SMITH v BELLSOUTH TELECOMMUNICATIONS INC

Filing 45

ORDER GRANTING 30 DEFENDANT'S SUMMARY JUDGMENT. The Clerk shall enter judgment in favor of Defendant stating, "All claims against Defendant are dismissed with prejudice." Signed by JUDGE MARK E WALKER on 2/6/2014. (dlt)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
ANTHONY SMITH,
Plaintiff,
v.

CASE NO. 3:12-cv-581-MW/CJK

BELLSOUTH
TELECOMMUNICATIONS, INC.,
a/k/a AT&T,
Defendant.
_______________________________/
ORDER GRANTING SUMMARY JUDGMENT
This case involves a claim for retaliation under the Family Medical Leave
Act (“FMLA”). Plaintiff alleges that he was terminated by Defendant for
exercising his right to take leave under the FMLA. Defendant responds that
Plaintiff was terminated for his accrual of unexcused absences in the four months
after he exhausted his FMLA leave.
Defendant moved for summary judgment on December 19, 2013. ECF No.
30. Plaintiff did not file a timely response. On January 14, 2014, Defendant
requested an expedited hearing on its motion noting that Plaintiff had not
responded to its motion. This Court conducted a telephonic hearing on January 15,
2014, and granted Plaintiff’s ore tenus motion to file a response on or before

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January 20, 2014. ECF No. 35.1 On January 20, 2014, Plaintiff filed an affidavit
which was not properly sworn, ECF No. 37, and Defendant objects to this Court’s
consideration of the affidavit. ECF No. 42. Beyond his own “affidavit,” Plaintiff
has filed nothing in opposition to Defendant’s motion for summary judgment.
At the outset, it is important to recognize that this Court cannot enter
summary judgment “on the mere fact that the motion was unopposed, but, rather
must consider the merits of the motion.” United States v. One Piece of Real
Property, 363 F.3d 1099, 1101 (11th Cir. 2004).2 As for the affidavit, this Court
need not be detained by Defendant’s objection. This is so because the affidavit
merely restates, albeit in more detail, facts already placed in the record by
Defendant in the form of deposition excerpts taken from the Plaintiff’s own
deposition. ECF Nos. 31-1; 42-1. The nub of the affidavit is that Defendant,
through its management, expressed hostility towards FMLA leave generally and
towards Plaintiff specifically for taking FMLA leave.3 Defendant itself, in support
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This Court has provided Plaintiff every opportunity to make a record. As the docket
reflects, this Court extended deadlines so that Plaintiff could both respond to discovery and take
his own discovery. ECF Nos. 19; 28.
2

In so stating, this Court understands that it “need not sua sponte review all of the
evidentiary materials on file . . . but must ensure that the motion itself is supported by evidentiary
materials.” United States v. One Piece of Real Property, 363 F.3d 1099, 1101 (11th Cir. 2004).
In any event, this Court has reviewed all the evidentiary materials on file.
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It is no answer that the derogatory statements about FMLA and Plaintiff are hearsay.
While inadmissible hearsay cannot be considered, it is well-settled that “‘a district court may
consider a hearsay statement in passing on a motion for summary judgment if the statement
could be reduced to admissible evidence at trial or reduced to admissible form.’” Macuba v.

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of its motion for summary judgment and, incredibly, in support of its objection to
Plaintiff’s affidavit, filed excerpts of Plaintiff’s deposition wherein he made
exactly the same assertions. Moreover, it is undisputed that there was “friction”
between the parties related to FMLA leave. In 2010, Plaintiff sued Defendant for
FMLA retaliation as evidenced by his prior complaint which was also filed by
Defendant in support of its motion for summary judgment. ECF No. 31-2.4 In
short, the defects of the affidavit are of no consequence inasmuch as the same
evidence is before this Court in another form.
Having outlined the procedural posture of this case, this Court turns to the
merits of the motion. As a threshold matter, this Court must determine the
appropriate analytical framework to be applied in a FMLA retaliation case.
Where, as here, there is evidence of permissible and impermissible reasons for an
employee’s termination, sometimes referred to as “mixed-motive”, claims must be
Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999). Here, Plaintiff could call Ms. Pittman and Ms.
Neff as witnesses at trial and inquire as to their statements. A number of the statements are not
being offered for the truth of the matter asserted but to demonstrate Defendant’s hostility towards
FMLA leave inasmuch as management permitted its employees to disparage employees taking
FMLA leave. As for the statement attributed to an unidentified “VP,” such a statement is not
being offered to prove the VP made the statement but to show the state of mind of Plaintiff’s
supervisor, Ms. Pittman, when she disciplined Plaintiff for his absences. In short, there are a
myriad of ways such “hearsay” could be reduced to admissible form.
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Defendant’s res judicata argument is a red-herring. This case involves a totally different
claim, his termination, which arose after the prior claim was resolved. To the extent that
Defendant suggests the facts underlying the prior lawsuit are inadmissible, Defendant misses the
mark. “Res judicata is not a doctrine limiting evidence, but a rule preventing a claim tried in one
suit from being relitigated in a second suit.” Shades Ridge Holding Co., Inc. v. United States,
888 F.2d 725729 (11th Cir. 1989).

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analyzed under the mixed-motive framework. See Richardson v. Monitronics
Intern., Inc., 434 F.3d 327, 333 (5th Cir. 2005).
The mixed-motive framework can be explained as follows:
(1) the employee must make a prima facie case of discrimination; (2)
the employer must articulate a legitimate, non-discriminatory reason
for the adverse employment action; and (3) the employee must offer
sufficient evidence to create a genuine issue of fact either that (a) the
employer’s proffered reason is a pretext for discrimination, or . . . (b)
that the employer’s reason, although true, is but one of the reasons for
its conduct, another of which was discrimination. If the employee
provides that discrimination was a motivating factor in the
employment decision, the burden again shifts to the employer, this
time to prove that it would have taken the same action despite the
discriminatory animus. The employer’s final burden is effectively
that of proving an affirmative defense.
Id. (internal quotation and citation omitted).5
Accepting the evidence in the light most favorable to the nonmovant, as this
Court must, Plaintiff has established a prima facie case of discrimination.
Proceeding to the next step, Defendant has shown a legitimate, non-discriminatory
reason for Plaintiff’s termination; namely, Plaintiff’s unexcused absences. The
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This Court recognizes that Richardson preceded the Supreme Court’s opinions in Gross
v. FBL Fin. Serv., Inc., 557 U.S. 167 (2009) (recognizing “but for” causation for claims brought
under the ADEA) and Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013) (recognizing
“but for” causation for retaliation claims under Title VII). However, courts considering FLMA
retaliation cases subsequent to Gross and Nassar have continued to apply the mixed-motive
framework. See Ion v. Chevron USA, Inc., 731 F.3d 379 (5th Cir. 2013); Goezler v. Sheboygan
Cnty., 604 F.3d 987 (7th Cir. 2010); Hunter v. Valley View Local Sch., 579 F.3d 688 (6th Cir.
2009); Johnson v. Benton Cnty. Sch. Dist., 926 F. Supp. 2d 899 (W.D. Miss. 2013). Inasmuch as
this Court grants summary judgment under the more plaintiff-friendly mixed-motive framework,
this Court would, by definition, grant summary judgment under the more stringent causation
requirement under Gross and Nassar. Accordingly, this Court need not determine whether
Gross and Nassar impact the analysis of FMLA retaliation claims.

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uncontroverted evidence shows that Plaintiff exhausted his FLMA leave in May
2011; that Defendant does not have “sick days”; that Plaintiff accrued more than
40 unexcused absences between his exhaustion of FMLA leave in May and his
termination on October 5 (not including his absences from July 12 through August
10 for short term disability); and that Defendant applied its four step disciplinary
policy to Plaintiff culminating in Plaintiff’s termination.
Plaintiff’s prima facie case having been rebutted, the burden is shifted to
Plaintiff to show that discrimination against him for having used FMLA leave was
a motivating factor to his termination in addition to his unexcused absences. The
evidence of negative remarks made by Defendant’s management with regard to
employees using FLMA leave satisfies this burden.
Now, the burden is shifted back to Defendant to show by a preponderance of
the evidence that Plaintiff would have been terminated for his unexcused absences
regardless of his use of FMLA leave. Defendant has satisfied this burden.
Specifically, after Plaintiff exhausted his FMLA leave on May 26, his absences
continued, and Defendant issued Plaintiff a “letter of counseling” for unsatisfactory
attendance dated June 7, 2011. Plaintiff was advised “that he needs to improve
attendance and maintain it at a satisfactory level.” However, Plaintiff’s absences
continued, and Defendant next issued Plaintiff a “letter of warning” for
unsatisfactory attendance dated July 1, 2011. Plaintiff was advised “that if
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substantial improvement is not made, more severe disciplinary action could be
taken, including suspension or discharge.” Again though, Plaintiff’s absences
continued, and Defendant issued Plaintiff a “letter in lieu of suspension” for
unsatisfactory attendance dated August 12, 2011. Plaintiff was advised “that
unless improvement in his attendance to a satisfactory level is made and sustained
over a reasonable period of time, further disciplinary action could be taken
including termination.” Despite the letters of counseling, warning, and in lieu of
suspension, Plaintiff’s absences continued, and finally Defendant issued Plaintiff a
“letter of termination” for unsatisfactory attendance dated and effective October 5,
2011.
Notably, this is not a situation where Defendant reacted unreasonably harsh
to a few sporadic, unexcused absences by Plaintiff following his use of FMLA
leave. That would be a different case. Instead, the uncontroverted evidence shows
that after exhausting his FMLA leave that Plaintiff was absent well over 40 times
in slightly over four months (not including the additional three plus weeks Plaintiff
was absent for short term disability which if included would total over 60 absences
during the same period). In the month of September alone and immediately prior
to Plaintiff’s termination, Plaintiff was absent 18 times and again three more times
in October before he was terminated on October 5, 2011.

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Under these uncontroverted facts, this Court finds that Defendant has carried
its burden of proving that it would have fired Plaintiff irrespective of any
retaliatory motive and no reasonable jury could find otherwise.
For these reasons,
IT IS ORDERED:
Defendant’s motion for summary judgment, ECF No. 30, is GRANTED.
The Clerk shall enter judgment in favor of Defendant stating, “All claims against
Defendant are dismissed with prejudice.” The clerk shall close the file.
SO ORDERED on February 6, 2014.
s/Mark E. Walker
United States District Judge

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