the floating assignment); see also id. at 81 (“[F]rom what I understand, she showed up, was
upset, and then left the unit.”)) and no one ever told her that plaintiff was refusing to go to the
cardiac unit and/or that she did not want to go to the cardiac unit (id. at 80-81), Mileski’s
testimony that she had no problem with working in the cardiac unit and did not recall
expressing displeasure to any of her coworkers about being assigned to the cardiac unit or telling
Lisa Cobb at the end of July that she was upset about that assignment (Doc. 37, Exhibit A,
Mileski depo., at 56; but cf. Doc. 31, Exhibit 2, Cobb depo., at 198-199 (Cobb’s insistence that she
correctly wrote down on her notes of the July 22, 2013 meeting that plaintiff told her that she saw
her assignment to float on the staffing book and got upset about the assignment, and specifically
never told her that she was upset because her ex-husband had contacted her the night before
threatening to take full custody of their child)), and Pappas’ testimony that he had never been
informed that plaintiff was unhappy about being assigned to his unit on May 31, 2013 (Doc. 31,
Exhibit 6, Pappas depo., at 32).
14

The hospital’s employee handbook, created by Infirmary Health Systems (see Doc.
37, Exhibit D, Cobb depo., at 32), addresses “timekeeping,” in relevant manner, as follows: “All
employees are required to properly record their own time (arrivals and departures) using their
assigned time clock or other method of time entry each time they report to and leave work. . . .
Employees are required to clock out when leaving System premises for personal reasons during
a scheduled shift and clock in upon returning.” (See, e.g., Doc. 31, Exhibit 4 to Mileski depo., at
Bates No. 000031.)

7

31, Exhibit 6, Pappas depo., at 23-24 (when he arrived at his unit on the morning of May
31, 2013, he was informed that Mileski had not arrived to fulfill her floating assignment
to cover for one of his nursing assistants)).16
Blair Nelson was driving into work on May 31, 2013, when she was notified that
Mileski had not reported to her assignment on the cardiac unit (Doc. 37, Exhibit B,
Nelson depo., at 74); Nelson called the MICU and was informed that plaintiff was upset
when in the MICU but was no longer there, information which obviously concerned
Nelson since she knew plaintiff had not made it to the cardiac unit (see id.). Upon
fielding a call from Amy Lindley, a nurse on the MICU who was a friend of plaintiff,
which indicated that plaintiff was at the Fairhope Pier threatening to harm herself,
Nelson drove to the pier out of her concern for plaintiff. (Id. at 77-79.)17 Mileski was not

15

Because plaintiff’s memory of that day is “foggy” (Doc. 37, Exhibit A, Mileski
depo., at 56-57), she has no recollection whether she clocked out, advised Nelson or Pappas that
she was leaving, or whether anyone gave her permission to leave (id. at 57-58 & 76-77).
16

When plaintiff did not show up in the cardiac unit for her floating assignment and
handoff (see Doc. 31, Exhibit 1, Mileski depo., at 52 (describing a handoff as a process in which
the employee from the previous shift informs his or her replacement of what happened during
the previous shift)), Pappas covered the shift as nursing assistant on May 31, 2013. (See Doc. 31,
Exhibit 6, Pappas depo., at 24 & 26.) Covering shifts for a nurse or nursing assistant is not
atypical for a nurse manager (compare id. at 24 & 29 with Doc. 37, Exhibit B, Nelson depo., at 24),
and, in fact, Nelson resigned her position as nurse manager because she frequently had to fill-in
for nurses on her unit and spent a large amount of her time at the hospital and away from her
family (id.). On May 31, 2013, when Pappas filled in for Mileski, his unit did not go below the
proper patient-nurse/nursing assistant ratio and no patient on the unit received detrimental
treatment. (Doc. 31, Exhibit 6, Pappas depo., at 28.) The cardiac unit at Thomas Hospital is a 32bed unit and while the patients on Pappas’ unit are not as sick or acute as the patients in the 10bed MICU, his unit can be busier than the MICU, as it was on May 31, 2013 with a lot of
discharges and admissions. (See id. at 29 & 33-36.)
17

Nelson let Georgie Cain, her boss, know what was going on with Mileski.
(Compare id. at 79 with Doc. 37, Exhibit C, Cain depo., at 18, 23 & Doc. 31, Exhibit 3, Cain depo., at
32.) Later that day, Cain had another conversation with Nelson in which Nelson advised her that
Mileski had been assigned to float to Two North but did not arrive on that unit. (Id. at 34-35.)
Cain instructed Nelson to advise Lisa Cobb of the situation. (Id.) According to Cain, Nelson
never told her that Mileski “refused” her floating assignment. (Id.; see also id. at 43.)

8

at the pier when Nelson arrived (Doc. 37, Exhibit B, Nelson depo., at 79); however,
Nelson learned when she arrived at Thomas Hospital that plaintiff had been transported
to the hospital’s emergency room (id. at 92-93).18 A patient care worksheet dated May 31,
2013, reflects that plaintiff was having suicidal ideations and took a drug overdose,
consisting of 3½ Ambien, 10 Ultram, 2 Aleve tablets, and 10 allergy pills. (Doc. 37,
Exhibit H.)19
After some form of treatment in Thomas Hospital’s emergency department, Mileski was
transferred and admitted to Mobile Infirmary Medical Center for further treatment.
(Compare Doc. 37, Exhibit B, Nelson depo., at 93 with Doc. 37, Exhibit A, Mileski depo., at
60.)
Mileski was discharged from the Mobile Infirmary on Sunday June 2, 2013 (id.)
and spoke with Nelson by phone that afternoon (id. at 60-61). Mileski was worried about
her job because she left work on May 31, 2013 and, therefore, she telephoned Nelson to

18

It was Nelson’s belief that Amy Lindley called 911 and directed emergency
responders to the pier. (Id. at 78; compare id. with Doc. 37, Exhibit A, Mileski depo., at 59-60 (Amy
Lindley informed plaintiff that she (Lindley) called the paramedics after speaking with plaintiff
and learning that she had taken an overdose of medication).) When Nelson learned of plaintiff’s
presence in the emergency room, she spoke to the team leader in the emergency department and
asked the team leader to restrict visitors for plaintiff in order to maintain her privacy. (Doc. 37,
Exhibit B, Nelson depo., at 68-69 & 93.)
19

It is clear to the Court, that after plaintiff left the hospital, she went home,
gathered Ambien, Ultram, Aleve and allergy tablets, traveled to the Fairhope pier and attempted
suicide by taking the medication she had gathered. (Compare id. with Doc. 37, Exhibit J (“On 5-3113, she became overwhelmed [with] stress (work & ex-husband) and took OD of meds.”) and
Doc. 31, Exhibit 7, Roldan depo., at 29 (plaintiff told the deponent on June 21, 2013, that she had
an argument with her husband on May 30, 2013 and stayed up most of the night, she went to
work anxious and irritable, when she got to work she was asked to work in another unit but
instead of reporting to the other unit she left work, went home, got prescription medication,
went to the park and took “it all.”).)
This was not plaintiff’s first attempted suicide, as the record reflects a history of other
suicide attempts. (See Doc. 37, Exhibit J (“[H]x of 3 suicide attempts.”).)

9

ask her what she needed to do about work (id. at 61). According to Mileski, Nelson
informed her that “at worst” she “would have to go through The Harbor program and
possibly be written up[]” (id. at 61; but cf. Doc. 37, Exhibit B, Nelson depo., at 108
(Nelson’s testimony that she did not so inform plaintiff and that she would not make
such statements for fear of giving someone false information)), but also informed her
that she (Nelson) would have to speak with Lisa Cobb in the Human Resources
Department (compare Doc. 37, Exhibit A, Mileski depo., at 62 (Mileski testified that
Nelson did not tell her to come back to work during this telephone call) with Doc. 37,
Exhibit B, Nelson depo., at 95 & Doc. 31, Exhibit 4, Nelson depo., at 97-98 (Nelson
testified that she informed Mileski that she would have to talk to human resources about
plaintiff’s return to work because it was her policy to consult human resources on all
human resources issues, which she believed included a situation in which an employee
reports to work but does not “pick up” her assignment).) On Monday, June 3, 2013,
Mileski went to Thomas Hospital and spoke to Nelson and Paula Smith, plaintiff’s team
leader, and Nelson again stated that she needed to speak to Cobb in human resources
and that plaintiff was not to report to work until she spoke with Cobb.20 (Compare Doc.
37, Exhibit A, Mileski depo., at 62-63 with Doc. 37, Exhibit B, Nelson depo., at 106-108.)
Nelson remembers plaintiff telling them (that is, Smith and her) about her childhood
issues and that she had been suffering from depression for several months prior to May
31, 2013. (See id. at 105-107.)

20

Nelson would consult with Cain and Cobb before disciplining members of her
staff. (See Doc. 37, Exhibit B, Nelson depo., at 35 & 37.) For her part, Cobb testified that she did
not learn of the events of May 31, 2013, specifically that plaintiff tried to harm herself by taking
pills, until she spoke with Nelson for the first time on June 3, 2013. (Doc. 37, Exhibit D, Cobb
depo., at 134-135.)

10

Between June 3, 2013 and June 10, 2013, when plaintiff signed the Employee
Assistance Program (“EAP”) Referral Form presented to her (compare Doc. 37, Exhibit B,
Nelson depo., at 120-121 with id., Exhibit 7 to Nelson depo., Bates No. 000001), Nelson
not only spoke with Cobb (see Doc. 37, Exhibit B, Nelson depo., at 104-105 & 109; Doc. 31,
Exhibit 4, Nelson depo., at 110-113 & 115-118) but, as well, there were a number of
telephone and email communications between Cobb and Cain21 (see Doc. 31, Exhibit 3,
Cain depo., at 38, 40, 54-56, 62-63 & 70-73; Doc. 37, Exhibit C, Cain depo., at 50- 52) and
Cobb and Randy Stembridge (see Doc. 31, Exhibit 2, Cobb depo., at 144-145 & 156).22
Although there was talk among these four individuals that plaintiff should be
terminated for job abandonment, or terminated with 5 EAP sessions, in line with what
they viewed as the hospital’s consistent practice (compare Doc. 37, Exhibit C, Cain depo.,
at 63-64 (the consistent hospital practice was to fire employees for job abandonment) and
Doc. 31, Exhibit 4, Nelson depo., at 112 (from a policy standpoint, the typical response to
job abandonment is termination) with Doc. 131, Exhibit 2, Cobb depo., at 144-145 & 155156 (at some point on June 7, 2013, the decision had been made by her and Stembridge to

21

Cobb’s investigation into the events of May 31, 2013, consisted of speaking to
Nelson, Pappas, and Cain. (Doc. 131, Exhibit 2, Cobb depo., at 142-151, 153 & 154; but cf. Doc.
Doc. 31, Exhibit 6, Pappas depo., at 31 (witness could not remember Cobb contacting him about
his knowledge of May 31, 2013).) Essentially, all Cobb did was to confirm that plaintiff got her
assignment and then left the hospital, which she considered job abandonment. (Doc. 31, Exhibit
2, Cobb depo., at 144; compare id. with Doc. 37, Exhibit B, Nelson depo., at 104 (Nelson’s
testimony that Cobb informed her that it constitutes job abandonment for an employee to clock
into work but not report to her assignment).) Cobb did acknowledge that she was cognizant
(based on information relayed to her by Nelson) that plaintiff had tried to take her own life on
May 31, 2013 (Doc. 31, Exhibit 2, Cobb depo., at 162-163), and Nelson believes she told Cobb that
plaintiff had “stressful things going on.” (Doc. 37, Exhibit B, Nelson depo., at 109.)
22

Stembridge was the director of employee relations. (See Doc. 37, Exhibit D, Cobb

depo., at 83.)

11

terminate plaintiff but let her have 5 EAP sessions)),23 it was ultimately decided that
plaintiff should be referred to EAP for mandatory treatment (see Doc. 131, Exhibit 2,
Cobb depo., at 156).24 According to Cobb, Stembridge is the person who “stepped” back
and convinced her that the best course to follow so that plaintiff could get treatment
without losing her benefits25 was a referral for mandatory EAP treatment. (Doc. 31,
Exhibit 2, Cobb depo., at 157.) Thus, plaintiff was not terminated at that time (see id. at
162 (no termination decision was written down at this time));26 instead, based on the
referral to mandatory EAP, plaintiff applied for and was approved for family medical
leave under the Family Medical Leave Act (“FMLA”)27 and short-term disability

23

There was no form of discipline discussed other than termination (Doc. 31, Exhibit
4, Nelson depo., at 116) and, indeed, plaintiff was at no time suspended or written up as a result
of the events of May 31, 2013 (see Doc. 37, Exhibit B, Nelson depo., at 72-73).
24

Nelson did not want to terminate plaintiff (Doc. 37, Exhibit B, Nelson depo., at
112); however, she never expressed this position to Cobb (id. at 124).
25

Plaintiff’s benefits would have ended at midnight on the date of termination. (See
Doc. 37, Exhibit C, Cain depo., at 40.)
26

Interestingly, even though both Cain and Cobb testified that the human resources
director (Cobb) and the director of employee relations (Stembridge) only made employment
recommendations (compare Doc. 37, Exhibit D, Cobb depo., at 201-202 with Doc. 37, Exhibit C,
Cain depo., at 58-59), it appears that Cobb and Stembridge were driving the “train” with respect
to Mileski in this regard given the tenor of Cain’s June 7, 2013 email to Cobb: “So no
termination?” (See Doc. 31, Exhibit 3, Cain depo., at 71-72; compare id. with Doc. 37, Exhibit 3 to
Cain depo., Bates No. 000007.)
27

Once plaintiff completed the proper forms, approval for family medical leave was
automatic. (Doc. 37, Exhibit F, Deposition of Pam Bailey, at 42-43.) According to Cobb, on June
10, 2013, plaintiff initially would have been placed on unpaid administrative leave of absence
(“LOA”)—not suspended—but that when the FMLA certification was processed, the payroll
system would be changed based upon backdating the approved FMLA leave to May 31, 2013.
(See Doc. 37, Exhibit D, Cobb depo., at 100-102.) Before retroactive application of FMLA leave to
May 31, 2013, the days plaintiff missed were not counted against her with respect to the
hospital’s time and attendance policy. (Id. at 102.)

12

beginning May 31, 201328. (See Doc. 37, Exhibit F, Bailey depo., at 40-45.)29 Cobb testified
that this “action” reflected an exception to the policy for immediate termination for job
abandonment only with respect to extending plaintiff’s benefits; according to Cobb, the
hospital was “putting off” a decision on job abandonment pending completion of EAP
and consideration of any information or mitigating factors that arose, though she
admitted that at that time (i.e., June 7, 2013), unless something unknown came to the
attention of human resources, the process would conclude in plaintiff’s termination. (See
Doc. 31, Exhibit 2, Cobb depo., at 157-161.)
Plaintiff met with Blair Nelson and Georgia Cain on June 10, 2013 and executed
the EAP30 referral form. (Compare Doc. 31, Exhibit 3, Cain depo., at 75 & Doc. 31, Exhibit

28

Plaintiff was actually paid for one hour of work on May 31, 2013 (Doc. 31, Exhibit
5, Bailey depo., at 67; see also Doc. 37, Exhibit D, Cobb depo., at 191), with the remaining time
being designated family medical leave and short-term disability (Doc. 31, Exhibit 5, Bailey depo.,
at 50).
29

Mileski’s start date for short-term disability was actually June 14, 2013 inasmuch
as the short-term disability administrator, Matrix, required all eligible applicants to meet an 80hour threshold before cutting checks. (See id. at 45.) Thomas Hospital’s short-term disability plan
is “designed to provide a source of income replacement for a specific period of illness or injury
for eligible employees[,]” including “[r]egular full-time employees who ha[d] been in an eligible
status for at least six months[.]” (Doc. 37, Exhibit 5 to Nelson depo., at Bates No. 000010.)
Even though plaintiff’s short-term disability did not “kick in” until June 14, 2013, she was
paid for the two-week period between May 31, 2013 and June 14, 2013 because she utilized her
accrued Earned Time Off (“ETO”). (See Doc. 37, Exhibit A, Mileski depo., at 69.) As the employee
handbook explains: “ETO may be used for holidays, vacation and illness (yours or a family
member) or to take care of personal business.” (Doc. 37, Exhibit 5 to Nelson depo., at Bates No.
000010.)
30

The Employee Assistance Program (EAP) was geared to helping the employees of
the Infirmary Health System (and their dependents) with issues that could “affect job
performance and/or [their] personal lives.” (Doc. 37, Exhibit 5 to Nelson depo., at Bates No.
000010; compare id. with Doc. 37, Exhibit D, Cobb depo., at 75 (describing EAP as a benefit offered
employees, through counseling services, to help with an array of health and family issues).) An
employee could get to the program simply by a reminder from Cobb of the availability of that
benefit or via a decision made by Cobb and Stembridge that mandatory EAP was necessary. (Id.
at 76 & 82.)

13

4, Nelson depo., at 120 with Doc. 37, Exhibit 7 to Nelson depo., Bates No. 000001.) On
that form, the HR supervisor, Lisa Cobb, in “marking” the reason for the referral, did not
“check” any reason besides “Other,” even though the form instructs the person making
the referral to “Check all that apply.” (Id.) The “reasons” not checked by Cobb include
“Disregard for the safety of others,” and “Insubordination[;]” instead, Cobb checked
“Other” and offered the following comments/information regarding Mileski’s
performance/behavior: “Concern job abandonment. Employee refused assignment, left
building. Later called implying she was going to do something more drastic. Company
concern for fit for duty.” (Id.)31 Nelson and Cain discussed the form with Mileski on June
10, 2013 and informed her that her participation in EAP was mandatory and a condition
of her job (Doc. 31, Exhibit 4, Nelson depo., at 121), as the form itself provides (see Doc.
37, Exhibit 7 to Nelson depo., at Bates No. 000001 (“I understand and agree that as a
condition of continued employment, I will attend an assessment by the IHS Employee
Assistance Program. I further understand and agree to abide with any recommendations
for treatment, care and/or counseling as given by the EAP. I will complete the course of
treatment as recommended or arranged through the EAP and cooperate with any such
treatment, counseling or care. I understand and agree that failure to abide by the
treatment plan or other recommendations of EAP may be grounds for immediate
termination. My signature below indicates my acceptance of these terms and authorizes
my employer and Phases EAP to exchange information regarding this referral.”
(emphasis supplied)), but did not otherwise inform plaintiff that she was going to be
terminated for job abandonment at the conclusion of her EAP referral (compare Doc. 37,
31

Karen Arnold was sent a copy of the referral form. (See id.)

14

Exhibit B, Nelson depo., at 121-122 with Doc. 37, Exhibit C, Cain depo., at 52 (plaintiff
was not told that the decision to fire her had already been made because they wanted
her to use her benefits to get the help she needed) & Doc. 31, Exhibit 3, Cain depo., at 56
(Cain’s testimony that they were going to wait and see whether plaintiff would be
cleared through EAP to come back to work but insists that even if she was cleared they
were not going to reconsider the situation and were going to terminate plaintiff)). At that
meeting and in her previous discussions with Cobb and Nelson, Cain was concerned
with plaintiff’s fitness for duty as set forth in the employee handbook32. (See Doc. 37,
Exhibit C, Cain depo., at 44.) Cain thought the referral to EAP was appropriate in light of
her concern with whether plaintiff was mentally (that is, whether she was in the proper
frame of mind) and physically capable of performing the essential functions of her job.
(See id., at 45-49.) Interestingly, Cobb apparently did not share this concern and testified
that she made the “fit for duty” notation on the referral form because she believed that
was required in order to refer an employee for mandatory EAP (compare Doc. 37, Exhibit
32

That portion of the employee handbook reads, in relevant part, as follows:

A critical element in providing [a safe] environment [for patients, visitors, medical
staff and employees] is the ability of employees to perform the essential functions
of their positions at all times. Reasonable accommodations may be made in
accordance with administrative guidelines maintained to assure compliance with
the Americans with Disabilities Act of 1990 (ADA). Any employee who is
suspected of being unable to perform the essential functions of their positions will
be required to cooperate with any means of investigation (including medical,
physical, mental, drug or other assessments as required) to verify fitness for duty.
Employees requesting accommodations should present those in writing to the
Employee Health Department.
Any employee who has been away from work while under the care of a physician
may be required to submit a physician’s authorization to return to work and/or
report to the Employee Health Department so that fitness for duty can be
determined.
(Doc. 37, Exhibit 5 to Nelson depo., at Bates Nos. 000018-000019.)

15

D, Cobb depo., at 125 (“That’s just a term we typically use in referral for EAP.”) and id.
at 127 (it was protocol, routine, and what was typically done for a referral to mandatory
EAP, and she thought she had to put it on the form to obtain an EAP referral) with Doc.
31, Exhibit 2, Cobb depo., at 129 (Cobb did not want EAP to decide whether plaintiff was
fit for duty but, instead, wanted her to get help for what happened at the pier));
however, it is clear that there was no requirement that a reference to whether an
employee was “fit for duty” necessarily had to appear on a referral form in order for
EAP services to be provided (Doc. 31, Exhibit 7, Roldan depo., at 26-27). When a concern
over “fit for duty” is contained on an EAP referral form, Roldan assumes she is being
asked for a fit-for-duty assessment. (Id. at 27; see also id. at 26 (“When they ask for a fit for
duty, typically they want me to contact physicians, treatment providers, or actually
make referrals to physicians or accessors that can determine if a professional is
cognitively and emotionally ready to provide are for patients.”); compare id. with Doc. 37,
Exhibit J (“[E]mployer wants evaluation & clearance by EAP prior to return to work.”).)
Based upon receipt and execution of the EAP referral form, Mileski was aware
that she needed to schedule an appointment with Helena Roldan. (See Doc. 37, Exhibit A,
Mileski depo., at 64; cf. id. at 63 (Nelson told her on June 7, 2013, that Cobb wanted
plaintiff to see Roldan).) Plaintiff’s first meeting with Roldan occurred on June 21, 2013.
(Doc. 31, Exhibit 7, Roldan depo., at 19.) Prior to that meeting, Mileski’s therapist, Susie
Carpenter, suggested that Roldan was probably going to want plaintiff to enroll in The
Harbor program, so plaintiff enrolled in that program and completed the paperwork for
family medical leave and short-term disability. (See Doc. 37, Exhibit A, Mileski depo., at
65-66.) When plaintiff met with Roldan on June 21, 2013, and informed her that she was
already being treated for depression at The Harbor, Roldan simply let Mileski stay at
The Harbor for treatment. (Doc. 31, Exhibit 7, Roldan depo., at 19-20.)
16

As aforesaid, Mileski was granted family medical leave for the time off, save for
the first hour of her May 31, 2013 shift33 (and, as well, was paid for the time off because
of her accrual of EOT and her approval for short-term disability). The hospital’s policy
respecting family medical leave and the FMLA reads, in relevant part, as follows:
In accordance with the Family and Medical Leave Act (FMLA), eligible
employees are allowed up to 12 weeks of unpaid leave during a rolling 12month period.
.

.

.

FMLA leave may be granted to eligible employees for:
1.
2.
3.
4.

the birth and care of the employee’s newborn child
the care of the employee’s newborn child after birth
the placement of a child with an employee for adoption or foster care
the care of the employee’s spouse, son, daughter, or parent who has a
“serious health condition,” or
5. a “serious health condition” that makes the employee unable to work
(because of a serious health condition).
.

.

.

You are required to provide advance notice of 30 days for leave of absence
requests in cases of foreseeable need, and notice “as soon as practicable” in
cases of unforeseeable need. Leave of Absence request forms are provided
in all affiliate location Human Resources Departments.
.

.

.

In most cases, if you are ready to return to work from an approved FMLA
leave, you will be restored to either your original job or to a position of
equal responsibility, pay and benefits.
(Doc. 37, Exhibit 5 to Nelson depo., at Bates Nos. 000012-000013.) It is clear, based on
this policy, Cobb’s ultimate admission, and other evidence in the record, that plaintiff
was granted FMLA leave based upon her treatment for a serious medical condition
33

Again, Mileski was paid for one hour of work on May 31, 2013. (Doc. 31, Exhibit 2,
Cobb depo., at 191.)

17

(depression) that made her unable to work. (Compare id. at Bates No. 000012 with Doc. 37,
Exhibit D, Cobb depo., at 94-95 (Cobb admitted that the only one of the five definitions
Mileski could fall under was that she was taking—and qualified for—FMLA leave for
herself for treatment of a serious health condition but she did not know the exact nature
of that condition) & 116 (Cobb knew that since plaintiff was out on FMLA leave for her
own serious medical condition she had to fall under some portion of the FMLA
definition contained in the handbook)34; Doc. 37, Exhibit 7 to Cobb depo., at Bates No.
00007 (leave of absence form completed by Mileski on June 13, 2013 reflected that she
was requesting FMLA leave for herself); and Doc. 31, Exhibit 7, Roldan depo., at 20 & 2829 (plaintiff told her during their first meeting on June 21, 2013 that she had struggled
with depression since the age of 12 and that it got worse beginning in the fall of 2012 and
she could not dig herself out and, therefore, attempted suicide on May 31, 2013; when
someone is suicidal, the first step Roldan takes on a referral is to pair that person with a
therapist and since plaintiff was already engaged with The Harbor, Roldan allowed her
to continue with that treatment).)35 Although all full-time employees are entitled to 12
weeks (that is, 432 hours since full-time employees worked 36 hours per week) of FMLA
leave each year (compare Doc. 37, Exhibit D, Cobb depo., at 82-83 with Doc. 37, Exhibit F,
Bailey depo., at 28-29)), and Bailey initially informed Cobb and Nelson, on June 14, 2014,
that plaintiff had 324 hours of FMLA leave available for her use (see id., at 47), she later
incorrectly informed Cobb that Mileski’s FMLA leave expired on July 7, 2013 and
34

Cobb was responsible for Thomas Hospital’s personnel and HR matters (Doc. 37,
Exhibit D, Cobb depo., at 31-32), including EAP referrals, FMLA leave, and short-term disability
(see id. at 76, 82-83 & 87).
35

Cain was also cognizant that plaintiff was on FMLA leave. (Doc. 37, Exhibit C,
Cain depo., at 79.)

18

incorrectly penned a letter for Cobb’s signature advising plaintiff that her FMLA leave
had expired as of July 7, 201336 (compare Doc. 31, Exhibit 5, Bailey depo., at 51-56 with
Doc. 37, Exhibit A, Mileski depo., at 70-71 (she received a letter from Cobb dated July 16,
2013 advising that her FMLA leave hours expired on July 7, 2013)).37
After five or six weeks of treatment under the care of Dr. Stephen Lyrene, Mileski
was discharged from The Harbor Intensive Outpatient Program on or about July 18,
2013. (Compare Doc. 37, Exhibit I (showing a discharge date of July 18, 2013) with Doc. 37,
Exhibit 8 to Nelson depo., at Bates No. 001072 (Dr. Lyrene signed a release slip on July
17, 2013, advising that Mileski could return to work on July 22, 2013).) Susie Carpenter’s
letter dated July 22, 2013, which was penned to plaintiff’s treating physician, included
discharge instructions that plaintiff was to follow-up with her for individual counseling
and with Alabama Psychiatric Services for medication management. (Doc. 37, Exhibit I.)
The Harbor scheduled an appointment for Mileski to see Roldan on July 19, 2013; Roldan
seconded plaintiff’s return to work and plaintiff agreed to follow-up with Carpenter and
Dr. Robertson at Alabama Psychiatric. (Doc. 31, Exhibit 7, Roldan depo., at 21-22.)
Roldan did not place any restrictions on plaintiff’s return to work. (Id. at 22.)
36

As a result of Bailey entering incorrect information into the defendant’s computer
system, plaintiff was improperly shown as being on a non-FMLA leave of absence with shortterm disability pay. (See Doc. 31, Exhibit 5, Bailey depo., at 50-51.)
37

Based on the substance of Bailey’s testimony, Mileski’s FMLA leave obviously
would not have expired until a date after her termination on July 24, 2013 (Doc. 31, Exhibit 5,
Bailey depo., at 51-56) and, therefore, her job protection never stopped (cf. Doc. 57, Exhibit A,
Mileski depo., at 71 (plaintiff’s testimony that she was unaware that her job protection stopped
when her FMLA leave expired)). It is also clear, however, that Mileski’s job was not posted and,
on the date of her termination, the position was still vacant. (Doc. 37, Exhibit D, Cobb depo., at
184.)
Cobb testified that the job abandonment issue was not revisited on July 16, 2013 because
the hospital’s protocol was to hear from the employee about the incident before reaching a final
decision. (Doc. 37, Exhibit D, Cobb depo., at 175-176.)

19

With respect to job restoration upon return from FMLA leave, the FMLA
Appendix to Thomas Hospital’s employee handbook provides that “an employee must
be restored to the employee’s original job, or to an equivalent job with equivalent pay,
benefits, and other terms and conditions of employment. An employee’s use of FMLA
leave cannot result in the loss of any employment benefit that the employee earned or
was entitled to before using FMLA leave, nor be counted against the employee under a
‘no fault’ attendance policy.” (Doc. 37, Exhibit 5 to Nelson depo., at Bates No. 000037.)
On or about July 22, 2013, plaintiff called Nelson and informed her that she had
been released to return to work (compare Doc. 37, Exhibit A, Mileski depo., at 72-73 with
Doc. 37, Exhibit B, Nelson depo., at 128-129); the nurse manager told plaintiff that
although she was ready for her to come back to work (Doc. 37, Exhibit A, Mileski depo.,
at 73), she needed to speak with HR first (compare id. with Doc. 37, Exhibit B, Nelson
depo., at 129). Nelson informed Cobb by email that Mileski had been released by EAP
and Cobb sent Nelson a return email advising her to give plaintiff her (Cobb’s) direct
number so that she and Cain could meet with plaintiff. (See Doc. 37, Exhibit 6 to Cain
depo., Bates Nos. 000028-000029.)38 Nelson relayed Cobb’s direct number to Mileski (see
id. at Bates No. 000028); Mileski called the HR manager that same day, July 22, 2013, and
then met with Cobb and Cain that afternoon (Doc. 37, Exhibit A, Mileski depo., at 7374).39
38

Cobb was independently aware that EAP had released plaintiff to return to work.
(See Doc. 37, Exhibit 19 to Cobb depo., Bates No. 000136, Email from Karen Arnold to Lisa Cobb
(“Noelle saw Helena on the 19 . She is ok to return to work. She will follow up with Susie
Carpenter and Susie will report compliance to Helena going forward.”).)
th

39

When Cobb met with plaintiff on July 22, 2013, she was aware that the May 31,
2013 incident resulted in plaintiff’s FMLA leave and that Mileski’s FMLA leave was retroactively
dated to May 31, 2013, after the first hour of plaintiff’s May 31, 2013 shift. (Doc. 31, Exhibit 2,
Cobb depo., at 190-191.)

20

Before meeting with Mileski, the decision had been made to terminate plaintiff
according to Cain (Doc. 31, Exhibit 3, Cain depo., at 82); however, Cain and Cobb heard
plaintiff’s “side of the story” to be fair and because “they” always retain the right change
a decision based upon information not available to them during the investigation (id. at
82-83). Nevertheless, Cain heard nothing in the meeting to change her mind (re:
termination), does not know if plaintiff could have done anything to change her mind
(id. at 84), and had no explanation for why Cobb asked plaintiff why she should be
allowed to return to work in light of the decision to terminate plaintiff (see Doc. 37,
Exhibit C, Cain depo., at 89). As reflected in the deposition testimony of Cobb and Cain,
as well as Cobb’s handwritten notes of the meeting, which were later “typed up,”
plaintiff told the HR manager and nursing director a number of things about the May 31,
2013, and otherwise (compare Doc. 37, Exhibit 7 to Cain depo. & Doc. 31, Exhibit 14 to
Cobb depo. with Doc. 37, Exhibit D, Cobb depo., at 194-195 & 197; Doc. 31, Exhibit 2,
Cobb depo., at 198-199 & Doc. 37, Exhibit C, Cain depo., at 89-90); however, it is clear
that Cobb did not write down verbatim each and every word that was exchanged during
that meeting (Doc. 37, Exhibit D, Cobb depo., at 194) and did not have plaintiff look
through her handwritten (or the later typewritten) notes to check for accuracy (Doc. 31,
Exhibit 2, Cobb depo., at 191-192). Therefore, for instance, while it is clear that plaintiff
told Cain and Cobb that she had a history of depression that had worsened because of
dealing with the loss of her mother, a new child, and a custody dispute with her exhusband involving her oldest child (who has a chronic illness), the latter spilling over
into a fight with her ex-husband the night before her morning shift on May 31, 2013
(compare Doc. 37, Exhibit C, Cain depo., at 89-90 with Exhibit 7 to Cain depo.), Cobb
insists that she correctly reflected in her handwritten notes that what caused plaintiff to
become upset and leave the hospital on May 31, 2013 was seeing the floating assignment
21

on the staffing book (see Doc. 31, Exhibit 2, Cobb depo., at 198). It is clear to the
undersigned, however, as previously indicated, that Mileski was upset before she set
foot on hospital property and at some point following her arrival on the MICU and
looking at the assignment book, she could cope no longer and “just went away
somewhere” and “’was not in [the] frame of mind’” to tell Nelson (or anyone else) that
she was leaving the hospital40. (See Doc. 37, Exhibit 7 to Cain depo., at Bates No. 000060.)
During this meeting, plaintiff was also asked why she should be allowed to keep
her job, to which she responded that she liked her job, she was good at it, she had never
been in any trouble or counseled for anything, she had a good working relationship with
her coworkers, and that she was liked by her patients. (Doc. 37, Exhibit A, Mileski depo.,
at 74; compare id. with Doc. 37, Exhibit 7 to Cain depo.) According to Mileski, she did not
tell Cain and Cobb that she was willing to accept punishment because what she did was
wrong and cannot recall whether she told the pair that she was anxious about returning
to work. (Doc. 37, Exhibit A, Mileski depo., at 75; compare id. with Doc. 37, Exhibit 7 to
Cain depo.) What all three agree upon is that Mileski was told that Cobb and Cain
would talk and get back to her later in the week. (Compare Doc. 37, Exhibit A, Mileski
depo., at 75 with Doc. 37, Exhibit C, Cain depo., at 91-92 & Exhibit 7 to Cain depo.)
Immediately after the meeting, Cain and Cobb discussed the matter and basically
determined that the issue was plaintiff’s job abandonment and she should be terminated.
(Doc. 37, Exhibit C, Cain depo., at 92.) Cobb also spoke with Stembridge at 2:49 p.m. on
July 22, 2013, and he recommended that plaintiff not be allowed to return to work.
40

Cobb’s sole focus was on plaintiff’s alleged statement to her that on the date in
question she saw her floating assignment, got upset, and left the hospital, actions which Cobb
considered to be job abandonment. (Doc. 37, Exhibit D, Cobb depo., at 197 (“When she told me
she saw the assignment on the staffing book and she got upset and left, to me, that defined job
abandonment.”).)

22

(Compare Doc. 31, Exhibit 2, Cobb depo., at 200 with Doc. 37, Exhibit 7 to Cain depo., at
Bates No. 000061.) According to Cobb, the final decision was made by Bill McLaughlin
and Cain; she and Stembridge recommended termination for job abandonment and
McLaughlin and Cain concurred in that recommendation and determined that plaintiff
was to be terminated per hospital policy for job abandonment. (See Doc. 31, Exhibit 2,
Cobb depo., at 200-204; Doc. 37, Exhibit C, Cain depo., at 86.) Cobb and Cain then met
with Mileski again on July 24, 2013 and informed her that she was being terminated and
would not be allowed to return to work because she had abandoned her job on May 31,
201341. (Compare Doc. 37, Exhibit A, Mileski depo., at 75-76 with Doc. 37, Exhibit C, Cain
depo., at 93-94 & Exhibit 8 to Cain depo., at Bates No. 000059.)42 At the time this decision
was made, there were no concerns about plaintiff’s abilities to perform the essential
functions of her job. (Doc. 37, Exhibit C, Cain depo., at 59.) Even though there were no
concerns in this regard, Cain was certainly concerned about the future possibility of
plaintiff mentally abandoning her job, as captured in the following July 24, 2013
handwritten notes of Cobb: “Georgie Cain concerned that she works in critical care area.
To abandon job puts patients as risk—miss a critical order or comm. to RN or
physician—failed to note critical observation or initials in chart.” (See Doc. 37, Exhibit 8
to Cain depo., Bates No. 000059.) That these captured observations of Cain were
forward-looking is clear because the evidence before Cobb and Cain did not establish
41

To plaintiff, this meant that she left work without permission. (Doc. 37, Exhibit A,
Mileski depo., at 76.)
42

Cain admitted that Mileski expressed her disappointment with the decision and
told them (that is, Cain and Cobb) the reasons she should be allowed to return to work and that
they should have spoken to Nelson and her team leader regarding the nature of her depression.
(See Doc. 37, Exhibit C, Cain depo., at 95.) According to Cain, the reasons Mileski proffered for
returning to her job had nothing to do with the basis for termination, that is, job abandonment.
(Id.)

23

that any patients were detrimentally impacted on account of plaintiff not reporting to the
cardiac unit on May 31, 2013 (see, e.g., Doc. 31, Exhibit 3, Cain depo., at 109).
In addition to the foregoing, on July 24, 2013,43 when Cobb was recommending
that plaintiff be terminated for leaving the job, she was fully cognizant that the time
period for which plaintiff was gone from work on May 31, 2013—after the first hour of
that day—was later approved as FMLA leave. (Doc. 37, Exhibit D, Cobb depo., at 204206; see also id. at 219 (Stembridge was also aware that plaintiff was approved for FMLA
leave on May 31, 2013); cf. id. at 237-238 (Stembridge was as aware as she was when
recommending termination that plaintiff had been on short-term disability but denied
discussing her short-term disability status when trying to determine whether to let her
go).)44
While Cobb admitted that plaintiff leaving without authorized approval on May
31, 2013 was an example of an unscheduled absence/occurrence under the defendant’s
time and attendance policy (Doc. 37, Exhibit D, Cobb depo., at 114-115; see also Doc. 31,
Exhibit 2, Cobb depo., at 211),45 which is clearly defined in the employee handbook,46 she

43

On the Personnel Action Request, which Cobb signed on July 25, 2013, the
termination code entered for job abandonment—123—reflects that plaintiff was not eligible for
rehire (Doc. 37, Exhibit 20 to Cobb depo.; see also Doc. 31, Exhibit 2, Cobb depo., at 230-231),
though Cobb’s notes of the meeting with plaintiff on July 24, 2013 reflect that the human
resources manager thought Mileski could be considered for employment in the future (compare
Doc. 37, Exhibit 8 to Cain depo., Bates No. 000059 with Doc. 37, Exhibit C, Cain depo., at 95-96).
44

Cobb fully appreciates that an employer cannot terminate, or otherwise
discriminate against, an employee for taking FMLA leave. (Doc. 37, Exhibit D, Cobb depo., at
204.)
45

Cobb testified that had plaintiff told her supervisor on May 31, 2013 that she was
ill and left that would be an unscheduled absence, and it also would have been an unscheduled
absence if plaintiff clocked in, got her assignment, told her supervisor she was ill, and then left
after clocking out. (Doc. 37, Exhibit D, Cobb depo., at 212 & 215.) Cobb also testified that it was
her understanding that any absence resulting from a qualified illness covered under the FMLA is

(Continued)
24

was immovable in her position that what plaintiff did on May 31, 2013 (leaving after
clocking in and receiving her assignment)47 constitutes job abandonment for which it has
always been Thomas Hospital’s consistent policy to terminate employment (compare Doc.
131, Exhibit 2, Cobb depo., at 108, 158-159, 198-199 & 209-210 & Doc. 42, Exhibit 2, Cobb

not considered an occurrence under the defendant’s absence, tardiness and timekeeping policy.
(Id. at 211-212.)
46

The employee handbook contains a description of the Infirmary Health System’s
Attendance Policy, which reads, in relevant part, as follows:
Infirmary Health System follows an occurrence-based policy for tardiness and
unscheduled absences. An “occurrence” could be any:
1. unscheduled absence
2. instance of tardiness
3. instance of leaving without authorized approval, or
4. instance of a missed time-card punch
The following schedule of occurrences (tracked on a rolling 12-month period) and
corrective action will be followed:
Number of Occurrences

Corrective Action

4

Verbal warning

6

Written Warning

8

Final written warning

10

Suspension/Termination

Employees who fail to follow proper procedures (call-in notification/guidelines)
or who are found to have unacceptable patterns of tardiness or absenteeism will
be subject to corrective action up to and including termination.
(Doc. 37, Exhibit 5 to Nelson depo., at Bates No. 000026.) As reflected above, and as admitted by
Cobb, leaving work early without authorized approval is considered an “occurrence” under
Thomas Hospital’s attendance policy. (Doc. 31, Exhibit 2, Cobb depo., at 110 & 115.)
47

“[S]he told me she saw her assignment and was upset and left. She made the
choice of leaving after she saw her assignment.” (Doc. 37, Exhibit D, Cobb depo., at 217.)

25

depo., at 111-112 with Doc. 31, Exhibit 8, Affidavit of Lisa Cobb, at ¶ 2 (“It has
consistently been the practice at Thomas Hospital to terminate employees for job
abandonment in the context of leaving their assigned duties at the hospital without
permission, without notifying anyone and/or without clocking out. Thomas considers
this patient abandonment and a gross violation of hospital policy. Similarly, Thomas has
consistently terminated employees who appear for work and refuse to perform
assignments alternate to their regular assignments.”)48), even though job abandonment
is nowhere defined in the employee handbook or listed as a terminable offense (see Doc.
37, Exhibit 5 to Nelson depo., at Bates No. 000025). According to Cobb, even though
Thomas Hospital does not meet with employees and tell them where job abandonment
falls under its termination policy (Doc. 37, Exhibit D, Cobb depo., at 109), any employee
reading page 25 of the handbook would appreciate that job abandonment would fall
under one of three categories, namely, insubordination, refusal to perform assigned
duties, or an action that could result in imminent or substantial danger to the life, health,
or property of employees, patients or other customers (Doc. 31, Exhibit 2, Cobb depo., at
108 & 209-210).
INVOLUNTARY TERMINATION
.

.

.

48

The remainder of Cobb’s affidavit reads, as follows: “In reviewing available
information, I have discerned that, in the last five years, Thomas has terminated at least five
people, in addition to Noelle Mileski, for this type of work violation. One was terminated for
leaving her shift without permission or notice and without clocking out to perform a personal
errand at her home. One was terminated when he walked off the job mid-shift because he was
upset with his supervisor’s decision. Another was terminated when she had permission to leave
for two hours but failed to return at the appointed time and did not return telephone calls
looking for her. Two other employees were terminated for refusing to accept assignments to float
from their regular unit to another unit. [] I am not aware of any situation where an employee
walked off the job at Thomas without permission and was not terminated.” (Id. at ¶¶ 3-4.)

26

.
Violations: Infirmary Health System reserves the right to
immediately discharge (without notice or pay in lieu of notice) any
employee who is considered to be in gross violation of IHS policies,
procedures, or standards of conduct. “Gross violation” includes, but is not
limited to, the following:
—Theft/destruction of property
—Violence or other inappropriate behavior (including behavior that could
have an adverse effect on the community’s confidence in or perception of
the System)
—Insubordination or refusal to perform assigned duties
—Exhibiting behavior contrary to the mission and values
—Any action[] that could result in imminent or substantial danger to life,
health, or property of any employees, patients, or other customers.
(Doc. 37, Exhibit 5 to Nelson depo., at Bates No. 000025.)
CONCLUSIONS OF LAW
A.

Summary Judgment Standard.

Summary judgment is proper “if the

movant shows that there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (“The
mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment.”); Garczynski v. Bradshaw,
573 F.3d 1158, 1165 (11th Cir. 2009) (“[S]ummary judgment is appropriate even if ‘some
alleged factual dispute’ between the parties remains, so long as there is ‘no genuine issue
of material fact.’”).
The party seeking summary judgment has the initial responsibility of informing
the court of the basis for the motion and of establishing, based upon the discovery
instruments outlined in Rule 56(c), that there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477
U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see also Allen v. Board of Public

27

Educ. for Bibb County, 495 F.3d 1306, 1313 (11th Cir. 2007) (“The moving party bears the
initial burden of showing the court, by reference to materials on file, that there are no
genuine issues of material fact that should be decided at trial.”). Once this initial
demonstration is made, the “responsibility then devolves upon the non-movant[s] to
show the existence of a genuine issue . . . [of] material fact.” Fitzpatrick v. City of Atlanta, 2
F.3d 1112, 1116 (11th Cir. 1993); see also Allen, supra, at 1314 (“‘When a moving party has
discharged its burden, the non-moving party must then “go beyond the pleadings,” and
show by its own affidavits, or by “depositions, answers to interrogatories, and
admissions on file,” designate specific facts showing that there is a genuine issue for
trial.’”); see Comer v. City of Palm Bay, Florida, 265 F.3d 1186, 1192 (11th Cir. 2001) (“Once
the moving party discharges its initial burden of showing that there is an absence of
evidence to support the non-moving party’s case, the non-moving party must specify
facts proving the existence of a genuine issue of material fact for trial confirmed by
affidavits, ‘”depositions, answers to interrogatories, and admissions on file.”’”).
Forbidding reliance upon pleadings precludes a party from
“choos[ing] to wait until trial to develop claims or defenses relevant to the
summary judgment motion.” . . . This effectuates the purpose of summary
judgment which “‘is to pierce the pleadings and to assess the proof in
order to see whether there is a genuine need for trial.’” . . . Thus, “mere
general allegations which do not reveal detailed and precise facts” will not
prevent the award of summary judgment upon a court’s determination
that no genuine issue for trial exists.
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 592 (11th Cir.), cert. denied sub nom.
Jones v. Resolution Trust Corp., 516 U.S. 817, 116 S.Ct. 74, 133 L.Ed.2d 33 (1995); see also
LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 835 (11th Cir. 1998) (“[The nonmoving
party] must raise ‘significant probative evidence’ that would be sufficient for a jury to
find for that party.”). In other words, there is no genuine issue for trial “[w]here the
record taken as a whole could not lead a rational trier of fact to find for the non-moving

28

party[.]” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.
1348, 1356, 89 L.Ed.2d 538 (1986); see Comer, supra, 265 F.3d at 1192 (“Summary judgment
is required where the non-moving party’s response to a motion is merely ‘a repetition of
his conclusional allegations’ and is unsupported by evidence showing an issue for
trial.”).
In considering whether the plaintiff is entitled to summary judgment in this case,
the Court has viewed the facts in the light most favorable to the plaintiff. Comer, supra,
265 F.3d at 1192 (“We view the evidence and all factual inferences raised by it in the light
most favorable to the non-moving party, and resolve all reasonable doubts about the
facts in favor of the non-moving party.”).
The requirement to view the facts in the nonmoving party’s favor
extends only to “genuine” disputes over material facts. A genuine dispute
requires more than “some metaphysical doubt as to the material facts.” A
“mere scintilla” of evidence is insufficient; the non-moving party must
produce substantial evidence in order to defeat a motion for summary
judgment.
Garczynski, supra, 573 F.3d at 1165 (internal citations omitted). In addition, “[t]here is no
burden upon the district court to distill every potential argument that could be made
based upon the materials before it on summary judgment.” Resolution Trust Corp., supra,
43 F.3d at 599. Accordingly, the Court limits its review to those arguments expressly
advanced by the parties.
B.

ADA Claim. In Count I of her complaint, plaintiff alleges that she was

subject to discrimination in violation of the Americans with Disabilities Act (Doc. 1, at 89). In her brief in opposition to defendant’s motion for summary judgment, Mileski has
voluntarily dismissed her claim(s) for failure to accommodate under the ADA (see Doc.
36, at 15 n.15); therefore, the Court considers plaintiff’s remaining claim under the ADA
that defendant unlawfully terminated her in violation of the ADA (Doc. 36, at 15-27). As

29

recognized by the Eleventh Circuit, “[i]n part as a reaction to Supreme Court decisions in
cases like Sutton v. United Air Lines, Inc., 527 U.S. 471, 482, 119 S.Ct. 2139, 144 L.Ed.2d 450
(1999) (whether an individual is disabled must be determined with reference to
corrective measures), and Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 196-97,
122 S.Ct. 681, 151 L.Ed.2d 615 (2002) (interpreting the phrase ‘substantially limits’ to
mean limiting to a considerable or large degree, and the phrase ‘major life activities’ to
mean activities that are of central importance to daily life), Congress made significant
changes to the ADA by enacting the ADA Amendments Act of 2008 [], Pub. L. No. 110325, 122 Stat. 3553, which became effective on January 1, 2009.” Mazzeo v. Color
Resolutions Int’l, LLC, 746 F.3d 1264, 1267 (11th Cir. 2014). The general effect of the
changes wrought by the Amendments Act was to “broaden the ADA’s coverage[,]”
Moore v. Jackson County Bd. of Educ., 979 F.Supp.2d 1251, 1259 (N.D. Ala. 2013) (citations
omitted), by, among other things, promulgating “a more liberal standard of the term
‘disabled,’ [thereby] making it significantly easier for a plaintiff to show disability.”
Barlow v. Walgreen Co., 2012 WL 868807, *4 (M.D. Fla. Mar. 14, 2012); see also Mazzeo,
supra, 746 F.3d at 1268 (“When it enacted the ADAAA, Congress indicated that one of its
purposes was to ‘convey that the question of whether an individual’s impairment is a
disability under the ADA should not demand extensive analysis.’ 42 U.S.C. § 12101
note.”); 29 C.F.R. § 1630.1(c)(4) (“The primary purpose of the ADAAA is to make it easier
for people with disabilities to obtain protection under the ADA.”). And though this
Court must certainly apply the post-ADAAA version of the ADA to Mileski’s ADA
claim, since the critical events in this case all took place after the ADAAA went into
effect, Mazzeo, supra, 746 F.3d at 1267-1268, it bears noting that the general analytical
framework remains consistent, Beatty v. Hudco Indus. Prods., Inc., 881 F.Supp.2d 1344,
1351 (N.D. Ala. 2012) (“Despite the changes brought about by the ADAAA, courts still
30

utilize the same McDonnell Douglas burden-shifting analysis used in ADA and Title VII
cases.”).
“The ADA prohibits an employer from discriminating against a
‘qualified individual on the basis of disability.’” McCarroll v. Somerby of
Mobile, LLC, No. 14-11040, 2014 U.S. App. LEXIS 23356, at *4, 2014 WL
6996300 (11th Cir. Dec. 12, 2014) (quoting 42 U.S.C. § 12112(a)). “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 burden-shifting analysis employed in Title VII
employment discrimination cases.” Wascura v. City of S. Miami, 257 F.3d
1238, 1242 (11th Cir. 2001). In order to establish a prima facie case, the
plaintiff must satisfy the following elements: (1) that he has a disability
within the meaning of the ADAAA; (2) that he is qualified to perform the
job, i.e., that with or without reasonable accommodations, he can perform
the essential functions of his job; and (3) that he was discriminated against
because of his disability. . . . “If the plaintiff meets his prima facie burden,
and the defendant presents a legitimate, nondiscriminatory reason for its
actions, the plaintiff may then demonstrate that the reason given was a
pretext for disability discrimination.” Ward v. UPS, 580 Fed.Appx. 735, 740
(11th Cir. 2014) (unpublished decision).
Puckett v. Board of Trustees of the First Baptist Church of Gainesville, Inc., 2015 WL 690104,
*7 (N.D. Ga. Feb. 18, 2015) (footnote omitted); compare id. with Mazzeo, supra, 746 F.3d at
1267-1268 (“The ADA prohibits discrimination by an employer ‘against a qualified
individual on the basis of a disability’ in any of the ‘terms, conditions, [or] privileges of
employment.’ 42 U.S.C. § 12112(a). A ‘qualified individual’ is ‘an individual who, with
or without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires.’ Id. at § 12111(8). To
establish a prima facie case of employment discrimination under the ADA, a plaintiff
must show that, at the time of the adverse employment action, he had a disability, he
was a qualified individual, and he was subjected to unlawful discrimination because of
his disability.”) and Ward v. United Parcel Serv., 580 Fed.Appx. 735, 739-740 (11th Cir.
Sept. 11, 2014) (“The ADA holds that ‘[n]o covered entity shall discriminate against a
qualified individual on the basis of disability in regard to job application procedures,

31

the hiring, advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment.’ We analyze ADA
discrimination claims under the McDonnell Douglas burden-shifting framework. To
establish a prima facie case, a plaintiff may show that (1) he was disabled, (2) he was
qualified to perform the job, and (3) he was subjected to an adverse employment action
because of his disability. If the plaintiff meets his prima facie burden, and the defendant
presents a legitimate, non-discriminatory reason for its actions, the plaintiff may then
demonstrate that the reason given was a pretext for disability discrimination.” (internal
citations omitted)).
1.

Was Mileski Disabled? “The ADA defines the term ‘disability’ as (1) a

physical or mental impairment that ‘substantially limits one or more’ of an individual’s
‘major life activities,’ (2) a ‘record of such an impairment,’ or (3) ‘being regarded as
having such an impairment’ as described in subsection (1).” Mazzeo, supra, 746 F.3d at
1268, citing 42 U.S.C. § 12102(1). The defendant argues that plaintiff cannot establish a
covered disability (Doc. 33, at 9-12), to which Mileski demurs in contending “she has
actual mental disabilities, has a record of such impairment, and was regarded as
disabled by her employer.” (Doc. 36, at 18; see also id. at 18-22.)
a.

Turning to the first prong, this Court considers whether Mileski had a

mental impairment that substantially limited one of more of her major life activities.

49

49

With respect to whether an individual has a record of a disability, this prong is
met if the individual “has a history of, or has been misclassified as having, a mental or physical
impairment that substantially limits one or more major life activities.” 29 C.F.R. § 1630.2(k)(1).
Whether an individual has a record of an impairment that substantially limited a
major life activity shall be construed broadly to the maximum extent permitted
by the ADA and should not demand extensive analysis. An individual will be
considered to have a record of a disability if the individual has a history of an
impairment that substantially limited one or more major life activities when

(Continued)
32

Under the ADA, “major life activities include, bit are not limited to, caring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,
bending,

speaking,

breathing,

learning,

reading,

concentrating,

thinking,

communicating, and working.” 42 U.S.C. § 12102(2)(A); see also 29 C.F.R. § 1630.2(i)(1)(i)
(adding to the list, “interacting with others”). As for “substantially limited,” Mazzeo is
instructive:
[I]n passing the ADAAA, Congress stated that the Supreme Court’s
interpretation of the phrase “substantially limits,” in cases like Toyota
Motor, had “created an inappropriately high level of limitation necessary
to obtain coverage under the ADA,” and that “the primary object of
attention in cases brought under the ADA should be whether entities
covered by the ADA have complied with their obligations[.]” 42 U.S.C. §
12101 note. The ADA, therefore, now provides that the phrase
“substantially limits” “shall be interpreted consistently with the findings
and purposes of the [ADAAA],” id. at § 12102(4)(B), and that “an
impairment that is episodic or in remission is a disability if it would
substantially limit a major life activity when active,” id. at § 12102(4)(D).
And the EEOC, pursuant to its statutory authority to issue regulations
implementing the definition of “disability” in the ADA, see id. at § 12205a,
has further explained that the phrase “substantially limits” is to be
“construed broadly in terms of extensive coverage” and is “not meant to
be a demanding standard.” 29 C.F.R. § 1630.2(j)(1)(i). The EEOC’s
regulations also provide that an “impairment need not prevent, or
significantly or severely restrict, the individual from performing a major

compared to most people in the general population, or was misclassified as
having had such an impairment. In determining whether an impairment
substantially limited a major life activity, the principles articulated in paragraph
(j) of this section apply.
29 C.F.R. § 1630.2(k)(2). Importantly, “substantially limits” is not a demanding standard, and an
impairment is a disability “if it substantially limits the ability of an individual to perform a
major life activity as compared to most people in the general population[]” but the impairment
“need not prevent, or significantly or severely restrict, the individual from performing a major
life activity in order to be considered substantially limiting[;]” “[t]he comparison of an
individual’s performance of a major life activity to the performance of the same major life
activity by most people in the general population usually will not require scientific, medical, or
statistical analysis[;]” “[t]he determination of whether an impairment substantially limits a
major life activity shall be made without regard to the ameliorative effects of mitigating
measures[;]” and “[a]n impairment that is episodic or in remission is a disability if it would
substantially limit a major life activity when active.” 29 C.F.R. § 1630.2(j)(ii), (v), (vi) & (vii).

33

life activity in order to be considered substantially limiting;” the phrase
“substantially limits” shall be interpreted and applied to require a degree
of functional limitation that is lower than the standard for ‘substantially
limits’ applied prior to the ADAAA,” (with the exception of glasses or
contact lenses) the “determination of whether an impairment substantially
limits a major life activity shall be made without regard to the
ameliorative effects of mitigating measures;”50 and an “impairment that is
episodic or in remission is a disability if it would substantially limit a
major life activity [when active].” Id. at § 1630.2(j)(1)(ii), (iv), (vi)-(vii).
746 F.3d at 1269 (footnote added).
There can be little question but that depression and PTSD—impairments that
plaintiff was suffering from and being treated for at the time of her termination—are
mental impairments under the ADA. See Pritchard v. Southern Company Services, 92 F.3d
1130, 1132 (11th Cir.) (“Depression has been held to constitute a mental impairment.”),
amended in part on other grounds, 102 F.3d 1118 (11th Cir. 1996), cert. denied, 520 U.S. 1274,
117 S.Ct. 2453, 138 L.Ed.2d 211 (1997); Forbes v. St. Thomas Univ., Inc., 768 F.Supp.2d
1222, 1229 (S.D. Fla. 2010) (PTSD is a mental impairment). The question thus becomes
whether Mileski’s depression and/or PTSD substantially limited a major life activity
when active.
Mileski testified that she has experienced bouts of depression since she was 12 or
13 years of age and, when active, her depression limits her ability to interact and
communicate with others and to care for herself, particularly in light of her numerous
suicide attempts (at least 3) the last of which required hospitalization. Based on this
evidence, the undersigned need agree with plaintiff that a reasonable juror could find
that her depression (which led to a suicide attempt) substantially limited one or more of
her major life activities—specifically, caring for herself, see Peters v. Baldwin Union Free
50

“The determination of whether an impairment substantially limits a major life
activity shall be made without regard to the ameliorative effects of mitigating measures such as .
. . medication[.]” 42 U.S.C. § 12102(4)(E)(i)(I).

34

School District, 320 F.3d 164, 168 (2d Cir. 2003) (“A mental illness that impels one to
suicide can be viewed as a paradigmatic instance of inability to care for oneself.”), and
interacting and communicating with others—and/or that this evidence establishes a
record of a disability. This determination is inherently consistent with the more liberal
standard of the term “disability” created by the 2008 amendments to the ADA, that is, it
serves to underscore the primary purpose of the ADAAA, which was to make it easier
for people with disabilities to obtain protection under the ADA. Cf., e.g., Moore, supra,
979 F.Supp.2d at 1261 (“The court concludes, in light of the stated purpose of the
ADAAA to broaden the coverage of the ADA . . . and especially the definition of the
phrase ‘substantially limits,’ and in consideration of the pervasive regulatory provisions
interpreting the ADAAA, that Congress no longer intends for temporary impairments
to be excluded from the definition of ‘disability.’ Plaintiff’s ankle injury impairment
substantially limited her ability to perform the major life activities of standing, walking,
running, and her general musculoskeletal function. The fact that the limitation was
temporary is irrelevant.”).
b.

As regards the third prong, plaintiff having essentially combined the first

two prongs in arguing that her depression and PTSD are actual disabilities (see Doc. 36,
at 17-18), “[a]n individual meets the requirement of ‘being regarded as having such an
impairment’ if the individual establishes that . . . she has been subjected to an action
prohibited under this chapter because of an actual or perceived . . . mental impairment
whether or not the impairment limits or is perceived to limit a major life activity.” 42
U.S.C. § 12102(3)(A).
“In short, to qualify for coverage under the ‘regarded as’ prong, an
individual is not subject to any functional test’ and is not required to
establish his employer’s “beliefs concerning the severity of the
impairment.” Interpretive Guidance on Title I of the Americans with
Disabilities Act, 29 C.F.R. App. § 1630.2(l). To defeat summary judgment on
35

this element, Plaintiff is “only required to raise a genuine issue of material
fact about whether [his employer] regarded him as having a mental or
physical impairment.” Hilton v. Wright, 673 F.3d 120, 129 (2d Cir. 2012).
Jordan v. City of Union City, Georgia, 94 F.Supp.3d 1328, 1336 (N.D. Ga. 2015); see also
Dulaney v. Miami-Dade County, 481 Fed.Appx. 486, 489 n.3 (11th Cir. Jun. 6, 2012)
(“[B]eing ‘regarded as’ having a disability no longer requires a showing that the
employer perceived the individual to be substantially limited in a major life activity.”).
And while the Court need not expressly determine that the defendant regarded
plaintiff as having a mental impairment, given that a decision has been made that
plaintiff’s mental impairment (depression) substantially limits one or more of her major
life activities when active, brief mention is made of this “disability” prong. Before the
decision to terminate plaintiff was made on July 24, 2013, the primary decision makers
in this case (Cobb and Cain) were cognizant of a number of facts. First, the decision
makers were aware that after plaintiff left work on May 31, 2013, she tried to harm
herself on by taking pills and, as a result, a course of mandatory EAP was charted as a
condition of her job. As part and parcel of mandatory EAP, plaintiff was to undergo a
fitness-for-duty evaluation of her condition.51 Indeed, Cain specifically testified that she
was concerned with whether plaintiff could mentally and physically perform the
essential functions of her job when the referral to EAP was made and her concern
remained on Mileski’s termination date. The Court finds that the foregoing evidence
raises a genuine issue of material fact about whether the defendant regarded Mileski as
having a mental impairment.
51

Cobb and Cain were aware that plaintiff was granted FMLA leave and short-term
disability benefits because of her serious medical condition, that is, depression (and PTSD). That
the decision makers may not have been fully cognizant that plaintiff’s serious medical condition
was depression until July 22, 2013 is of little moment since the decision to terminate Mileski was
not made until July 24, 2013.

36

2.

Qualified Individual. Thomas Hospital makes no argument that Mileski

is not a qualified individual (see Doc. 33, at 9-14); therefore, the Court moves to the third
prong of plaintiff’s prima facie showing inasmuch as “the onus is upon the parties [in
this instance, the defendant] to formulate arguments.” Resolution Trust Corp. v. Dunmar
Corp., 43 F.3d 587, 599 (11th Cir. 1995); see also id. (“There is no burden upon the district
court to distill every potential argument that could be made based upon the materials
before it on summary judgment.”).
3.

Was Mileski Terminated Because of a Disability. The third element of a

prima facie case of an ADA violation that plaintiff must establish is that she was
terminated because of her disability, see Mazzeo, supra, 746 F.3d at 1268, a showing that
must be made by a preponderance of the evidence, see Farley v. Nationwide Mut. Ins. Co.,
197 F.3d 1322, 1334 (11th Cir. 1999).
[T]he ADA’s “because of” causation language is defined as “a factor that
made a difference in the outcome.” In explaining this standard, we explicitly
rejected a reading of the ADA’s “because of” language that would require
plaintiffs to demonstrate that they were discriminated against solely
because of their disability. In so doing, we observed that the statute
“merely imposes a ‘but for’ liability standard.” Therefore, we simply
require that a disability be shown to be a determinative, rather than the
sole, decision-making factor.
Id. (internal citations omitted; emphasis in original); see also McNely v. Ocala Star-Banner
Corp., 99 F.3d 1068, 1077 (11th Cir. 1996) (“’[B]ecause of’ conveys the idea of a factor that
made a difference in the outcome. The ADA imposes a ‘but-for’ liability standard.”).
Thomas Hospital contends that Mileski has presented no evidence that it
terminated her for any reason other than her job abandonment, that is, her act of failing
to show up for her job assignment on May 31, 2013, after clocking in and without
clocking out and leaving without authorized approval. The defendant continues its
argument by noting that “’[t]he law is well settled that the ADA is not violated when an

37

employer discharges an individual based upon the employer’s misconduct, even if the
misconduct is related to a disability.’” Ray v. Kroger Co., 264 F.Supp.2d 1221, 1228 (S.D.
Ga. 2003) (quoting Jones v. American Postal Workers Union, 192 F.3d 417, 429 (4th Cir.
1999)), aff’d, 90 Fed.Appx. 384 (11th Cir. Dec. 17, 2003); see also Sper v. Judson Care Center,
Inc., 29 F.Supp.3d 1102, 1110 (S.D. Ohio 2014) (“So long as the employee’s misconduct is
related to the performance of her job, an employer may discipline or terminate the
employee even if her misconduct was caused by her disability.”); Oliver v. TECO Energy,
Inc., 2013 WL 6836421, *9 (M.D. Fla. Dec. 26, 2013) (same as Ray, supra). The
undersigned cannot agree with defendant’s argument at this stage in the proceedings
and, instead, finds that a reasonable jury could determine that Mileski’s disability was a
determinative factor in her termination.
The defendant contends that it terminated plaintiff solely based on her job
abandonment and while it is clear that “job abandonment” does “pop up” as a
termination code in the defendant’s computer system, that term is nowhere defined—
nor, indeed, does it appear—in the defendant’s handbook/policies as a terminable
offense. And while the defendant (through Cobb) contends that any reasonable person
in plaintiff’s shoes would recognize that what she did on May 31, 2013—clocking in and
seeing her assignment but then leaving hospital premises without the permission of a
supervisor or clocking out—would constitute “job abandonment” and “fall” within one
of the categories of terminable offenses listed in its termination policy—that is,
insubordination, refusal to perform assigned duties, or an action that could result in
imminent or substantial danger to the life, health, or property of employees, patients, or
other customers—this position is questionable not only in light of plaintiff’s testimony
regarding the meaning of “job abandonment” (see Doc. 37, Exhibit A, Mileski depo., at
76 (plaintiff’s testimony that when Cobb and Cain told her she was being terminated for
38

abandoning her job on May 31, 2013, this meant, to her, that she left work without
permission)) but, more importantly, because when the decision was made to refer
plaintiff to mandatory EAP, as opposed to immediately terminating her for job
abandonment, Cobb did not “check” on the referral form any of the terminable offenses
Cobb testified about during her deposition even though they were on the form—as
“Insubordination” and “Disregard for the Safety of Others”—even though she was
instructed to “Check all that apply.” Moreover, by defendant’s own admissions, it made
an “exception” to what it described as its policy of immediately terminating employees
for job abandonment52 by, instead, requiring mandatory EAP and allowing plaintiff to
avail herself of her employee benefits by taking FMLA leave and short-term disability
retroactive to basically 8:00 a.m. (or 7:44 a.m.) on May 31, 2013. By these actions, the
defendant “cloaked” plaintiff with the protections of the Family Medical Leave Act for
all but one hour on that crucial day of May 31, 2013 and, therefore, effectively was “left”
with what to do about the remaining hour for which she was paid, that is, the hour
during which she clocked in but then left without permission. And while defendant
insists that this case has nothing to do with its time and attendance policy (see Doc. 43,
at 8), the undersigned cannot agree inasmuch as this case is “all about” the one-hour
period of time on May 31, 2013 “reserved” by the defendant based upon Mileski leaving
the hospital without clocking out and without authorized approval, an admitted
“occurrence” under the defendant’s attendance policy. And while this evidence could
rise to the simple inference that the defendant improperly terminated plaintiff for an
“occurrence” under its attendance policy, there is more here because Cobb’s
52

Because the defendant made an exception in this regard, its citation to all the
“other” cases of job abandonment simply offers no help to the Court. In other words, none of
those other instances offer proper comparisons because of the exception made by the defendant.

39

handwritten meeting notes for July 24, 2013—the date Mileski was terminated—capture
specific “job abandonment” comments made by Cain. It is fair to say that these
comments are couched in terms of “mental” job abandonment as regards direct patient
care, something that decidedly did not happen on May 31, 2013. Therefore, the only
way to view these comments, on summary judgment, is through the forward-looking
eyes of Cain and her expressed concern over plaintiff mentally abandoning that part of
her job related to direct patient care in the future by missing “a critical order or comm.
to RN or physician—failed to note critical observation or initials in chart.” (Doc. 37,
Exhibit 8 to Cain depo.) In consideration of all of the foregoing, therefore, the Court
finds questionable whether plaintiff was indeed terminated solely for conduct—job
abandonment—that is nowhere specifically defined or listed in the defendant’s
termination policy, as opposed to being terminated because of her disability,
particularly in light of Cain’s forward-looking comments captured in Cobb’s
handwritten notes of July 24, 2013, which reflect Cain’s concern/fear that Mileski’s
mental condition could well cause a mental abandonment in the future—if she was
allowed to return to her job—in regard to patient care vis-à-vis missing “a critical order
or comm. to RN or physician—failed to note critical observation or initials in chart.”
Stated differently, the undersigned finds that plaintiff has created an issue of fact on
whether Thomas Hospital terminated her because of a disability sufficient to satisfy the
third element of her prima facie case for purposes of summary judgment.
4.

Has Thomas Hospital Presented a Legitimate, Non-Discriminatory

Reason for Plaintiff’s Termination? After a plaintiff establishes a prima facie case of
disability discrimination, the burden shifts to the defendant to present “a legitimate,
nondiscriminatory reason for its actions[.]” Ward, supra, 580 Fed.Appx. at 740.

40

To satisfy the burden of production, “[t]he 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 discriminated against the plaintiff.” Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). “[T]o
satisfy this intermediate burden, the 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.” Id. at 257, 101 S.Ct. 1089. “This intermediate
burden is ‘exceedingly light.’” Holifield v. Reno, 115 F.3d 1555, 1564 (11th
Cir. 1997) (quoting Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1061 (11th
Cir. 1994)).
Lloyd v. Housing Authority of the City of Montgomery, Alabama, 857 F.Supp.2d 1252, 12651266 (M.D. Ala. 2012). Because plaintiff concedes that the defendant has satisfied this
exceedingly light burden of production (see Doc. 36, at 22-28), the Court simply focuses
its attention on whether Mileski has established that the defendant’s proffered reason
for her termination—job abandonment—is mere pretext for unlawful disability
discrimination.
5.

Was Mileski’s Termination a Pretext for Disability Discrimination? In

order to establish pretext, a plaintiff must establish that her “’employer’s explanation is
unworthy of credence.’” Lloyd, supra, 857 F.Supp.2d at 1266, quoting Jackson v. Alabama
State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005) (other citation omitted).53
This requires showing “both that the reason was false, and that
discrimination was the real reason” for the adverse action. St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 512 n.4, 113 S.Ct. 2742, 125 L.Ed.2d 407
(1993). A plaintiff may show pretext by pointing to “weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions” in the
employer’s proffered reason. Brooks v. Cnty. Comm’n of Jefferson Cnty., 446
F.3d 1160, 1163 (11th Cir. 2006), or by producing other evidence “which
permits the jury to reasonably disbelieve the employer’s proffered
53

The Eleventh Circuit has “repeatedly and emphatically held that a defendant may
terminate an employee for a good or bad reason without violating federal law[,]” because courts
“are not in the business of adjudging whether employment decisions are prudent or fair.” Damon
v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1361 (11th Cir. 1999), cert. denied, 529 U.S.
1109, 120 S.Ct. 1962, 146 L.Ed.2d 793 (2000).

41

reason.” Steger v. Gen. Elec. Co., 318 F.3d 1066, 1079 (11th Cir. 2003). “Any
believable evidence which demonstrates a genuine issue of material fact
regarding the truth of the employer’s explanation may sustain the
employee’s burden of proof.” Steger, 318 F.3d at 1079.
Lloyd, supra, 857 F.Supp.2d at 1266; see also Alvarez v. Royal Atlantic Developers, Inc., 610
F.3d 1253, 1265-1266, 1266 & 1267 (11th Cir. 2010) (“To show pretext, [plaintiff] must
demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could find them unworthy of credence. A plaintiff is not allowed
to recast an employer’s proffered nondiscriminatory reasons or substitute [her] business
judgment for that of the employer. Provided that the proffered reason is one that might
motivate a reasonable employer, an employee must meet that reason head on and rebut
it, and [she] cannot succeed by simply quarreling with the wisdom of that reason. . . .
We do not sit as a super-personnel department, and it is not our role to second-guess
the wisdom of an employer’s business decisions—indeed the wisdom of them is
irrelevant—as long as those decisions were not made with a discriminatory motive. . . .
[Plaintiff’s] burden is to show not just that [defendant’s] proffered reasons for firing her
were ill-founded but that unlawful discrimination was the true reason.” (internal
citations and quotation marks omitted)). Moreover, “[t]he inquiry into pretext centers
on the employer’s beliefs, not the employee’s beliefs and, to be blunt about it, not on
reality as it exists outside of the decision maker’s head.” Id. at 1266, citing Holifield v.
Reno, 115 F.3d 1555, 1565 (11th Cir. 1997).
The Court finds that plaintiff has met her burden in this regard. In particular, as
referenced above, Thomas Hospital’s termination policy nowhere defines “job
abandonment” and certainly does not list it as a terminable offense. Moreover, this
Court cannot expect Mileski to have known that “job abandonment” is effectively

42

insubordination, refusal to perform assigned duties, or an action that could result in
imminent or substantial danger to the life, health, or property of employees, patients, or
other customers (admittedly terminable offenses under the defendant’s written
termination policy) since its own Human Resources director did not recognize this
“affinity” when she completed the mandatory EAP referral form. In addition, because
of the defendant’s approach to this case, at issue here is but one hour of time on May 31,
2013 during which plaintiff clocked in but did not clock out and left the hospital
without authorized approval, an admitted “occurrence” under the defendant’s written
time and attendance policy. Finally, but most importantly, Cain’s July 24, 2013 “job
abandonment” comments were forward-looking and implicate the Director of
Nursing’s concerns about whether plaintiff’s mental condition posed a risk to patients
in the future and whether she would mentally abandon her job in the future, as
opposed to being related to the events of May 31, 2013. All of the foregoing, in the
undersigned’s opinion, creates an issue of fact as to whether the defendant’s articulated
reason for terminating plaintiff—job abandonment—was untrue. Stated somewhat
differently, based on the foregoing evidence, the undersigned finds that a factfinder
could disbelieve the stated reason—job abandonment—for termination and conclude
that disability discrimination was the true reason for the defendant’s decision to
terminate plaintiff.
C.

FMLA Claims. As recognized by the parties in this case, “[u]nder the

FMLA, an eligible employee is entitled to take up to twelve weeks of leave for a serious
health condition that makes the employee unable to perform the functions of her job[,]”
Caldwell v. Clayton County School District, 604 Fed.Appx. 855, 860 (11th Cir. Mar. 23, 2015),
citing 29 U.S.C. § 2612(a)(1), and, as well, enjoys the right “following leave ‘to be restored
by the employer to the position of employment held by the employee when the leave
43

commenced’ or to an equivalent position,” Strickland v. Water Works & Sewer Bd. of the
City of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001), quoting 29 U.S.C. § 2614(a)(1).
Employers are prohibited by the FMLA from “interfering with, restraining, or denying
‘the exercise of or the attempt to exercise’ any rights guaranteed under the Act[,]”
Caldwell, supra, 604 Fed.Appx. at 860, citing 29 U.S.C. § 2615(a)(1), and from
discriminating against an employee because she engaged in activity protected by the
Act, Strickland, supra, 239 F.3d at 1206, citing 29 U.S.C. § 2615(a)(1) & (2); see 29 C.F.R. §
825.220(a)(1), (b) & (c) (2013) (“The FMLA prohibits interference with an employee’s
rights under the law[.] . . . An employer is prohibited from interfering with, restraining,
or denying the exercise of (or attempts to exercise) any rights provided by the Act. . . .
Interfering with the exercise of an employee’s rights would include, for example, not
only refusing to authorize FMLA leave, but discouraging an employee from using such
leave. . . . [E]mployers cannot use the taking of FMLA leave as a negative factor in
employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA
leave be counted under no fault attendance policies.”).
Based upon the foregoing, the Eleventh Circuit has recognized two types of
FMLA claims: interference claims and retaliation claims. Caldwell, supra (citation
omitted); see also Pereda v. Brookdale Senior Living Communities, Inc., 666 F.3d 1269, 1272
(11th Cir. 2012) (“Under section 2615(a) of the FMLA, an employee may bring 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, and retaliation claims, in
which an employee asserts that his employer discriminated against him because he
engaged in an activity protected by the Act.” (citation omitted)); Strickland, supra, 239
F.3d at 1206 (“[T]he FMLA creates two types of claims: interference claims, in which an
employee asserts that his employer denied or otherwise interfered with his substantive
44

rights under the Act, and retaliation claims, in which an employee asserts that his
employer discriminated against him because he engaged in activity protected by the
Act[.]” (internal citations omitted)).
1.

Interference Claims. The Eleventh Circuit has clearly established that in

order to prove FMLA interference, Mileski “must demonstrate ‘that [she] was denied a
benefit to which [she] was entitled under the FMLA,’ Martin v. Brevard Cnty. Pub. Sch.,
543 F.3d 1261, 1266-67 (11th Cir. 2008), and that she ‘has been prejudiced by the violation
in some way.’ Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89, 122 S.Ct. 1155, 152
L.Ed.2d 167 (2002)[.]” Evans v. Books-A-Million, 762 F.3d 1288, 1295 (11th Cir. 2014); see
Roberts v. Health Ass’n, 308 Fed.Appx. 568, 569 (2nd Cir. Feb. 3, 2009) (“To bring a
successful action under the FMLA, an employee must show (1) that the employer
interfered with, restrained, or denied the rights protected by the FMLA, and (2) that the
employee has been prejudiced by the violation.”); Bradley v. Army Fleet Support, LLC, 54
F.Supp.3d 1272, 1279 (M.D. Ala. 2014) (“The Supreme Court has explained that to prevail
on a cause of action under the FMLA, the employee must prove interference, but is not
entitled to relief unless the employee has been prejudiced by the violation[.]”). “’A
[p]laintiff claiming interference must demonstrate by a preponderance of the evidence
that she was denied a benefit to which she was entitled[,]’” Pereda, supra, 666 F.3d at
1274, quoting Harley v. Health Ctr. of Coconut Creek, 487 F.Supp.2d 1344, 1357 (S.D. Fla.
2006); however, “[t]he employee does not have to prove ‘that [her] employer intended to
deny the benefit, because “the employer’s motives are irrelevant.”’” Lamar v. Pilgrim’s
Pride Corp. 2015 WL 5440342, *7 (11th Cir. Oct. 15, 2015), quoting Krutzig v. Pulte Home
Corp., 602 F.3d 1231, 1235 (11th Cir. 2010), in turn quoting Strickland, supra, 239 F.3d at
1208; see also Martin v. Brevard County Public Schools, 543 F.3d 1261, 1266-1267 (11th Cir.
2008) (“To prove FMLA interference, an employee must demonstrate that he was denied
45

a benefit to which he was entitled under the FMLA. An employee need not allege that
his employer intended to deny the right; the employer’s motives are irrelevant.”
(internal citations and quotation marks omitted)). In order to prove prejudice as a result
of an FMLA violation, a plaintiff need “demonstrate some harm remediable by either
‘damages’ or ‘equitable relief.’” Evans, supra, 762 F.3d at 1296, citing Ragsdale, supra, 535
U.S. at 89, 122 S.Ct. at 1161 (other citation omitted); see Hill v. City of New York, 2015 WL
5719656, *19 (E.D.N.Y. Sept. 28, 2015) (“A plaintiff must show that ‘she suffered some
injury by reason of the interference with her FMLA rights.’” (citations omitted))
There can be little question but that “[a]n employee has the right following FMLA
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.” Martin, supra, 543
F.3d at 1267 (citations omitted). This reinstatement right, however, is not absolute;
“rather, ‘an employer can deny reinstatement if it can demonstrate that it would have
discharged the employee had [s]he not been on FMLA leave.’” Schaaf v. Smithkline
Beecham Corp., 602 F.3d 1236, 1241 (11th Cir. 2010), quoting Martin, supra, at 1267. In
other words, “if an employee is not reinstated, the employer bears the burden of proving
that the employee was discharged for independent reasons that were unrelated to the
employee’s leave.” Id., citing Parris v. Miami Herald Publishing Co., 216 F.3d 1298, 1301 n.1
(11th Cir. 2000); see also Strickland, supra, 239 F.3d at 1208 (“In other words, if an
employer can show that it refused to reinstate the employee for a reason wholly
unrelated to the FMLA leave, the employer is not liable.”). “Where an employer offers
evidence that it denied an employee reinstatement for a reason unrelated to the
employee’s FMLA leave, and the employee does not offer any evidence to the contrary,
summary judgment is due to be granted in favor of the employer on the employee’s

46

interference claim.” Petty v. United Plating, Inc., 2012 WL 2047532, *16 (N.D. Ala. May 31,
2012), citing Schaaf, supra, 602 F.3d at 1241.
In this case, plaintiff only asserted a retaliation claim in her complaint (see Doc. 1,
at ¶¶ 56-57 (“[T]he Defendant discriminated/retaliated against the Plaintiff for asserting
her federally protected rights under the FMLA by subjecting her to disparate treatment,
unwarranted discipline and termination as a direct result of her use of her FMLA leave.
[] The defendant intentionally, maliciously, and with reckless indifference discriminated
against her in the terms, conditions, [and] benefits of her employment because of her
rights under the FMLA.”)), but now alleges both interference claims and a retaliation
claim in her brief in opposition to the defendant’s motion for summary judgment (see
Doc. 36, at 27-30). It is clear to the Court that plaintiff could have and should have raised
in her complaint her interference claim that the defendant’s terminated her for an
absence from work which was approved as protected FMLA leave (see Doc. 36, at 28;
compare id. with Doc. 1), and that the plaintiff could have established good cause to
amend her complaint to add her other interference claim after the time for amendments
set forth in the scheduling order (see Doc. 13, at ¶ 5 (“Motions for leave to amend the
pleadings . . . must be filed not later than May 1, 2015.”))—prematurely denying her
FMLA benefits to which she was entitled (see Doc. 36, at 28)—since she was not aware of
the facts supporting such claim until after Pam Bailey’s deposition on July 22, 2015 (see
Doc. 31, Exhibit 5, at 1 (Pam Bailey’s deposition taken on July 22, 2015)). Instead of
adding her first interference claim by amendment before May 1, 2015, or seeking to add
her “premature” interference claim for good cause after Bailey’s deposition on July 22,
2015, she waited to raise these claims in her response in opposition to the defendant’s
motion to summary judgment. (See Doc. 36, at 27-28.) This was not the proper course to
follow and, therefore, the Court GRANTS summary judgment in favor of Thomas
47

Hospital on both of plaintiff’s interference claims, raised for the first time in her
opposition to the defendant’s motion for summary judgment.54 Compare Manley v. DeKalb
County, Georgia, 587 Fed.Appx. 507, 511 (11th Cir. Sept. 3, 2014) (“We have held that a
plaintiff may not add new claims to her complaint through an argument in a brief
opposing a motion for summary judgment. The proper avenue for adding a new claim at
the summary judgment stage is to ask the district court for leave to amend pursuant to
Rule 15(a).”) with Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004)
(“A plaintiff may not amend her complaint through argument in a brief opposing
summary judgment. . . . Liberal pleading does not require that, at the summary
judgment stage, defendants must infer all possible claims that could arise out of facts set
forth in the complaint.”).55
54

To the extent plaintiff intends to suggest that her use of the words discrimination
and/or discrimination in Count II of the complaint should be liberally read as her attempt to
raise an interference claim (see Doc. 36, at 27-28), the Court finds any such implicit argument
unavailing since the Eleventh Circuit consistently describes interference claims as those “in
which an employee asserts that his employer denied or otherwise interfered with his substantive
rights under the Act,” whereas retaliation claims are described as those “in which an employee
asserts that his employer discriminated against him because he engaged in activity protected by
the Act[.]” Strickland, supra, 239 F.3d at 1206 (emphasis supplied). A defendant is entitled to
notice of what it must defend against and nothing about plaintiff’s complaint gave notice that
she was asserting an FMLA interference claim against Thomas Hospital.
55

Moreover, with respect to plaintiff’s interference claim that the defendant
prematurely ended her FMLA leave on or about July 10, 2013 without any explanation for its
actions (see Doc. 36, at 28), this occurring because of a miscalculation of plaintiff’s FMLA hours
by Pam Bailey, the Court discerns no prejudice or injury to plaintiff since she remained on shortterm disability (thereby receiving her pay and benefits) and her job was not posted or replaced
during the period of her FMLA and STD leave. Compare, e.g., Roberts, supra, 308 Fed.Appx. at 570
(“[I]t is undisputed that HA paid Roberts for twelve weeks’ worth of benefits, which is all she
would have been entitled to had HA respected her right to FMLA leave. Although Roberts can
likely show that HA interfered with her FMLA rights, because there is no evidence that the
violation was prejudicial, the District Court did not err in dismissing her claim.”) with Evans,
supra, 762 F.3d at 1295 (recognition by the Eleventh Circuit that to prove FMLA interference, a
plaintiff must demonstrate not only that she was denied a benefit to which she was entitled but
also that she was prejudiced by the violation in some way) and Hill, supra, at *19 (“A plaintiff
must show that ‘she suffered some injury by reason of the interference with her FMLA rights.’”
(citations omitted)).

48

2.

FMLA Retaliation. “To prove a retaliation claim under the FMLA, the

plaintiff must show that her employer intentionally discriminated against her for having
exercised an FMLA right.” Caldwell, supra, 604 Fed.Appx. at 860, citing Martin, supra, 543
F.3d at 1267; see also id. (“In other words, the plaintiff must show that her ‘employer’s
actions were motivated by an impermissible retaliatory or discriminatory animus.’”
(citations omitted)).
Where, as here, the plaintiff presents no direct evidence of retaliatory
intent, [this Court] analyze[s] the circumstantial evidence presented under
the burden-shifting framework of McDonnell Douglas. Under that
approach, the plaintiff must first establish a prima facie case of retaliation.
This requires a showing that (1) she engaged in activity protected by the
FMLA, (2) she suffered an adverse employment decision, and (3) the
adverse decision was causally related to the protected activity. . . . If the
plaintiff establishes a prima facie case of retaliation, the employer must
articulate a legitimate, non-discriminatory reason for the adverse
employment action. Once the employer makes this proffer, the plaintiff
must demonstrate that the employer’s reason was actually a pretext for
discrimination.56 Evidence used to establish a prima facie case may also be
used to establish pretext.
Id. (internal citations; footnote omitted; footnote added); see also Martin, supra, 543 F.3d
at 1268 (same); Hurlbert, supra, 439 F.3d at 1297 (same); Bradley v. Army Fleet Support,
LLC, 54 F.Supp.3d 1272, 1279 (M.D. Ala. 2014) (same); Sparks v. Sunshine Mills, Inc., 2013
WL 4760964, *14 (N.D. Ala. Sept. 4, 2013) (same), aff’d, 580 Fed.Appx. 759 (11th Cir. Sept.
12, 2014).
In this case, it is undisputed that Mileski engaged in protected activity and
suffered an adverse employment decision in the form of termination. (See Doc. 33, at 24
(“The first and second elements of the prima facie case are not disputed.”).) Therefore,
56

“’[T]he employee must then show that the employer’s proffered reason was
pretextual by presenting evidence “sufficient to permit a reasonable factfinder to conclude that
the reasons given by the employer were not the real reasons for the adverse employment
decision.”’” Lamar, supra, at *10, quoting Martin, supra, 543 F.3d at 1268, in turn quoting Hurlbert
v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir. 2006).

49

the only prima facie element at issue in this matter is causal connection. The Eleventh
Circuit has held that “to demonstrate a causal connection a plaintiff needs to
demonstrate only that the protected activity and adverse action were not completely
unrelated.” Caldwell, supra, 604 Fed.Appx. at 860, citing Hogdon v. Jackson, 393 F.3d 1211,
1220 (11th Cir. 2004).
To do that, “the plaintiff must generally show that the decision maker was
aware of the protected conduct at the time of the adverse employment
action.” Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir.
2000). Close temporal proximity between the protected conduct and the
adverse action generally is sufficient to establish a causal connection.
However, temporal proximity alone is insufficient when unrebutted
evidence indicates that the decision maker did not know about the
employee’s protected conduct when the adverse action occurred.
Id. (some internal citations omitted); Strickland, supra, 239 F.3d at 1207-1208 (“[Proximity
in time] evidence cannot satisfy the third element in a case, like the one here, in which
the ‘unrebutted evidence [is] that the decision maker did not have knowledge that the
employee [had engaged, or was attempting to engage,] in protected activity.’ As we
said in Brungart, ‘[a] decision maker cannot have been motivated to retaliate by
something unknown to him.’” (internal citations omitted)); cf. Gilliard v. Georgia Dep’t of
Corrections, 500 Fed.Appx. 860, 864 (11th Cir. Dec. 7, 2012) (“The causation element may
be shown by the temporal proximity of the complaints to the adverse employment
action, ‘[b]ut mere temporal proximity, without more, must be “very close.”’”).
Here, plaintiff was approved for FMLA leave for all but one hour on May 31,
2013, and the decision makers were aware of her FMLA leave prior to the termination
decision on July 24, 2013. Indeed, but for Bailey’s miscalculation of the hours of FMLA
leave available to plaintiff, Mileski would have been covered by the FMLA on the date
of her termination. Given this temporal proximity, the Court finds that, at the very least,

50

plaintiff has created a genuine issue of material fact regarding the third element (causal
connection) of her prima facie case.
There can be little question but that the defendant has satisfied its very light
burden of proffering a legitimate, non-discriminatory reason for its termination of
plaintiff, namely that plaintiff did not report to her assigned duties and, instead, left the
hospital without clocking out and without authorized approval on May 31, 2013, which
it insists constitutes job abandonment. Accordingly, the Court turns to the pivotal issue
of whether the defendant’s proffered reason is mere pretext for unlawful FMLA
termination.
“Pretext means that the reason given by the employer was not the real reason for
the adverse employment decision.” Gilliard, supra, 500 Fed.Appx. at 864-865 (citation
omitted).
A reason cannot be proved to be a pretext for discrimination unless it is
shown both that the reason was false, and that discrimination was the real
reason. In this respect, conclusory allegations or unsupported assertions of
discrimination, without more, do not raise an inference of pretext where
an employer has offered extensive evidence of legitimate,
nondiscriminatory reasons for its actions. Instead, the plaintiff must meet
the proffered reason head on and rebut it, and the employee cannot
succeed by simply quarreling with the wisdom of that reason. A plaintiff
will withstand summary judgment by demonstrating such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable
factfinder could find them unworthy of credence.
Id. at 865 (internal citations, quotation marks, brackets, and emphasis omitted); see also
Lamar, supra, at *12 (“In evaluating an employee’s proof of pretext, the Supreme Court
has instructed that ‘[i]t is not enough . . . to disbelieve the employer; the factfinder must
believe the plaintiff’s explanation of intentional discrimination.’ Nevertheless,
disproving an employer’s explanation may give rise to a permissible inference that the
employer intentionally retaliated against an employee because dishonesty about a

51

material fact may be ‘affirmative evidence of guilt’ or render retaliation the most likely
alternative explanation for the employer’s action. On the other hand, an employer
would be entitled to summary judgment ‘if the plaintiff created only a weak issue of
fact as to whether the employer’s was untrue and there was abundant and
uncontroverted evidence that no discrimination had occurred.’ . . . Preliminarily, the
Court notes that while close temporal proximity ‘is generally “sufficient circumstantial
evidence to create a genuine issue of material fact of a causal connection,”’ it is
‘probably insufficient to establish pretext by itself.’”(internal citations omitted)); see
Hurlbert, supra, 439 F.3d at 1298 (indicating that close temporal proximity between
employee’s request for leave and his termination—that is, no more than 2 weeks—was
evidence of pretext, “though probably insufficient to establish pretext by itself.”). The
Eleventh Circuit has recognized that “an employer’s failure to articulate clearly and
consistently the reason for an employee’s discharge may serve as evidence of pretext[,]”
Hurlbert, supra, 439 F.3d at 1298 (citations omitted), as can “an employer’s deviation
from its own standard procedures[.]” Id. at 1299 (citations omitted).
As previously indicated in the ADA portion of this opinion, this case is “all
about” the first hour of May 31, 2013, as the defendant effectively “reserved” the first
hour of this day for purposes of making its employment decision, the day plaintiff left
the hospital after clocking in but not clocking out and without authorized approval. In
other words, by its actions, the defendant has made this case a “time” case and when
properly viewed, the defendant’s reliance on “job abandonment” becomes untenable,
on summary judgment, not only because that phrase is nowhere specifically defined or
listed in its own written termination policy as a terminable offense but, as well, because
of the defendant’s admission that plaintiff’s actions during the first hour of May 31,
2013—that is, leaving work early without authorized approval—was an occurrence
52

under its written attendance policy. This Court has previously found evidence of
“pretext” with respect to plaintiff’s ADA claim and there can be no question but that
Mileski’s disability (that is, depression) caused the need for her FMLA leave. Therefore,
in light of the aforesaid temporal proximity between plaintiff’s FMLA leave and her
termination this Court need conclude, on summary judgment, a permissible inference
arises—given that the employer’s explanation cannot be believed—that the defendant
intentionally retaliated against plaintiff.
CONCLUSION
For the reasons set forth above, defendant’s motion for summary judgment (Doc.
30) is GRANTED IN PART and DENIED IN PART.
DONE and ORDERED this 31st day of March, 2016.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

53