Jones v. Gulf Coast Health Care of Delaware, LLC
Filing
31
ORDER granting 20 Defendant's Motion for Summary Judgment. The Clerk is directed to enter judgment in favor of Defendant and to close the case. Signed by Judge Susan C Bucklew on 2/18/2016. (ALK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RODNEY JONES,
Plaintiff,
Case No.: 8:15-cv-702-T-24EAJ
vs.
GULF COAST HEALTH CARE OF
DELAWARE, LLC d/b/a ACCENTIA
HEALTH AND REHABILITATION
CENTER OF TAMPA BAY,
Defendant.
__________________________/
ORDER
This matter comes before the Court on Defendant Gulf Coast Health Care of Delaware,
LLC d/b/a Accentia Health and Rehabilitation Center of Tampa Bay’s (“Accentia Health”) Motion
for Summary Judgment (Dkt. 20), to which Plaintiff Rodney Jones has filed a response in
opposition (Dkt. 27). For the reasons stated herein, the motion is granted.
I.
STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The Court must draw all inferences from the evidence in the light most favorable to the
non-movant and resolve all reasonable doubts in that party's favor. See Porter v. Ray, 461 F.3d
1315, 1320 (11th Cir. 2006) (citation omitted). 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. See id. (citation omitted). When a moving party has discharged
its burden, the non-moving party must then go beyond the pleadings, and by its own affidavits, or
by depositions, answers to interrogatories, and admissions on file, designate specific facts showing
there is a genuine issue for trial. See id. (citation omitted).
II.
BACKGROUND
Plaintiff Rodney Jones went to work for Defendant Accentia Health on April 26, 2004 as
an activity director. Accentia Health is a skilled nursing facility that provides long term care. In
his position as activities director, Plaintiff oversaw five assistant activity directors, decorated the
building for holidays and events, maintained calendars, charts and care plans, and oversaw outings,
parties and recreation for Accentia Health’s patients. Plaintiff also headed Accentia Health’s
volunteer program.
In August 2014, Plaintiff had an MRI performed on his right shoulder. It was determined
that he needed surgery, and it was scheduled for September 26, 2014. Plaintiff applied for and
was granted leave under the Family Medical Leave Act (“FMLA”) for his surgery and
rehabilitation, which began on September 26, 2014 and continued until December 18, 2014,
meaning Plaintiff was to return to work from FMLA leave on December 19, 2014. On December
18, 2014, Plaintiff’s doctor reported that Plaintiff would not be able to return to work on December
19, 2014 because he needed additional shoulder therapy.
Accentia Health required that Plaintiff provide a Fitness for Duty Certificate in order to be
allowed to return to work. Plaintiff asked Donnie Daniels (Accentia Health’s Administrator) if he
could return to work on light duty despite not having the certificate. Because Plaintiff could not
provide a Fitness for Duty Certificate on December 19, 2014, he did not to return work and Donnie
Daniels permitted Plaintiff to take an additional 30 days of non-FMLA medical leave to complete
his physical therapy. Plaintiff’s new return date was set for January 18, 2015. Daniels confirmed
this extended 30 day non-FMLA leave in a December 19, 2014 letter to Plaintiff.
2
Plaintiff twice visited Busch Gardens theme park in Tampa, Florida while he was on FMLA
leave and he posted pictures of holiday decorations at Busch Gardens on his Facebook page.
Plaintiff may have also texted some of these Busch Gardens pictures to his co-workers as ideas for
holiday decorations at Accentia Health. During Plaintiff’s 30 day non-FMLA medical leave, he
visited the island of St. Martin for approximately three days. Plaintiff posted pictures and updates
about his time in St. Martin on his Facebook page, including a picture on the beach, posing by a
boat wreck, and a picture of Plaintiff wading/swimming in the ocean. At some point before the
exhaustion of Plaintiff’s 30 day non-FMLA medical leave, management at Accentia Health learned
that Plaintiff was posting pictures and updates of his St. Martin trip while on medical leave.
In January 2015, Plaintiff’s doctor completed an FMLA fitness for duty certification stating
that Plaintiff could return to work on January 19, 2015. Plaintiff returned to work on that day and
met with Daniels. Plaintiff presented the fitness for duty certification to Daniels. Daniels showed
Plaintiff the Facebook pictures he posted of his trip to St. Martin and the pictures taken at Busch
Gardens and told Plaintiff that he was suspended from employment pending an investigation.
Plaintiff was allowed the opportunity to provide additional facts, but Plaintiff did not do so.
Daniels subsequently terminated Plaintiff on January 23, 2015. Daniels testified that he terminated
Plaintiff due to the poor judgment Plaintiff exhibited as a supervisor and the negative impact that
his Facebook posts and text messages had among the associates as Accentia Health. Daniels
contended that this was the type of behavior prohibited by Accentia Health’s Social Media Policy,
which Plaintiff signed and acknowledged on January 31, 2014.1 Accentia Health’s Director of
HR, Dana Wood, also testified that Plaintiff’s behavior violated the Social Media Policy. Plaintiff
1
The Social Media Policy provides that “I understand that Social Media usage that adversely affects job
performance of fellow associates, residents, family members, people who work on behalf of Gulf Coast
Health Care or violates the HIPPA privacy law may result in disciplinary action up to and including
termination.” Dkt. 19-2 at 131.
3
states that Daniels did not specifically cite a violation of the Social Media Policy as the reason for
his suspension and termination. Instead, in a declaration, Plaintiff stated that “Mr. Daniels told
me that corporate believed I was abusing my FMLA leave” and that “I was suspended due to a
misuse of my FMLA leave, based on my Facebook pictures.” Dkt. 27-2 ¶ 32. Daniels denied
telling Plaintiff that corporate said Plaintiff was abusing his FMLA leave and denied telling
Plaintiff that he was suspended due to his misuse of FMLA. Dkt. 19-3 at 69-70.
In his Complaint, Plaintiff also contended that two other Accentia Health employees were
permitted to return to work “despite wearing medical devices.” This allegation is relevant to
Plaintiff’s FMLA interference claim, and the Court previously denied Accentia Health’s motion
for partial judgment on the pleadings on the FMLA interference claim. The Court denied the
motion based on Plaintiff’s assertion he could prove through discovery that Accentia Health did
not uniformly apply its fitness for duty certification policy to similarly situated employees
returning from FMLA leave. Dkt. 16. Plaintiff did not identify the two individuals who wore
medical devices in his Complaint. In the motion for summary judgment, Accentia Heath discusses
employees Kasey O’Leary and Faith Turner and Plaintiff’s response acknowledges that those are
the two employees referred to in the Complaint. The Heath Administrator for Accentia Health,
Kasey O’Leary, testified that she was out for a month on FMLA leave and was “fully released”
upon her return. Although she was permitted to wear regular shoes upon her return, she wore a
special shoe so that the area where she had a skin graft could fit into the shoe. Dkt. 27-1 at 18.
O’Leary also testified that Faith Turner, Admissions Assistant at Accentia Health, returned to work
wearing a boot on her foot. Turner produced a fitness for duty certificate upon her return from
FMLA leave. Id. at 23-25. In her position as admissions assistant, Turner sat at her desk most of
the day and also gave tours of the facility. Id.
4
Daniels testified that Accentia Health required associates returning from FMLA leave to
produce a fitness for duty certification in order to return, as this was a policy of Accentia Health’s.
Dkt. 19-3 at 73, 74. In fact, Daniels agreed that while he was an administrator at Accentia Health,
every associate (not just Plaintiff) returning from FMLA leave was required to produce a fitness
for duty certificate. Id. at 73. As for the two other employees that wore “medical devices” upon
their return from FMLA leave, Plaintiff testified that he did not know whether they were required
to produce fitness for duty certificates or not. Dkt. 19-2 at 97-99.
III.
MOTION FOR SUMMARY JUDGMENT
The FMLA gives employees the right to twelve weeks of unpaid leave due to a serious
health condition that makes the employee unable to work. 29 U.S.C. § 2612(a)(1). An employer
must not “interfere with, restrain, or deny [an employee’s] exercise of or [his] attempt to exercise”
FMLA rights. 29 U.S.C. § 2615(a)(1).
There are two types of FMLA claims: (1) interference claims, where an employer denies
or otherwise interferes with substantive rights under the FMLA; and (2) retaliation claims, where
an employer retaliates against an employee for engaging in activity protected by the FMLA.
Penaloza v. Target Corp., 549 F. App’x 844, 847 (11th Cir. 2013). Plaintiff brings both claims in
his Complaint. The Court will address each claim.
A.
FMLA Interference
An employee claiming interference must show he was entitled to a benefit that he was
denied. Id. (citing Strickland v. Water Works & Sewer Bd., 239 F.3d 1199, 1206–07 (11th Cir.
2001)).
The FMLA does not require that employers provide more leave than the FMLA's 12–week
entitlement. Penaloza, 549 F. App’x at 847. While employers may choose to give their employees
5
more leave time than the FMLA mandates, the Eleventh Circuit has found “[t]he statute does not
suggest that the 12 week entitlement may be extended.” McGregor v. Autozone, Inc., 180 F.3d
1305, 1308 (11th Cir. 1999). “As long as the employee has been given the requisite leave period,
the statute does not forbid an employer from discharging an employee who fails to come back to
work at the expiration of the leave. An employee’s insistence on taking more leave than is allowed
by the FMLA is not protected conduct.” Armburst v. SA-ENC Operator Holdings, LLC, No. 2-14cv-55-Ftm-38CM, 2015 WL 3465760, at *5 (M.D. Fla. June 1, 2015).
An employee who takes FMLA leave is entitled “to be restored by the employer to the
position of employment held by the employee when the leave commenced” “or [restored] to an
equivalent position.” Diaz v. Transatlantic Bank, 367 F. App’x 93, 95 (11th Cir. 2010) (quoting
29 U.S.C. § 2614(a)(1)(A)). “As a condition of restoration ..., the employer may have a uniformly
applied practice or policy that requires each such employee to receive certification from the health
care provider of the employee that the employee is able to resume work.” 29 U.S.C. § 2614(a)(4).
The “fitness-for-duty certification” is further discussed in 29 C.F.R. § 825.312, which provides:
As a condition of restoring an employee whose FMLA leave was
occasioned by the employee’s own serious health condition that
made the employee unable to perform the employee’s job, an
employer may have a uniformly-applied policy or practice that
requires all similarly-situated employees (i.e., same occupation,
same serious health condition) who take leave for such conditions
to obtain and present certification from the employee's health care
provider that the employee is able to resume work.
29 C.F.R. § 825.312(a).
It is not disputed that Plaintiff’s FMLA leave began on September 26, 2014 and expired
on December 18, 2014. Plaintiff did not return to work on December 19, 2014. By failing to
return to work, Plaintiff forfeited his right to be reinstated under the FMLA. Because Plaintiff was
given the requisite twelve week leave, the FMLA did not forbid Defendant from discharging
6
Plaintiff after he failed to return to work at the expiration of the twelve week period. See Armburst,
2015 WL 3465760, at *5.
The Court previously noted that Plaintiff contended that Accentia Health interfered with
his right to return to work on December 19, 2104 by requiring that Plaintiff produce an FMLA
fitness for duty certification in order to return from FMLA leave while Accentia Health permitted
two other employees to return to work wearing medical devices. Plaintiff did not assert whether
the other employees were required to produce fitness for duty certifications, and whether such
employees were similarly situated, i.e., same job and same medical condition. The Court permitted
Plaintiff’s interference claim to proceed as Plaintiff may have been able to prove as much through
discovery. Plaintiff has failed to do so. Plaintiff failed to show that the employees were similarly
situated: Plaintiff had shoulder surgery while the other two employees took leave for problems
with their feet. The facts undisputedly show that Accentia Health applied a uniform policy for its
employees returning from FMLA leave in that all employees were required to produce a fitness
for duty certification. The two other employees Plaintiff asserts returned to work wearing medical
devices obtained fitness for duty certifications before returning.
Because Plaintiff has failed to establish a prima facie case of FMLA interference, there is
no genuine issue to preclude summary judgment on Plaintiff’s FMLA interference claim. Accentia
Health is entitled to summary judgment on this claim.
B.
FMLA Retaliation
In order to establish a claim of retaliation, an employee must prove that: (1) he engaged in
a statutorily protected activity; (2) he suffered an adverse employment decision; and (3) the
decision was causally related to the protected activity. Strickland v. Water Works & Sewer Bd. of
City of Birmingham, 239 F.3d 1199, 1207 (11th Cir. 2001).
7
“In other words, [unlike an
interference claim,] a plaintiff bringing a retaliation claim faces the increased burden of showing
that his employer’s actions were motivated by an impermissible retaliatory or discriminatory
animus.” Id. (internal quotation omitted).
If the employee establishes a prima facie case of retaliation, the burden shifts to the
employer “to articulate a legitimate reason for the adverse action.” Martin v. Brevard Cty. Pub.
Sch., 543 F.3d 1261, 1268 (11th Cir. 2008) (quoting Hurlbert v. St. Mary’s Health Care Sys., Inc.,
439 F.3d 1286, 1297 (11th Cir. 2006)). If the employer does so, the 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.” Id. (internal quotation omitted).
Plaintiff here alleges that Accentia Health retaliated against him for taking FMLA leave by
terminating his employment upon his return from non-FMLA medical leave. It is not disputed that
the first two prongs of a prima facie retaliation claim are satisfied: (1) Plaintiff engaged in a
statutorily protected activity by taking FMLA leave, and (2) he suffered an adverse employment
decision when he was terminated. Accentia Health contends that Plaintiff’s claim fails because he
does not establish the third prong of causation. To prove a causal connection, the Eleventh Circuit
requires a plaintiff only demonstrate that “the protected activity and the adverse action were not
wholly unrelated.” Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999)
(internal citations omitted). A plaintiff satisfies this element if he provides sufficient evidence that
the decision-maker became aware of the protected conduct, and that there was close temporal
proximity between this awareness and the adverse employment action. Id. “Close temporal
proximity between protected conduct and an adverse employment action is generally sufficient
circumstantial evidence to create a genuine issue of material fact of a causal connection.” Hurlbert
8
v. St. Mary’s Health Care System, Inc., 439 F. 3d 1286, 1298 (11th Cir. 2006) (internal citation
omitted). “[M]ere temporal proximity, without more, must be ‘very close.’” Thomas v. Cooper
Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (quoting Clark County Sch. Dist. v. Breeden,
532 U.S. 268, 273 (2001)). “A three to four month disparity between the statutorily protected
expression and the adverse employment action is not enough.” Id. (citing cases in support).
Plaintiff argues that the temporal proximity between the end of Plaintiff’s FMLA leave
(December 19, 2014) and the dates of his suspension and termination (January 19, 2015 and
January 23, 2015) support causation. Accentia Health frames the issue of temporal proximity as
evaluated between the dates of the beginning of Plaintiff’s FMLA leave (September 26, 2014) and
the date of his termination (January 23, 2015) – a four month period. Accentia Health is correct
that the Eleventh Circuit measures temporal proximity in FMLA cases by comparing the date the
leave began with the date of termination. See, e.g., Penaloza v. Target Corp., 549 Fed. Appx. 844,
848 (11th Cir. 2013) (finding no causal connection in retaliation claim where plaintiff was
terminated two weeks after her return from FMLA leave because the time period between her
request for leave and termination was over three months and insufficient in itself to establish
causation). Here, Plaintiff’s request for FMLA leave was at least four months before he was
terminated. Thus, without more, this is insufficient to support causation.
The Court may look to other factors, if present, that would support causation. See Thomas,
506 F.3d at 1364 (stating that in the absence of other evidence tending to show causation, if there
is a substantial delay between the protected expression and the adverse action, the complaint of
retaliation fails as a matter of law). In further support of causation, Plaintiff points to the fact that
Daniels told Plaintiff upon his return from leave that he was suspended because corporate said
Plaintiff was abusing his FMLA leave. Plaintiff does not show that he was fired for exercising his
9
right to take FMLA leave. Plaintiff’s actions while on FMLA leave and on non-FMLA led to his
termination. There is no evidence that Plaintiff was retaliated against for requesting and taking
FMLA leave. An employer “may terminate an employee for a good or bad reason without
violating federal law. [Courts] are not in the business of adjudging whether employment decisions
are prudent or fair.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir.
1999). Plaintiff has failed to show causation and his FMLA retaliation claim fails as a matter of
law. Because Plaintiff has not established a prima facie case of retaliation, the analysis ends and
Accentia Health is entitled to summary judgment on the FMLA retaliation claim.
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s Motion for Summary
Judgment.
The Clerk is directed to enter judgment in favor of Defendant Accentia Health and to close
the case.
DONE AND ORDERED at Tampa, Florida, this 18th day of February, 2016.
Copies furnished to:
Counsel of Record
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?