Henderson v. Sovereign Healthcare of Tuskawilla, LLC

Filing 40

ORDER denying 21 Defendant's Motion for Summary Judgment. Signed by Judge Paul G. Byron on 4/17/2017. (SEN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

SUSAN HENDERSON,
Plaintiff,
v.

Case No: 6:15-cv-1879-PGB-KRS

SOVEREIGN HEALTHCARE OF
TUSKAWILLA, LLC,
Defendant.
ORDER
This cause comes before the Court without oral argument on Defendant’s Motion
for Summary Judgment and Memorandum of Law in Support Thereof (Doc. 21), filed
January 23, 2017. The parties have completed their briefing and the Court is otherwise
fully advised on the premises. Upon consideration and review of the record, including all
pleadings, deposition transcripts, affidavits, exhibits, and the parties’ respective legal
memoranda, the Court will deny Defendant’s Motion for Summary Judgment.
BACKGROUND 1
Susan Henderson (“Plaintiff”), as power of attorney for her daughter, Brittany
Henderson (“Henderson”), sues Sovereign Healthcare of Tuskawilla, LLC (“Sovereign”)—
the owner and operator of Tuskawilla Nursing and Rehab Center (“Tuskawilla
Nursing”) 2—for its alleged violations of the Americans with Disabilities Act of 1990

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2

The Court recites this account of the facts in the light most favorable to Plaintiff.
Unless indicated otherwise, the Court refers to Sovereign and Tuskawilla Nursing
collectively as “Sovereign.”
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(“ADA”), 42 U.S.C. §§ 12101–12213, and the Florida Civil Rights Act (“FCRA”), Fla. Stat.
§§ 760.01–.11.
Henderson is a twenty-six-year-old female with Down syndrome. (Pl.’s Dep. 8:8–
12). In 2010, Henderson graduated from high school with a special education diploma,
and from 2011 through 2014, she attended a Vocational Rehabilitation Program (“VRP”),
which assists and prepares special needs children and adults for independent living and
employment. (Id. at 11:6–12:18). Due to a lack of success with VRP, Plaintiff discontinued
using its services and decided to independently pursue employment for Henderson. (Id.
at 13:10–17, 15:12–19).
Thereafter, Plaintiff and Henderson enrolled with Quest, Inc., a company that offers
vocational training and job placement services to individuals with disabilities. (Id. at
13:18–14:21). Quest assigned Henderson a job coach and employment specialist,
Lyndsay Gordon (“Gordon”), to assist her with finding a job. (Id. at 14:22–15:2). On
March 21, 2013, Gordon contacted Mary Ann Gutreuter (“Gutreuter”), the Dietary
Manager of Tuskawilla Nursing, regarding a positon as a part-time dietary aide in their
food services department. (West Aff. ¶ 10; Doc. 21-2, p. 3; Pl.’s Dep. 30:14–31:4). Gordon
believed Henderson was perfect for the job, so she contacted Plaintiff. (Doc. 21-2, p. 3;
Pl.’s Dep. 30:19–24).
Henderson applied for the position, and was subsequently interviewed by
Gutreuter on March 28, 2013. (Pl.’s Dep. 30:18–32:10; Doc. 21-2, p. 3). After the
interview, Gutreuter advised Plaintiff that Henderson’s employment was conditioned upon
providing two references from the nursing homes at which Henderson had previously
volunteered, and a successful Level II background screening. (Pl.’s Dep. 32:21–33:3).

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Henderson had difficulty obtaining the required references and Tuskawilla Nursing
worked with her and agreed to allow Henderson to submit a reference from a source other
than one of the nursing homes. (Pl.’s Dep. 33:4–25).
On April 4, 2013, Tuskawilla Nursing’s Human Resources Coordinator, Lisa
Sasser (“Sasser”), conducted “a search on [Henderson] through the [Agency for Health
Care Administration’s] web portal.” (West Aff. ¶ 14). Sasser did not find Henderson’s
fingerprints in the system, which were required to determine eligibility to work at
Tuskawilla Nursing. (Id.). Thus, Sasser called Henderson to schedule an appointment to
be fingerprinted. (Pl.’s Aff. ¶ 8; Pl.’s Dep. 34:11–35:1). When Sasser called, Plaintiff
answered. (Pl.’s Aff. ¶ 8). Plaintiff told Sasser that Henderson was not home, but that she
would take a message. (Id.). Sasser insisted on speaking to Henderson and would not
tell Plaintiff why she was calling. (Id.). Plaintiff explained that she preferred to act as an
intermediary between Sasser and Henderson to ensure that all information was relayed
properly. (Id.; Pl.’s Dep. 37:22–38:10). When Sasser asked why Plaintiff wanted to act as
an intermediary, Plaintiff informed Sasser that Henderson had Down syndrome. (Id. at
38:5–12; Pl.’s Aff. ¶ 8). Sasser then “became very rude” and stressed the importance of
speaking with Henderson alone. (Pl.’s Aff. ¶ 8). Plaintiff told Sasser that she would have
Henderson return her call. (Id.). Sasser said she would be in the office until 4 p.m., and
until 3 p.m. on Friday, April 5. (Id.).
Later that day, Henderson returned Sasser’s call. (Id. ¶ 9). Sasser instructed
Henderson to come to Tuskawilla Nursing the next day for fingerprinting, but to call first
to make sure that she was in the office. (Id.; Pl.’s Dep. 35:2–5). In accordance with
Sasser’s directives, on April 5, 2013, at approximately 9:45 a.m., Henderson called

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Tuskawilla Nursing to make an appointment. (Pl.’s Aff. ¶ 10). Henderson identified herself
and explained the reason for her call, but the receptionist told her that Sasser was out for
the day. (Id.). Plaintiff “found that strange,” and called back a few minutes later. (Id.).
When the receptionist answered, Plaintiff did not identify herself, she simply asked to
speak with Sasser. (Id.). The receptionist told Plaintiff that Sasser was on the phone but
that Plaintiff could leave a voicemail. (Id.). Plaintiff left a voicemail, informing Sasser that
Henderson wanted to set an appointment for fingerprinting and asking Sasser to return
her call. (Id.).
When Sasser did not call back within a half hour, Plaintiff had Henderson call
Sasser again at 10:20 a.m. (Id. ¶ 11). This time, the receptionist told Henderson that
Sasser was on the phone, and asked Henderson to leave a voicemail. (Id.). Henderson
left Sasser a voicemail with her name and phone number. (Id.). Approximately fifteen to
twenty minutes passed and Sasser did not return Henderson’s call, thus Henderson
called and “left [Sasser] another voicemail message in case the other messages had been
overlooked.” (Id.). When Sasser did not call back for more than an hour, Plaintiff and
Henderson went to Tuskawilla Nursing to try to speak to her in person. (Id. ¶ 12). When
Plaintiff and Henderson identified themselves to the receptionist, they were told that
Sasser was not in. (Id.).
Shortly after noon, Plaintiff again called to speak to Sasser, but the receptionist
said that she was on the phone and that Plaintiff could leave a voicemail. (Id. ¶ 13).
Henderson also called Sasser again at approximately 2:00 p.m. (Id.). Henderson was
again told that Sasser was on the phone and to leave another voicemail. (Id.). Sasser

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never returned either Plaintiff’s or Henderson’s calls or otherwise contacted Henderson
to set up an appointment for fingerprinting. (Id. ¶ 14).
On April 11, 2013, while Henderson was still proceeding through the hiring
process, Gutreuter resigned from Sovereign. (West Aff. ¶ 15). On April 12, 2013, Plaintiff
called Tuskawilla Nursing and asked to speak to food services because she wanted to
know why Sasser was not returning their calls and why Henderson had not been
fingerprinted. (Pl.’s Aff. ¶ 18). At that time, Plaintiff learned that Gutreuter was no longer
employed with Sovereign. (Id.). Plaintiff then called Gordon to see if Sasser had called to
set up fingerprinting, and was told she had not. (Id. ¶ 19). At the time, Plaintiff told Gordon
that she did not want Henderson working at Tuskawilla Nursing because she did not feel
Plaintiff would be safe without Gutreuter working there. (Id.). Plaintiff also told Gordon
that she was going to file a discrimination charge. (Id.). Gordon convinced Plaintiff to allow
Quest to pursue completion of Henderson’s hiring process, and Plaintiff agreed (Id. ¶ 24).
Neither Sasser nor anyone else at Tuskawilla Nursing contacted Plaintiff or
Henderson to complete the fingerprinting process. (Id. ¶ 20). On April 25, 2013, Plaintiff
filed a charge of discrimination with the Equal Employment Opportunity Commission
(“EEOC”). (Id. ¶ 21). In mid-May 2013, after Plaintiff filed the charge of discrimination,
Sasser called Quest and requested that they send someone to Tuskawilla Nursing to
work in food services. (Id. ¶ 23). Sasser stated that Henderson was her first choice. (Id.).
When this information was relayed to Plaintiff, she told Gordon that Henderson would not
be taking the job. (Id.; Pl.’s Dep. 41:4–42:7).
Sometime thereafter, the EEOC notified Plaintiff of her right to sue, and she
brought suit against Sovereign on November 5, 2015. In the Complaint, Plaintiff asserts

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claims for disability discrimination under the ADA and the FCRA. Sovereign now moves
for summary judgment on both claims.
STANDARD OF REVIEW
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). The party moving for summary judgment must “cit[e] to
particular parts of materials in the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory
answers, or other materials” to support its position that it is entitled to summary judgment.
Fed. R. Civ. P. 56(c)(1)(A). “The court need consider only the cited materials,” but may
also consider any other material in the record. Fed. R. Civ. P. 56(c)(3).
A factual dispute is “genuine” only if “a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact
is “material” if the fact could affect the outcome of the lawsuit under the governing law.
Id. The moving party bears the initial burden of identifying those portions of the record
demonstrating a lack of a genuine factual dispute. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986); Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004). If
the movant shows that there is no evidence to support the non-moving party’s case, the
burden then shifts to the non-moving party to demonstrate that there are, in fact, genuine
factual disputes which preclude judgment as a matter of law. Porter v. Ray, 461 F.3d
1315, 1320 (11th Cir. 2006).
To satisfy its burden, the non-moving party “must do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co.

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v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the non-movant must go beyond
the pleadings and “identify affirmative evidence” which creates a genuine dispute of
material fact. Crawford-El v. Britton, 523 U.S. 574, 600 (1998). In determining whether
a genuine dispute of material fact exists, the court must read the evidence and draw all
factual inferences therefrom in the light most favorable to the non-moving party and must
resolve any reasonable doubts in the non-movant’s favor.

Skop v. City of Atlanta,

485 F.3d 1130, 1136 (11th Cir. 2007). Summary judgment should only be granted
“[w]here the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party.” Matsushita, 475 U.S. at 587.
DISCUSSION
The ADA prohibits employers from discriminating against “a qualified individual on
the basis of disability in regard to job application procedures, hiring, advancement, or
discharge of employees . . . and other terms, conditions, and privileges of employment.”
42 U.S.C. § 12112(a). Similarly, the FCRA prohibits employment discrimination on the
basis of an individual’s disability. See Fla. Stat. § 760.10(1). Because disability
discrimination claims under the FCRA are analyzed using the same framework as ADA
claims, Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263–64 (11th Cir.
2007) (per curiam), the Court examines Plaintiff’s claims together.
A plaintiff can establish a claim for disability discrimination using either direct
evidence or circumstantial evidence of discrimination. Curry v. Sec’y, Dep’t of Veterans
Affairs, 518 F. App’x 957, 963 (11th Cir. 2013) (per curiam). When the plaintiff relies on
circumstantial evidence to support her claim, as is the case here, the Court applies the
McDonnell Douglas burden-shifting framework. See Wascura v. City of S. Miami, 257

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F.3d 1238, 1242 (11th Cir. 2001).
Under the McDonnell Douglas framework, the plaintiff bears the initial burden of
establishing a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). The burden of production then shifts to the employer to “articulate
some legitimate, nondiscriminatory reason” for the alleged discriminatory conduct. Id.
Once the employer articulates a non-discriminatory reason for the conduct in dispute, the
plaintiff is left with the ultimate burden of proving that the employer’s proffered nondiscriminatory explanation is not the true reason for its conduct, but merely a pretext for
discrimination. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506–08 (1993).
A.

Prima Facie Case

To establish a prima facie case of disability discrimination, Plaintiff must show that
Henderson: (1) is disabled; (2) is a qualified individual; and (3) was subjected to unlawful
discrimination because of her disability. Carruthers v. BSA Advert., Inc., 357 F.3d 1213,
1215 (11th Cir. 2004) (per curiam). For purposes of its summary judgment motion, the
first prong is undisputed, as Sovereign concedes that Henderson has Down syndrome
and is therefore disabled. (Doc. 21, p. 9). Sovereign disputes, however, that Henderson
is a qualified individual and that she was subjected to unlawful discrimination because of
her disability.
1.

Qualified Individual

The ADA defines a “qualified individual” as someone with a disability “who, with or
without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).
Accordingly, Plaintiff “must show either that [Henderson] can perform the essential

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functions of [her] job without accommodation, or . . . with a reasonable accommodation.”
D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1229 (11th Cir. 2005).
Although Sovereign contends that Henderson was not qualified for the dietary aide
position, it has proffered no evidence showing that Plaintiff could not perform the essential
functions of the dietary aide position, with or without an accommodation. Sovereign simply
argues that Henderson was not qualified because she stopped the hiring process before
providing fingerprints. However, as discussed in further detail below, there remains a
genuine issue of material fact as to whether Henderson failed to submit her fingerprints
or whether Sasser discriminated on the basis of Henderson’s disability and deliberately
refused to allow Henderson to submit fingerprints.
Furthermore, construing the facts in a light most favorable to Henderson, this Court
cannot conclude that Henderson was not a qualified individual. It is undisputed that after
Henderson applied for the dietary aide position and was subsequently interviewed by
Gutreuter, Gutreuter found that Henderson performed well and requested that Henderson
provide two references in continuation of the hiring process. Henderson then produced,
and Sovereign accepted, two references and invited her to undergo a background check.
Henderson cooperated with the background check and attempted to set up a
fingerprinting appointment with Sasser. Based on these facts, a reasonable jury could
find that Plaintiff was qualified for the job.
2.

Unlawful Discrimination Based on Disability

Sovereign contends that Henderson was not unlawfully discriminated against
based on her disability and that Henderson voluntarily withdrew her application for
employment with Sovereign. (Doc. 21, pp. 5–6). Plaintiff, on the other hand, argues that

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issues of material fact exist as to whether Sasser refused to complete the hiring process
based on Henderson’s disability or whether Henderson voluntarily chose not to complete
the hiring process. Plaintiff further argues that there is sufficient circumstantial evidence
which would allow a reasonable jury to conclude Sasser unlawfully discriminated against
her based on her disability.
In support of its position that Henderson voluntarily withdrew her application for
employment, Sovereign does not provide the Court with affidavits from the individuals
involved with Henderson’s hiring process (i.e. Gutreuter, Sasser, and Gordon). Instead,
Sovereign relies heavily on the affidavit of Jack West, Jr. (“West”), the Corporate HR
Manager for Southern HealthCare Management, LLC, which is the management
company for Sovereign. (West Aff. ¶ 2).
In his affidavit, West states that Sovereign considered Henderson to have
withdrawn her application for employment because, on April 17, 2013, Gordon told Sasser
that Plaintiff would not allow Henderson to accept the dietary aide position. (Id. ¶¶ 18,
19). However, West’s assertions conflict with other record evidence. According to Plaintiff,
she did not tell Gordon that Henderson would not accept the position until mid-May, after
Plaintiff had already filed a charge of discrimination against Sovereign. (Pl.’s Dep. 41:4–
45:7; Pl.’s Aff. ¶¶ 23, 24). Plaintiff admits that she told Gordon on previous occasions that
she did not want Henderson to work at Tuskawilla Nursing, but Plaintiff explains that
Gordon convinced her to let Henderson continue with the hiring process, and Plaintiff
acquiesced. (Pl.’s Aff. ¶ 24).
Sovereign argues that the record belies Plaintiff’s testimony because it is
inconsistent with Gordon’s progress notes, dated April 12, 2013, which indicate that

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“[Plaintiff] decided that [Henderson] would not be taking the job.” (Doc. 32-1, pp. 58, 60).
However, weighing the evidence and judging the credibility of witnesses are
quintessential functions for the trier of fact, not the Court. See Hairston v. Gainesville Sun
Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993). In ruling on a motion for summary judgment,
“the evidence of the non-movant is to be believed, and all justifiable inferences are to be
drawn in [the non-movant’s] favor.” Anderson, 477 U.S. at 255. Drawing all reasonable
inferences in the light most favorable to Plaintiff, the Court finds that genuine factual
disputes remain as to whether Plaintiff told Gordon that Henderson would not accept the
dietary aide position in April 2013. Likewise, issues of fact remain as to whether Gordon
then told Sasser that Henderson would not be accepting the position on April 17, 2013.
Sue Koziol, the Vice President of Vocational and Business Services for Quest,
testified that the employment specialist, including Gordon, were required to make
progress notes to document conversations and dealings concerning each client. (Koziol
Dep. 11:8–25). These progress notes varied, but the employment specialist was required
to document: (1) communications with potential employers regarding the client,
(2) actions taken to assist a client in finding employment, and (3) the outcome of that
particular activity. (Id.).
Here, the evidentiary record reflects that Gordon documented several
communications she had with Henderson’s potential employers, including Tuskawilla
Nursing. (See Doc. 32-1, pp. 39, 44, 53, 56, 57, 59, 60). In fact, Gordon recorded
communications that she and other Quest employees had with Sasser. (See id. at pp. 56,
57, 60). Notably, however, Gordon’s progress notes do not reflect that she spoke to
Sasser on April 17, 2013. Nor do Gordon’s progress notes indicate that she ever told

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Sasser that Henderson would not be accepting the dietary aide position. (See id. at
pp. 59–60 (documenting actions Gordon took on April 17, 2013)). Given the absence of
any record of Gordon’s alleged conversation with Sasser, a jury could find that Gordon
never recorded the conversation in her progress notes or that the conversation simply
never occurred. 3
Construing the facts in the light most favorable to Plaintiff, there is sufficient
circumstantial evidence in the record to support her assertion that Sasser discriminated
against Henderson based on her disability. Before Sasser had any knowledge that
Henderson was disabled, she conducted a preliminary background check through the
AHCA web portal. Because Henderson’s fingerprints were not in the AHCA system,
Sasser attempted to contact Henderson about scheduling a fingerprinting appointment.
(Pl.’s Aff. ¶ 8). However, upon learning that Henderson was disabled, Sasser made no
further attempts to schedule a fingerprinting appointment for Henderson. (Id. ¶¶ 10–14).
Plaintiff and Henderson called Sasser multiple times and even visited her office to
schedule an appointment, but Sasser never returned their calls. (Id.). Instead, Sasser
called Quest to “check references” and confronted Gordon about Quest’s request to
have a job coach present at Tuskawilla Nursing for a period of time to accommodate

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The Court notes that the only documented conversation between Gordon and
Sovereign regarding Henderson’s change of interest in the dietary aide position
occurred on May 28, 2013. On this date, Gordon purportedly sent an email to
Sovereign stating that Plaintiff had decided not to let Henderson take the position
because she did not feel comfortable letting Henderson work at Sovereign without
Gutreuter there. (See Doc. 21-1, p. 7; Doc. 29-1, ¶ 20). Absent from Gordon’s email,
however, are any facts indicating that Gordon informed Sasser or anyone else at
Sovereign that Henderson would not be accepting the dietary aide position prior to
May 28, 2013.

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Henderson and ensure that she understood her responsibilities as a dietary aide. (Doc.
32-1, p. 56; West Dep. 9:19–25).
In addition, Sasser spoke to West and expressed her concerns about working
with Quest to fill the dietary aide position. However, West advised Sasser that it “was
absolutely fine,” that “[i]t was consistent with [Sovereign’s] affirmative action obligations,
and if [Henderson is] the most qualified candidate, [Sovereign] should certainly hire her.”
(West Dep. 9:14–25). Still, Sasser never contacted Henderson to schedule a
fingerprinting appointment. It was not until after Plaintiff filed a charge of discrimination
against Sovereign that Sasser called Quest and expressed her desire to hire Henderson.
(Pl.’s Aff. ¶ 23).
In light of the timeline of events, a reasonable jury could find that Sovereign
discriminated against Plaintiff on the basis of her disability by thwarting her ability to
complete the hiring process.
B.

Sovereign’s Legitimate Reasons and Pretext

Sovereign asserts that it did not hire Henderson because “Plaintiff advised Quest
that . . . Henderson . . . would not be accepting the job.” (Doc. 21, pp. 11–12). Plaintiff
therefore bears the ultimate burden of persuading the jury that Sovereign’s proffered
reason for not hiring Henderson is not the true reason for its actions, but merely a pretext
to illegally discriminate against Henderson. Sovereign submits that the evidence on
summary judgment is insufficient for Plaintiff to do so.
“To show pretext, a plaintiff must come forward with evidence, including the
previously produced evidence establishing the prima facie case, sufficient to permit a
reasonable factfinder to conclude that the reasons given by the employer were not the

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real reasons for the adverse employment decision.” Hurlbert v. St. Mary’s Health Care
Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006) (quoting Chapman v. AI Transp., 229
F.3d 1012, 1024 (11th Cir. 2000) (en banc)) (internal quotation marks omitted). In other
words, the employee must adduce evidence which exposes “such weaknesses,
implausibilities, inconconsistencies, incoherencies or contradictions in the employer’s
proffered legitimate reasons . . . that a reasonable factfinder could find them unworthy of
credence.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 771 (11th Cir. 2005) (per
curiam) (quoting Cooper v. Southern Co., 390 F.3d 695, 725 (11th Cir. 2004)).
As discussed above, there is sufficient evidence in the record calling into question
whether Plaintiff withdrew Henderson’s employment application as Sovereign contends.
Plaintiff explains that, while she was hesitant to let Henderson continue with her
application because of how Henderson had been treated so far, Plaintiff ultimately agreed
with Gordon’s recommendation to allow the hiring process to proceed. (Pl.’s Aff. ¶¶ 17–
20, 24). A rational jury could conclude that Plaintiff’s explanation of the events directly
contradicts Sovereign’s stated reason for not hiring Henderson.
Further, there is evidence in the record suggesting that, after learning Henderson
had Down syndrome, Sasser acted to undermine Henderson’s employment application
with Sovereign. Although Plaintiff and Henderson called Sasser several times to
coordinate an appointment for Henderson to submit her fingerprints, Sasser never
returned their calls, in an apparent attempt to dodge the obligation. In fact, Sasser’s
receptionist advised Henderson the first time she called that Sasser was out for the day;
however, when Plaintiff called moments later, the same receptionist stated that Sasser
was in the office, but on another phone call. From these facts, a rational jury could find

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that Sasser held a discriminatory animus toward Henderson due to her disability and that
this animus served as Sovereign’s true reason for not hiring Henderson.
Additionally, after receiving notice of Henderson’s EEOC charge of discrimination,
Sasser called Gordon to relay that Sovereign was interested in hiring Henderson for
another position. However, given the circumstances of the situation and the obvious
potential for litigation, a rational jury could conclude that Sasser’s offer was nothing more
than an empty gesture fabricated to rebut any accusations of discrimination. Accordingly,
the Court finds that sufficient evidence in the record exists for Plaintiff to prove to the jury
that Sovereign’s proffered non-discriminatory reason for not hiring Henderson was
actually a pretext to engage in discrimination.
As a final matter, Sovereign’s argument that it cannot be held liable for Sasser’s
conduct is unavailing. Sovereign maintains that Sasser had no authority regarding
whether Henderson would be hired and that, as a result, Sasser’s conduct cannot serve
as a basis to impose liability on Sovereign. In support, Sovereign relies on West’s
affidavit, wherein he states that “Sasser was not authorized to hire anyone on behalf
of the company and was not the person in charge of, or responsible for, filling the
dietary aide position.” (West Aff. ¶ 13). “Sasser merely processed new hire paperwork.”
(Id. ¶ 13).
However, even if a biased employee is not the final decision-maker, a plaintiff can
establish that the employee’s conduct is attributable to the employer by proving that the
employee acted on behalf of the employer and influenced or was involved in the
employer’s decision or decision-making process. See Staub v. Proctor Hosp., 562 U.S.
411, 422 (2011). Based on the record evidence in this case, it appears that Sasser acted

15

on Sovereign’s behalf during the hiring process and played a pivotal role in Sovereign’s
decision not to hire Henderson. Before learning that Henderson was disabled, Sasser
conducted a preliminary background check on Henderson and called Henderson to set
up a fingerprinting appointment. However, upon learning that Henderson was disabled,
Sasser called Quest to “check references,” and she expressed concern about having a
job coach at Tuskawilla Nursing to accommodate Henderson. Further, if Plaintiff’s
version of the facts is believed, Sasser deliberately refused to complete Henderson’s
background check even after West told her that Sovereign should hire Henderson if she
was qualified for the position. As a result, a genuine factual dispute remains as to
whether Sovereign can be held liable for Sasser’s conduct.
CONCLUSION
For the aforementioned reasons, it is ORDERED AND ADJUDGED that
Defendant’s Motion for Summary Judgment (Doc. 21) is DENIED.
DONE AND ORDERED in Chambers in Orlando, Florida, on April 17, 2017

Copies furnished to:
Counsel of Record

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