Williamson v. Ball Healthcare Services, Inc.
MEMORANDUM OPINION & ORDER, Plf's 62 Motion for Partial Summary Judgment & 69 Motion to Strike are DENIED as set out. Signed by Senior Judge Callie V. S. Granade on 8/11/2016. (tot)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
) CIVIL ACTION NO. 14-0552-CG-C
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff’s motion for partial summary
judgment (Doc. 62), Defendant’s opposition thereto (Doc. 68), Plaintiff’s reply (Doc.
71), Plaintiff’s motion to strike (Doc. 69), and Defendant’s response to the motion to
strike (Doc. 73). For reasons that will be explained below, the Court finds that
Plaintiff’s motion to strike and motion for summary judgment both are due to be
This case arises from Plaintiff’s termination from the Defendant Company,
Ball Healthcare Services, Inc., on September 3, 2013. (Doc. 1, ¶ 9). The Complaint
alleges that Plaintiff was diagnosed with Rheumatoid Arthritis in May 2013 and
that she is a qualified individual under the Americans with Disabilities Act, Title 42
U.S.C. § 12101 et seq., (“ADA”). Plaintiff claims the Defendant discriminated
against her on the basis of her disability in violation of the ADA. She seeks lost
wages, lost benefits, punitive and/or nominal damages, attorney’s fees and costs, an
injunction and a declaratory judgment. (Doc. 1). In its Amended Answer (Doc. 42),
Defendant raises the affirmative defense of after-acquired evidence, asserting that
it discovered evidence on August 12, 2015, that Plaintiff intentionally provided
misleading, incomplete and false information as part of the application process for
employment with the Defendant Company. Defendant asserts that if it had
discovered the evidence before hiring Plaintiff, it would have refused to hire
Plaintiff and, if discovered after she was hired, it would have terminated her
employment. As such, Defendant contends that Plaintiff is barred from obtaining
injunctive relief, reinstatement to her employment with Defendant Company, the
recovery of front pay or employment benefits and compensatory damages after
August 14, 2015, the date that Administrator Mary Kay Polys received and
reviewed the evidence and made the decision that Defendant Company would not
have hired or would have terminated Plaintiff’s employment immediately if it had
Plaintiff was previously employed at an assisted living facility called The
Blake at Malbis, LLC (“The Blake”) as the Director of Wellness beginning on or
about July 5, 2010. (Doc. 64-4, p. 2; Doc. 68-3, ¶ 2). Plaintiff contends that she
worked under a verbal agreement with the owner that she would work for one year
at which time they would readdress issues of salary and whether she would remain
employed there. (Doc. 64-2, pp. 3-4). However, the COO and co-owner of The Blake,
Glenn Barclay, avers that Plaintiff was an at-will employee and that they had no
written or verbal employment contract with Plaintiff. (Doc. 68-3, ¶ 2).
On September 20, 2010, the Alabama Department of Public Health (“ADPH”)
conducted a pre-license survey of The Blake and based on the initial survey the
ADPH denied The Blake a license to operate. (Doc. 68-3, ¶ 3). The Blake
subsequently corrected the alleged deficiencies and obtained a license as a specialty
care assisted living facility with Plaintiff as the Director of Wellness. (Doc. 68-3, ¶
3). The ADPH pre-license survey cited a number of alleged deficiencies, including
some directly related to Plaintiff’s performance of her job duties as the Director of
Wellness. (Doc. 68-3, ¶ 4). The ADPH initiated a complaint against Plaintiff’s
nursing license with the Alabama Board of Nursing based on the survey findings
and the Alabama Board of Nursing notified Plaintiff and The Blake of the
investigation. ((Doc. 64-3, p. 19; Doc. 68-3, ¶ 4).
On May 19, 2011, the ADPH conducted a second survey of The Blake. (Doc.
68-3, ¶ 5). Again, deficiencies were cited relating to Plaintiff’s area of responsibility,
including the failure to perform comprehensive assessments on residents with
significant health status changes. (Doc. 68-3, ¶ 5). Again, Plaintiff and The Blake
were notified of a complaint and investigation against Plaintiff’s nursing license.
(Doc. 64-3, p. 20; Doc. 68-3, ¶ 5). To avoid the possibility of losing its license, The
Blake entered into a Consent Agreement with the ADPH, dated June 24, 2011,
under which The Blake relinquished the management and operation of the facilities
to ClearPoint Solutions, LLC. (Doc. 68-3, ¶6). Under the Management Agreement,
ClearPoint Solutions assumed full authority and control in the operations of The
Blake facilities, including hiring and terminating staff. (Doc. 68-3, ¶ 6).
Shortly before June 20, 2011, Mr. Barclay advised Plaintiff that it would no
longer be responsible for the management of the facilities and that her employment
would terminate as a result. (Doc. 68-3, ¶ 8). Plaintiff gave Mr. Barclay a memo
stating that she had been a valued employee, she “may never find another job as
Director of Wellness again due to the investigations” and that she would “submit a
resignation letter with the guarantee of three months’ severance pay, PTO (Paid
time off, and the attorney to continue to represent [her] at no cost in matters
arriving [sic] before the Alabama Board of Nursing that have arisen or may arise
during [her] employment at The Blake at Malbis.” (Doc. 64-3, p. 21; Doc. 68-3, ¶ 8).
Plaintiff reportedly also told Mr. Barclay that a voluntary resignation would assist
her in seeking alternate employment. (Doc. 68-3, ¶ 9). The Blake agreed to
Plaintiff’s proposal and Mr. Barclay signed a copy of Plaintiff’s memo. (Doc. 68-3, ¶
9). That same day, June 20, 2011, Plaintiff provided The Blake with her written
resignation. (Doc. 68-3, ¶ 9). Plaintiff’s personnel forms indicate that she was
eligible for re-hire “with COO approval” and Mr. Barclay confirms that if Plaintiff
had applied for re-hire, he would make the determination at that time whether to
approve her re-hire. (Doc. 68-3, ¶ 10). The Alabama Board of Nursing notified
Plaintiff that she was required to notify them of any nursing employment,
application for nursing employment or acceptance of nursing employment but the
Alabama Board of Nursing did not expressly instruct her to provide notice of the
pending investigations to potential employers. (Doc. 64-1, pp. 61-62; Doc. 64-2, pp.
Plaintiff accepted the position of Assistant Director of Nursing at the
Defendant’s Robertsdale facility on November 2, 2011. (Doc. 64-1, p. 92; Doc. 64-3,
pp. 11-12). At the time Plaintiff was hired, Sharon Prince-Moore was the
Defendant’s Vice President of Special Services, Mary Kay Polys was the Defendant’s
Administrator, and Sandy Daigle was the Defendant’s Director of Nursing at the
Robertsdale Healthcare Center. (Doc. 64-1, pp. 4-5; Doc. 64-4 p. 3; Doc. 64-5, pp. 34). Moore was provided Plaintiff’s resume via a staffing company and Plaintiff was
selected and interviewed by Moore. (Doc. 64-4, pp. 5-6). Moore testified that she
always asks about a candidate’s regulatory history because they want to know if the
candidate’s lack of structure or administrative capabilities created issues or did
they “just happen.” (Doc. 64-4, pp. 11-12). Plaintiff answered that it was common
knowledge that The Blake had regulatory issues and stated that she had inherited
some or there were “challenges” when she arrived at the facility. (Doc. 64-4, p. 12).
The Plaintiff shared some things that she felt she had done to improve upon those
challenges. (Doc. 64-4, p. 12). Plaintiff told Moore that there had been a difficult
survey during her time there, but that everything was clear at this point or had
cleared before she left and ended her contract. (Doc. 64-4, p. 12). Plaintiff then had
a clinical interview, after which Moore followed up with the staffing company to
notify them of their requirements and referred Plaintiff to the Robertsdale
Administrator, Mary Kay Polys for an interview. (Doc. 64-4, pp. 7-9; Doc. 64-1, pp.
35-36). Moore informed Polys of Plaintiff’s prior employment with The Blake and
relayed what Plaintiff had told her about the regulatory issues at The Blake. (Doc.
64-4, pp. 10-11).
Plaintiff had a lunch interview with Polys and Moore during which Plaintiff’s
employment history was discussed, with the majority of the discussion focusing on
the issues Plaintiff encountered while working at The Blake. (Doc. 64-4, pp. 15-17).
Plaintiff was asked about why she left The Blake and she shared that The Blake
had been a challenge and that it was not long-term care and she wanted to get back
into long-term care. (Doc. 64-4, pp. 16-17). They talked about assessments and
Plaintiff told them essentially what she had already told Moore at their prior
meeting. (Doc. 64-4, p. 17). Moore and Polys did not ask Plaintiff about her
licensure status, because that information is on their application and they check
online with the Alabama Board of Nursing registry. (Doc. 64-4, p. 18; Doc. 64-1, p.
10-11). The website does not show pending matters, only final determinations.
(Doc. 64-1, p. 54). At the time of her hire, Plaintiff’s nursing license was in good
standing and had not been disciplined. (Doc. 64-1, pp. 53, 100). A third-partyfacilitated background check was provided to Moore and Polys and contained no
information that resulted in a rescinding of the job offer (Doc. 64-1 pp. 46-48, 93101; Doc. 64-4, p. 22). Polys made the final decision to hire Plaintiff as the
Assistant Director of Nursing. (Doc. 68-4, ¶ 2).
Plaintiff began her employment with Defendant on November 14, 2011. (Doc.
64-1, pp. 49-50). Plaintiff told the Defendant’s Director of Nursing, Sandy Daigle,
that she was afraid she would lose her license working at The Blake and that she
did not think it was run correctly. (Doc. 64-5, pp. 5-6). Plaintiff did not tell Daigle of
any pending litigation going on with The Blake or Plaintiff. (Doc. 64-5, p. 6).
Plaintiff did not actually complete her Application for Employment with the
Defendant until November 14, 2011, after she began work there. (Doc. 64-1, pp. 31,
43-44, 87-90). If something had come to light as a result of the application being
inaccurate, incomplete or misleading, Defendant had the ability to rescind the offer
of employment. (Doc. 64-1, p. 44). Plaintiff’s Application listed her reason for
leaving The Blake as “End of Contract.” (Doc. 64-1, p. 88). The Application signed
by Plaintiff includes the following promise:
I promise that the information I gave in this employment application is
true and complete. I understand that the Company, may refuse to hire
me, or if I am hired, may discharge me if I gave false, misleading or
incomplete information in this application.
(Doc. 64-1, p. 90). The Application does not request information regarding the
applicant’s licensure status or any pending investigations related thereto. (Doc. 641, pp. 87-90).
Plaintiff also signed an Acknowledgment, dated November 14, 2011,
confirming that she had read, understood and agreed to comply with the contents of
the Employee Handbook for the Defendant Company. (Doc. 68-4, ¶ 5 & p. 11). The
employment policies in the Employee Handbook include a disciplinary rule
subjecting an employee to disciplinary action “including discharge” for “Dishonesty.”
(Doc. 68-4, ¶ 5 & pp. 8-9). The Handbook expressly defines “Dishonesty” to include
“providing false information for any employment related purpose.” (Doc. 68-4, ¶ 5 &
p. 10). Polys regards the information Plaintiff provided in the Employment
Application and during her employment interview process to constitute “dishonesty”
in violation of the Handbook policy. (Doc. 68-4, ¶5).
The Alabama Board of Nursing investigation of Plaintiff arising from the
regulatory issues at The Blake was not concluded until September 2014. (Doc. 64-2,
pp. 10-11). Plaintiff entered into a Consent Order/plea bargain resulting in a twoweek probationary status of her nursing license from September 30, 2014 through
October 14, 2014, during which time she could not serve in a supervisory nurse
position. (Doc. 64-2, pp. 11-17; Doc. 64-1, pp. 104-113). If Plaintiff had still been
working for Defendant at the time of her probationary status, Defendant could have
accommodated her for the two weeks, but Polys is not sure that they would have, as
a determination would have had to be made whether Plaintiff would be brought
back into a leadership role knowing what was in the consent order. (Doc. 64-1, pp.
56-59). Polys testified that they would have looked at the findings from the Board
and how that related to the position they had Plaintiff in to determine whether to
terminate Plaintiff or to allow her to keep the same job. (Doc. 64-1, pp. 56-60). If
they had received a report that an employee had a pending issue and that no
determination had been made, they would call the Board to get an idea of the
issues, discuss them with the employee, and handle it on a case-by-case basis. (Doc.
64-1, p. 55). It would not be an automatic termination unless the Board said that
the employee was told to inform the employer and the employee had failed to do so.
(Doc. 64-1, p. 55). According to Polys, if she had obtained all of the information that
had come to light about Plaintiff’s prior employment and her licensure issues, Polys
would not have hired Plaintiff as the Assistant Director of Nursing, a high-level
supervisory position, because Plaintiff provided false, misleading and incomplete
information during the hiring process. (Doc. 68-4, ¶ 5). Polys states that if she had
discovered this information after Plaintiff was hired and was serving as the
Assistant Director of Nursing, Polys would have terminated Plaintiff’s employment
immediately for providing false, misleading and incomplete information in violation
of the Company’s policies. (Doc. 68-4, ¶ 5).
Defendant accommodated three other nurses who had been placed on
probationary status by the Board, Elizabeth Griffith, Jessica Pharr and Melanie
Bayha. Griffith received disciplinary action from the Board during her employment
with the Defendant and remained employed. (Doc. 64-5, pp. 17-19). Griffith let
Polys know that she had an investigation pending. (Doc. 64-1, p. 55).
The Defendant knew that Pharr’s license was on probationary status and
that she had been fired from her previous employer at the time that they hired her,
but they did not put her in a supervisory position. (Doc. 64-5, pp. 7-13). The
information was all on her application and she was very up front and open about
what had happened. (Doc. 64-5, pp. 12-14; Doc. 64-1, pp. 16-17). Polys was
concerned about Pharr’s issues, but ultimately agreed to hire her. (Doc. 64-5, p. 15;
Doc. 64-1, p. 17).
Bayha received disciplinary action from the Board during her employment
with the Defendant resulting in her license being placed on probationary status for
a period of five years, and she remained employed. (Doc. 64-5, pp. 15-19).
A. Motion to Strike
Plaintiff moves to strike portions of the declaration of Mary Kay Polys (Doc.
68-4), which was submitted in opposition to Plaintiff’s motion for partial summary
judgment. Plaintiff asserts that the declaration contains irrelevant, vague,
ambiguous and conclusory statements, hearsay, statements that are not based on
Polys’ personal knowledge and statements that contradict Polys’ prior deposition
Plaintiff first contends that the entire declaration should be stricken because
it does not expressly aver that the content is based on Polys’ personal knowledge.
Affidavits or declarations can be “used to support or oppose a motion” as long as
they are “made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the
matter stated.” FED. R. CIV. P. 56(c)(4). Plaintiff has offered no authority that
requires a declaration to expressly state that it is made on personal knowledge, and
Rule 56 does not specify that such language must be included. The declaration as a
whole should not be stricken for failure to expressly aver that it is based on
Plaintiff next objects to statements by Polys that she relied upon information
provided by Sharon Prince-Moore about information Plaintiff provided in her
interview with Moore. Polys avers in her declaration that she relied on this
information in making the decision to hire Plaintiff. Plaintiff contends that
statements by Moore about what Plaintiff said constitutes hearsay and that Polys
does not have personal knowledge of the information. Although Plaintiff argues
otherwise, the Court finds that this information was not offered for the truth of the
matter stated, but rather to show the basis for Polys’ decision to hire Plaintiff. See
Goode v. Wild Wing Cafe, 588 F. App'x 870, 875 (11th Cir. 2014) (“such testimony
was proffered as evidence of Wings' rationale for its decision to terminate Mr.
Goode, rather than for the truth of the matters asserted” (citing FED. R. EVID. 801(c)
and Moore v. Sears, Roebuck & Co., 683 F.2d 1321, 1323 n. 4 (11th Cir.1982)). The
Court will consider the statements on that basis and not for the truth of the matters
asserted in the statements. The Court notes, however, that the information
provided by Plaintiff to Moore during the interview process has been offered
through other evidence that has not been objected to by the parties.
Plaintiff also objects to statements by Polys about information that has been
provided to her during this litigation concerning Plaintiff’s employment at The
Blake and the Alabama Nursing Board’s investigation of Plaintiff. Again the
information about Plaintiff’s employment and investigation were not offered for
their truth, but to show the basis for Polys’ conclusion that if she had been provided
with this information earlier, she would not have hired Plaintiff, or would have
terminated Plaintiff if she had already been hired at the time the information came
to light. Polys even states in the declaration that she has no first hand knowledge
of these facts. Likewise, Polys’ statement about what she believes the information
shows is offered to show the basis of Polys’ conclusion. Plaintiff is correct that
“Rule 56(e)’s personal knowledge requirement prevents statements in affidavits
that are based, in part, ‘upon information and belief’ - instead of only knowledgefrom raising genuine issues of fact sufficient to defeat summary judgment.” Pace v.
Capobianco, 283 F.3d 1275, 1278 (11th Cir. 2002) (citations omitted). “Likewise, an
affidavit stating only that the affiant ‘believes’ a certain fact exists is insufficient to
defeat summary judgment by creating a genuine issue of fact about the existence of
that certain fact.” Id. at 1278-79 (citations omitted). However, Polys’ belief
statements are only offered to show Polys’ rational for determining that she would
not have hired or would have terminated Plaintiff if she had been presented with
the information earlier. See Letson v. Liberty Mut. Ins. Co., 523 F. Supp. 1221, 1226
(N.D. Ga. 1981) (“Defendant characterizes the statement as hypothetical,
speculative, and conclusory. However, a statement by a person about his state of
mind or intent is admissible as evidence of such intent. This is true even where a
statement is deemed to be an opinion on an ultimate issue in the case.” (citations
omitted)). Polys’ statements, such as that she “believe[s] [Plaintiff] intentionally
concealed this information” cannot be used to show Plaintiff’s mental state, but only
to show Polys’ understanding of the information she reviewed and her reasons for
her determination. The information Polys lists that she states was provided to her
during the course of the lawsuit cannot be used to show the truth of the
information. Polys has not demonstrated that she has personal knowledge of those
facts, they are merely what she reviewed and based her determination on.
Lastly, Plaintiff objects to statements by Polys that Plaintiff contends
contradict Polys’ prior deposition testimony. Affidavit statements may be stricken
as a sham when they directly contradict, without explanation, a witness's previous
sworn testimony. See McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1240 n.
7 (11th Cir. 2003); see also Rollins v. TechSouth, Inc., 833 F.2d 1525, 1530 (11th
Cir. 1987) (“[A] party cannot give clear answers to unambiguous questions in a
deposition and thereafter raise an issue of material fact in a contradictory affidavit
that fails to explain the contradiction.” (internal quotations and citation omitted)).
When an affidavit is contradictory to the extent that it is “inherently inconsistent”
with deposition testimony, a court should disregard that affidavit as a sham and
exclude it from the evidence considered in a motion for summary judgment. Rollins,
833 F.2d at 1530; Lane v. Celotex Corp., 782 F.2d 1526, 1531 (11th Cir. 1986).
Plaintiff objects to the following statement as contradictory:
At [the time I made the final decision to hire Plaintiff], the only
information available to me about her previous employment as the
Director of Wellness with The Blake at Malbis, an assisted-living
nursing facility in Daphne, Alabama, was the information she reported
on her Employment Application that her “reason for leaving” The
Blake was “end of contract” and the information Ms. Williamson
provided during her employment interviews.
(Doc. 68-4, ¶ 2). Plaintiff contends the above statement is contradictory because
Polys’ deposition testimony makes clear that Plaintiff did not fill out an
Employment Application until after she was hired. However, the Court does not
find the statement to be directly contradictory. As Polys explained at her
deposition, although Plaintiff did not fill out the Employment Application until after
she started work, if something had come to light as a result of the application being
inaccurate, incomplete or misleading, Defendant had the ability to rescind the offer
of employment. Thus, although Polys did not rely on the Employment Application
before she made the initial job offer, it was still considered in the final
determination of whether she would be allowed to have or continue in the job.
Plaintiff also objects to the following statement as contradictory:
During the course of Ms. Williamson’s lawsuit against Ball
HealthCare, I have been provided information and documents that to
me, clearly show that Ms. Williamson provided false, incomplete and
misleading information during the employment process when she was
hired as the ADON for RHCC.
(Doc. 68-4, ¶ 3). Plaintiff asserts that the above statement is contradictory because
Plaintiff was never asked about pending investigations or her licensure status
during the interview process, Polys stated that she did not have any reason to
believe Plaintiff would not have been forthcoming at the time she was hired, and
because Polys testified that she did not know whether Plaintiff’s reason for leaving
the Blake was false or not and did not know of any other false statements in
Plaintiff’s Employment Application. The Court finds the testimony is not directly
contradictory. The fact that Polys did not specifically ask Plaintiff about pending
investigations or her licensure does not forego the possibility that Plaintiff provided
false, incomplete and misleading information. Whether or not Polys believed
Plaintiff would have been forthcoming during her interview does not contradict
Polys’ declaration statement. Lastly, the fact that Polys does not know for a fact, in
other words that she does not have first hand knowledge of the reason Plaintiff left
the Blake, does not preclude Polys from concluding from the information she
reviewed that Plaintiff’s stated reason was false, incomplete or misleading.
Plaintiff also objects, as contradictory, to Polys determination that if she had
obtained the information about Plaintiff she would not have hired her or would
have terminated her from employment for providing false, misleading and
incomplete information. Plaintiff points to Polys’ testimony about the company’s
practices when they receive credible information that there is a licensure issue.
Polys explained at her deposition that if she received a report of some pending issue
and no determination had been made, she would call the Board and get an idea
what the issues were, have a discussion with the employee, and handle it on a caseby-case basis. Polys testified that it would not be an automatic termination unless
the employee was told to inform the employer and had failed to do so. However, in
Plaintiff’s case, Polys did not need to investigate the issue herself. Polys was later
provided with information about the investigation that was pending at the time
Plaintiff applied for the position and she reviewed an abundant amount of
information about the circumstances of Plaintiff’s prior employment and Plaintiff’s
licensure issues. The fact that any determination would be made on a case-by-case
basis does not preclude Polys from making a determination after she reviewed the
relevant information. For all of the reasons discussed above, the Court denies
Plaintiff’s motion to strike the declaration of Mary Kay Polys.
B. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall
be granted: “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” The trial court’s
function is not “to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). “The mere existence of some evidence to support the
non-moving party is not sufficient for denial of summary judgment; there must be
‘sufficient evidence favoring the nonmoving party for a jury to return a verdict for
that party.’” Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002) (quoting
Anderson, 477 U.S. at 249). "If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted." Anderson, at 249-250.
(internal citations omitted).
The basic issue before the court on a motion for summary judgment is
“whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.”
See Anderson, 477 U.S. at 251-252. The moving party bears the burden of proving
that no genuine issue of material fact exists. O'Ferrell v. United States, 253 F.3d
1257, 1265 (11th Cir. 2001). In evaluating the argument of the moving party, the
court must view all evidence in the light most favorable to the non-moving party,
and resolve all reasonable doubts about the facts in its favor. Burton v. City of Belle
Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). “If reasonable minds could differ on
the inferences arising from undisputed facts, then a court should deny summary
judgment.” Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th
Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838,
841 (11th Cir. 1985)).
Once the movant satisfies her initial burden under Rule 56(c), the nonmoving party "must make a sufficient showing to establish the existence of each
essential element to that party's case, and on which that party will bear the burden
of proof at trial." Howard v. BP Oil Company, 32 F.3d 520, 524 (11th Cir.
1994)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Otherwise stated,
the non-movant must “demonstrate that there is indeed a material issue of fact that
precludes summary judgment.” See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608
(11th Cir. 1991). The non-moving party “may not rely merely on allegations or
denials in its own pleading; rather, its response .... must be by affidavits or as
otherwise provided in this rule be set out specific facts showing a genuine issue for
trial.” Vega v. Invsco Group, Ltd., 2011 WL 2533755, *2 (11th Cir. 2011). “A mere
‘scintilla’ of evidence supporting the [non-moving] party’s position will not suffice;
there must be enough of a showing that the jury could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted).
“[T]he nonmoving party may avail itself of all facts and justifiable inferences in the
record taken as a whole.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th
Cir. 1992). “Where the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party, there is no genuine issue for trial.” Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 at 587 (1986) (internal
quotation and citation omitted).
C. After-Acquired Evidence Defense
Plaintiff contends that Defendant cannot prevail on its affirmative defense of
after-acquired evidence. The doctrine of after-acquired evidence was established by
the Supreme Court in McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995).
“After-acquired evidence” is evidence of an employee’s wrongdoing that is not
revealed until after the employee’s discharge. Id. at 354. Not only is evidence of
wrongdoing during a plaintiff's employment relevant to the after-acquired evidence
defense, but also evidence of “the employee's misrepresentations in a job application
or resume” is relevant. Wallace v. Dunn Constr. Co., 62 F.3d 374, 379 (11th Cir.
1995). “[T]he after-acquired evidence does not bar recovery, but merely affects the
remedy.” Id. at 381 (quoting McKennon, 513 U.S. at 358, 359). “The [Supreme]
Court held that if an employer ‘establish[es] that the wrongdoing was of such
severity that the employee in fact would have been terminated on those grounds
alone if the employer had known of it at the time of the discharge,’ an award of back
pay should generally be limited to the period of time ‘from the date of the unlawful
discharge to the date the new information was discovered.’ ” Holland v. Gee, 677
F.3d 1047, 1064–65 (11th Cir. 2012) (quoting McKennon, 513 U.S. at 362-63).
“Under the doctrine of after-acquired evidence, the burden is on the employer to
prove that ‘the wrongdoing was of such severity that the employee in fact would
have been terminated on those grounds alone.’ ” Id. at 1065 (11th Cir. 2012)
(quoting McKennon, 513, U.S. at 362-63). The misconduct must be so grave that
immediate discharge would have followed its disclosure. Dunn Const., 62 F.3d at
379 (quoting McKennon, 513 U.S. at 356).
For Defendant’s after-acquired evidence defense to survive summary
judgment, Defendant must show that, looking at the evidence in the light most
favorable to Defendant, there is a genuine issue of fact regarding whether 1)
Plaintiff committed a wrongdoing, and 2) the wrongdoing was of such severity that
the Defendant would have terminated Plaintiff had it known of the misconduct. See
McKennon, 513 U.S. at 361–62. The question here is whether there is a genuine
issue of fact regarding 1) whether Plaintiff provided false, misleading and
incomplete information during the hiring process or on her Application for
Employment and 2) whether the misconduct was severe enough that Defendant
would have terminated Plaintiff immediately upon discovering Plaintiff provided
the alleged false, misleading and incomplete information.
As to whether the information was false, misleading or incomplete, Plaintiff
stated on her Application for employment that she left The Blake because it was
“end of contract.” While Plaintiff testified that she had verbally entered into a oneyear contract of employment, Mr. Barclay averred that there was no employment
contract of any kind. There is evidence that Plaintiff was to be terminated because,
due to the problems with the ADPH survey, management of the facilities was going
to change and Plaintiff’s employment would terminate as a result. Plaintiff
requested that she be allowed to resign instead, but there is clearly evidence that it
was not Plaintiff’s choice to leave and that she did not leave because her contract
Defendant asserts that Plaintiff was also misleading in her interview when
she reported that she had inherited regulatory issues while working at The Blake
and did not disclose the issues that related to her own deficiencies or the fact that
she had a pending investigation against her. There is evidence that Moore and
Polys were very interested in Plaintiff’s regulatory history and that they had
discussed with Plaintiff her regulatory history. It was an important issue in their
consideration of any candidate. There is no evidence that Plaintiff was required by
the Board to disclose the information or that Plaintiff was asked a direct question
about her licensure status and lied, but there is evidence that her statements about
those issues were incomplete and misleading. Plaintiff also reportedly told Moore
and Polys that the surveys had cleared before she left The Blake, whereas the
evidence indicates the surveys had in fact not cleared.
According to Polys, who made the decision to hire Plaintiff, the false,
incomplete, and misleading information Plaintiff provided violated the Employee
Handbook and the promise Plaintiff signed that the information she gave in her
Employment Application was true and complete. The Employee Handbook states
that such misconduct will result in disciplinary action that may include discharge.
Similarly, the promise Plaintiff signed at the end of her Application states that if
she gives false, misleading or incomplete information in the Application, the
Company may refuse to hire her or, if hired, may discharge her. An employee’s
failure to disclose that she had resigned in lieu of being fired is a wrongdoing that
has been found in at least one case to be sufficiently severe that the company would
have terminated the employee immediately had it known. See e.g. Forte v. W.
Florida Med. Ctr. Clinic P.A, 2015 WL 2086231, at *6 (N.D. Fla. May 5, 2015)
(finding that the plaintiff engaged in wrongdoing by failing to disclose on her
employment application that she had been asked to resign in lieu of being fired by
her previous employer and finding that the wrongdoing was of such severity, based
on the employer’s employment practices and policies, that the defendant would have
terminated her on those grounds alone had it known about it prior to the time it
discharged the plaintiff.). The import of Plaintiff’s alleged lie regarding why she left
The Blake is compounded by the allegations that Plaintiff also gave incomplete or
misleading information about her regulatory history at The Blake and about the
extent of her responsibility for the license issues at The Blake. Polys’ and Moore’s
testimony indicates that Plaintiff’s ADPH regulatory history was key information
they considered in deciding whether to hire Plaintiff. Plaintiff reportedly concealed
the issues by telling them that the ADPH surveys at The Blake had cleared and
that Plaintiff voluntarily chose to leave her position at The Blake. Such lies would
likely head off further questions about Plaintiff’s regulatory history and license
status. Polys has averred that if she had been made aware of all of the facts and
circumstances concerning Plaintiff’s employment and regulatory history at The
Blake, such as that a number of the deficiencies at the Blake were attributed to
Plaintiff, that the issues at The Blake were not cleared, that Plaintiff did not have
an employment contract with and did not voluntarily choose to leave The Blake, and
that there were pending investigations against Plaintiff, then she would not have
hired Plaintiff, or if she discovered the information after Plaintiff became employed,
she would have terminated Plaintiff. Such evidence has been found to support the
application of the after-acquired evidence doctrine where employment history
indicated the Defendant had previously terminated others for falsifications or
misrepresentations. See e.g. Yeary v. Florida Dep't of Corr., 1997 WL 284648, at *5
(M.D. Fla. May 13, 1997) (granting summary judgment in favor of defendant on
issue of after-acquired evidence where Defendant submitted an affidavit stating
that it would have immediately terminated the plaintiff as soon as it learned of the
omissions/falsifications in her Application just as it had previously done to similarly
situated employees for analogous acts of falsification and/or misrepresentation).
Plaintiff attempts to discredit Polys testimony by pointing to her testimony that
when licensure issues came to light they would address them on a case-by-case
basis after investigating the facts. However, as discussed above with regard to
Plaintiff’s motion to strike, Polys has been provided with the information and has
concluded that if she had been given all of the facts presented, she would have
terminated Plaintiff. In other words, Polys has considered the specifics of Plaintiff’s
case and made the decision based on the circumstances of Plaintiff’s case.
Plaintiff points to three other nurses who were put on probationary status by
the Board but were not terminated. However, the evidence does not indicate that
any of these other nurses concealed the information from Defendant. The license
issues for Elizabeth Griffith and Melanie Bayha occurred while they were working
for Defendant and the information was fully disclosed to the Defendant. Jessica
Pharr was reportedly very upfront and open about her history and circumstances
when Defendant hired her. Thus, the fact that Defendant did not terminate
Griffith, Bayha or Pharr does not demonstrate that Defendant would not have
terminated Plaintiff upon discovering the after-acquired evidence.
In her reply to the motion to summary judgment, Plaintiff submits evidence
that she contends shows that Polys herself was dishonest during her application
process.1 Polys’ prior employment with Catholic Health East, a division of Mercy
Medical, reportedly ended by “mutual agreement” after Polys informed the COO
that she disagreed with her employer’s plans on how to continue to run the facility.
(Doc. 72-2, pp. 5-7). Polys felt it was time for her to go in a different direction
because they were at an impasse. (Doc. 72-2, p. 8). Polys was not asked to resign
and she negotiated a severance. (Doc. 72-2, p. 7). Polys had not been disciplined or
received any negative performance evaluations. (Doc. 72-2, p. 8). On her
Employment Application with the Defendant Company, Polys stated that she left
Catholic East “[t]o pursue other interests.” (Doc. 72-2, p. 40). According to Polys she
The Court notes that it is generally improper to raise new arguments for the first
time in a reply brief. See Randolph v. J.M. Smucker Co., 303 F.R.D. 679, 698 n 19
(S.D. Fla. 2014) (“This Court has noted that it “cannot consider new arguments
raised for the first time in a reply brief.” Powell v. Carey Int'l, Inc., 490 F.Supp.2d
1202, 1206 (S.D. Fla. 2006) (citing Herring v. Secretary. Dept. of Corrections, 397
F.3d 1338 (11th Cir. 2005) (“As we repeatedly have admonished, ‘[a]rguments raised
for the first time in a reply brief are not properly before a reviewing court.’ ”)).
However, the Court will discuss the evidence since the newly submitted evidence is
offered as rebuttal to support Plaintiff’s original argument that Defendant’s
employment practices indicate Defendant would not fire Plaintiff.
explained in her interview all the information they needed to consider hiring her
and feels she was up front with everything that she told them. (Doc. 72-2, pp. 2628). However, on a request for reference form, Polys stated that the reason for
leaving was “[r]estructure, change and organization needs.” (Doc. 72-2, p. 44). Polys
testified that it was a mistake and that she accidently put down the reason she left
another company, Centegra. (Doc. 72-2, pp. 31-32). Polys had previously been
terminated from Centegra as a result of a restructuring when her position was
eliminated. (Doc. 72-2, pp. 8-9).
The Court does not find that Ms. Polys’ circumstances are sufficiently
analogous to Plaintiff’s alleged circumstances to demonstrate as a matter of law
that Defendant would not have terminated Plaintiff if it had discovered the afteracquired evidence. Ms. Polys admits that the reason she stated that she left
Catholic Health East in the reference form was incorrect. However, Polys contends
the incorrect reason was merely an error. Moreover, the reported true reason Polys
left was because she chose to leave and she fully explained all of the circumstances
during her interview process. More importantly, there is evidence that Polys was
up front about her employment history and that all of the correct information
concerning Polys’ employment history was provided to the Defendant during the
interview process. The evidence does not show that Polys hid or concealed from the
Defendant Company any disciplinary actions, terminations, or regulatory history.
Plaintiff also argues that there is no evidence that any false or misleading
information she provided constituted an intentional deceit. However, even if the
Court could conclude that there was no evidence of Plaintiff’s intent, application of
the after-acquired evidence doctrine does not require a showing that the wrongdoing
was intentional. See e.g. Cook v. Shaw Indus., 953 F. Supp. 379, 385 (M.D. Ala.
1996) (finding that even if the omission was unintentional, the plaintiff would have
been terminated); Yeary v. Florida Dep't of Corr., 1997 WL 284648, at *6 (M.D. Fla.
May 13, 1997) (finding after-acquired evidence doctrine applies even if the
misrepresentations were not intentional). Accordingly, in light of all of the above,
the Court finds that looking at the evidence in the light most favorable to
Defendant, there is a genuine issue of material fact regarding whether Plaintiff
committed a wrongdoing of such severity that the Defendant would have
terminated Plaintiff had it known of the misconduct.
For the reasons stated above, Plaintiff’s motions for partial summary
judgment (Doc. 62) and motion to strike (Doc. 69) are DENIED.
DONE and ORDERED this 11th day of August, 2016.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE
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