King v. McIntosh Sawran & Cartaya, P.A.

Filing 179

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT. Plaintiff's 112 Motion for Partial Summary Judgment and Defendant's 113 Motion for Summary Judgment are both DENIED. Signed by Judge Marcia G. Cooke on 11/27/2018. See attached document for full details. (smz)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 18-60286-Civ-COOKE/HUNT
KATHLEEN O. KING,
Plaintiff,
vs.
MCINTOSH SAWRAN &
CARTAYA, P.A.,
Defendant.
___________________________/
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
THIS MATTER is before me on Plaintiff’s Motion for Partial Summary Judgment
(ECF No. 112) and Defendant’s Motion for Summary Judgment (ECF No. 113). Both
Motions are fully briefed and ripe for review. For the reasons set forth herein, both Motions
are denied in their entirety.
I. BACKGROUND
Plaintiff Kathleen O. King brings this action against Defendant McIntosh Sawran &
Cartaya, P.A., under the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601–2654
(“FMLA” or “the Act”). Plaintiff, an attorney and former employee of Defendant, took
leave from the firm in December 2017 in order to care for her ailing father. Pl.’s Mot. for
Summ. J., ECF No. 112, at p. 1. Plaintiff alleges that Defendant violated her FMLA rights by
requiring her to continue working, and then by firing her, while she was on leave. Id.
Defendant responds that Plaintiff was “provided with all of the leave she asked for.” Def.’s
Mot. for Summ. J., ECF No. 113, at p. 6. Defendant argues that it fired Plaintiff not because
she went on leave, but because the firm had lost its biggest client. Id. It claims that the loss of
the client necessitated cuts in the firm’s payroll and, at the same time, eliminated much of
Plaintiff’s workload. Id. Defendant also appears to blame Plaintiff for losing the client, based
on a distasteful comment she purportedly made in a meeting with the client some months
before its departure. Id. at p. 2, 9.

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Plaintiff moves for summary judgment on count one of the Complaint, which alleges
interference with her FMLA rights. Pl.’s Mot. for Summ. J., ECF No. 112, at p. 9. Plaintiff
also asks for summary judgment on what she characterizes as “Defendant’s First, Second
and Third Affirmative Defenses,” which are listed in Defendant’s Answer to the Complaint.
Id. at p. 12. Defendant, meanwhile, moves for summary judgment against Plaintiff on both
counts of the Complaint—Plaintiff’s interference claim as well as her retaliation claim. Def.’s
Mot. for Summ. J., ECF No. 113, at p. 1.
II. LEGAL STANDARDS
A. Summary Judgment
“A party may move for summary judgment, identifying each claim or defense—or the
part of each claim or defense—on which summary judgment is sought.” Fed. R. Civ. P.
56(a). “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.” Id. In reviewing a motion for summary judgment, the Court is “required to view the
evidence and all factual inferences therefrom in the light most favorable to the non-moving
party, and resolve all reasonable doubts about the facts in favor of the non-movant.” Feliciano
v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013) (quoting Skop v. City of Atlanta,
485 F.3d 1130, 1143 (11th Cir. 2007)). Importantly, “at the summary judgment stage the
judge’s function is not himself [or herself] to weigh the evidence and determine the truth of
the matter,” but only “to determine whether there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
B. The Family and Medical Leave Act
“[T]he FMLA entitles eligible employees to take up to twelve weeks of leave in one
year for various specified reasons, including the ‘serious health condition’ of the employee’s
parent.” Diamond v. Hospice of Fla. Keys, Inc., 677 F. App’x 586, 592 (11th Cir. 2017) (quoting
29 U.S.C. § 2612(a)(1)(C)). The FMLA prohibits employers both from interfering with
employees’ rights under the FMLA (interference claims) and from retaliating against
employees for exercising their rights under the FMLA (retaliation claims).” Diamond, 677 F.
App’x at 592 (citing Strickland v. Water Works & Sewer Bd. of City of Birmingham, 239 F.3d
1199, 1206 (11th Cir. 2001); 29 C.F.R. § 825.220(c)).

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C. FMLA Interference Claims
To prove interference with her FMLA rights, a plaintiff “must demonstrate only that
she was ‘denied a benefit to which [s]he was entitled under the FMLA.’” Schaaf v. Smithkline
Beecham Corp., 602 F.3d 1236, 241 (11th Cir. 2010) (quoting Martin v. Brevard Cty. Pub. Sch.,
543 F.3d 1261, 1266–67 (11th Cir. 2008)). “Benefits under the FMLA include both taking
leave and being reinstated following a leave period, subject to certain conditions.” Diamond,
677 F. App’x at 592. In determining whether an employee was denied such benefits, “[t]he
intent of the employer is not relevant.” Id. (citing Martin, 543 F.3d at 1267).
The right to take FMLA leave is not necessarily the right to be completely “left alone”
by one’s employer. Smith-Schrenk v. Genon Energy Servs., LLC, 2015 WL 150727, at *9 (S.D.
Tex. Jan. 12, 2015) (quoting O’Donnell v. Passport Health Commc’ns, Inc., 561 F. App’x 212,
218 (3d Cir. 2014)). On the other hand, “[t]he ability to take FMLA leave is not conditioned
upon the willingness of the employee to remain ‘on call’ to the employer.’” Smith-Schrenk,
2015 WL 150727, at *9 (quoting Sherman v. AI/FOCS, Inc., 113 F. Supp. 2d 65, 70–71 (D.
Mass. 2000)). “The general consensus among courts is that reasonable contact limited to
inquiries about the location of files or passing along institutional or status knowledge will not
interfere with an employee's FMLA rights; however, asking or requiring an employee to
perform work while on leave can constitute interference.” Smith-Schrenk, 2015 WL 150727,
at *9 (collecting cases).
Similarly, the right to reinstatement under the FMLA is “not absolute; rather, ‘an
employer can deny reinstatement if it can demonstrate that it would have discharged the
employee had [s]he not been on FMLA leave.’” Schaaf, 602 F.3d at 1241 (11th Cir. 2010)
(quoting Martin, 543 F.3d at 1267). “[I]f an employee is not reinstated, the employer bears
the burden of proving that the employee was discharged for independent reasons that were
unrelated to the employee’s leave.” Schaaf, 602 F.3d at 1241. Thus, while “[t]he employer’s
intent or motives are irrelevant to the [interference] analysis, . . . the plaintiff’s request must
have been the proximate cause of the termination.” Vira v. Crowley Liner Servs., Inc., 723 F.
App’x 888, 895 (11th Cir. 2018).
Finally, “[i]n addition to showing interference, a plaintiff must show that she has been
prejudiced by the FMLA violation in some way.” Diamond, 677 F. App’x at 592 (citing Evans
v. Books-a-Million, 762 F.3d 1288, 1296 (11th Cir. 2014)). “That means that a plaintiff must
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‘demonstrate some harm remediable by either “damages” or “equitable relief,”’ the two
distinct categories of remedies provided for by the FMLA.” Diamond, 677 F. App’x at 592
(quoting Evans, 762 F.3d at 1296).
D. Retaliation Claims
“To prove FMLA retaliation, the plaintiff must show that her employer intentionally
discriminated against her for having exercised an FMLA right.” Diamond, 677 F. App’x at
594. “In other words, the plaintiff must show that her ‘employer’s actions were motivated by
an impermissible retaliatory or discriminatory animus.’” Id. (quoting Martin, 543 F.3d at
1267–68). “An employee may prove an FMLA retaliation claim through either direct or
circumstantial evidence.” Diamond, 677 F. App’x at 594. “In the absence of direct evidence
of retaliation, [courts] apply the burden-shifting framework established in McDonnell Douglas
Corp. v. Green.” Id. at 595 (citing 411 U.S. 792 (1973)).
“Under the McDonnell Douglas framework, the plaintiff must first establish a prima
facie case of retaliation, which consists of three elements: (1) she engaged in a statutorily
protected activity; (2) she suffered an adverse employment decision, and (3) the decision was
causally related to the protected activity.” Diamond, 677 F. App’x at 595 (citing Martin, 543
F.3d at 1268). With respect to the third element, “at the prima facie stage, ‘[c]lose 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.’” Benz v. Crowley Mar. Corp., 732 F. App’x 794, 801 (11th Cir. 2018) (quoting
Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006)).
“If the plaintiff makes out her prima facie case, the burden shifts to the employer to
articulate a legitimate reason for the adverse action.” Diamond, 677 F. App’x at 595 (citing
Martin, 543 F.3d at 1268). “If the employer does so, the plaintiff must come forward with
evidence sufficient for a reasonable factfinder to conclude that the reasons given by the
employer were not the real reasons for the adverse action.” Diamond, 677 F. App’x at 595
(citing Hurlbert, 439 F.3d at 1297–98).

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III. DISCUSSION
A. Plaintiff’s Interference Claim Based on Work-Related Contacts
In count one of the Complaint, Plaintiff alleges that Defendant “interfered with [her]
exercise of her FMLA rights” by “disturb[ing]” her during her leave with numerous “workrelated questions or requests.” Compl., ECF No. 1, at ¶¶ 23, 32. These requests included an
“instruction . . . to draft exit memos for all cases related to” the firm’s recently lost client; a
request for “details related to an upcoming deposition”; and various “emails and telephone
calls . . . involving work-related matters.” Id. at ¶ 23.
The record here offers support to Plaintiff’s contention that “[t]he work culture at
Defendant’s law firm was one [in which] attorneys were expected to be available 24/7 no
matter the circumstance,” even if they were “out of the state caring for seriously ill family
members.” Pl.’s Resp. in Opp’n, ECF No. 142, at p. 5. Just two days into her FMLA-protected
leave, Plaintiff’s supervising partner wrote her an email demanding that she draft “EXIT
Memo[s]” on each of the cases she was assigned to for the lost client—cases that comprised
the bulk of Plaintiff’s portfolio. Pl.’s Ex. K, ECF No. 129-12, at p. 1.
The next day, the partner emailed his colleagues complaining that Plaintiff had not
responded. Pl.’s Ex. L, ECF No. 129-13, at p. 1. “I had to call [her] twice,” he wrote, “and
finally got a call back from her.” Id. The partner continued:
She said her father is doing better, but she will not be returning from VA until
Tuesday next week. I then asked her if she had her laptop with her so that she
could work remotely, and she said no, because she left in a hurry and forgot
it. I tried to impress upon her the urgency of having status memos done and
all reporting completed on the files assigned to her, to which she was not
entirely receptive.
Id.
Three days later, the same partner contacted Plaintiff again, asking, “Did you get my
earlier email re: EXIT MEMOs? When are you back in the office?” Pl.’s Ex. E, ECF No. 1296, at p. 2. Plaintiff promptly replied, explaining that she “needed to be [in Virginia] for [her]
father[’]s surgery today.” Id. at p. 3. Plaintiff also called into the office and “dictated a chart
to her assistant to enable her assistant to draft the exit memos that [the partner had]
repeatedly demanded.” Pl.’s Resp. in Opp’n, ECF No. 142, at p. 5.
Meanwhile, the partner forwarded Plaintiff’s email to his colleagues, commenting
that he “underst[ood] family emergencies” but Plaintiff was “not doing much legal work[.]”
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Pl.’s Ex. E, ECF No. 129-6, at p. 2. That same day, another staff member emailed Plaintiff
“remind[ing]” her that the firm also “need[ed]” her to complete a self-evaluation. Pl.’s Ex. F,
ECF No. 129-7, at p. 2. And the next day, Plaintiff’s supervising partner contacted her once
again about a deposition that had to be canceled, a circumstance that he evidently blamed on
her. Pl.’s Stmt. of Facts, ECF No. 129-1, at ¶ 44. All of this, incidentally, occurred after the
firm had already decided to fire Plaintiff. Id. at ¶ 50.
In light of the above facts, neither Party is entitled to summary judgment on this part
of Plaintiff’s claim. Defendant’s conduct in this case falls remarkably close to the dividing
line recognized by the “[t]he general consensus among courts.” Smith-Schrenk, 2015 WL
150727, at *9. On the one hand, viewed in the light most favorable to Defendant, its conduct
could be characterized as mere requests that Plaintiff “pass[] along institutional or status
knowledge,” or that she “provid[e] closure on completed assignments.” Id. Also consistent
with such a finding is the fact that Plaintiff apparently did little more, in the way of concrete
work, than “dictate[] a chart to her assistant to enable her assistant to draft the [requested]
exit memos.” Pl.’s Resp. in Opp’n, ECF No. 142, at p. 5; cf., e.g., Kesler v. Barris, Sott, Denn &
Driker, PLLC, 482 F. Supp. 2d 886, 910–12 (E.D. Mich. 2007) (rejecting attorney’s FMLA
interference claim where her law firm requested that she review documents and answer
“work-related questions” while on leave, but she did not ultimately “conduct any work”).
Moreover, given the ongoing crisis of the firm losing its, and Plaintiff’s, most important
client, Plaintiff’s need to “field[] occasional calls” about the crisis could be viewed simply as
“a professional courtesy.” Smith-Schrenk, 2015 WL 150727, at *9.
“On the other hand, . . . ‘[t]he ability to take FMLA leave is not conditioned upon the
willingness of the employee to remain ‘on call’ to the employer. Of the many prerequisites to
FMLA leave, the convenience of the employer is not one.’” Id. (quoting Sherman, 113 F.
Supp. 2d at 70–71). Here, the multiple emails and phone calls outlined above could be found
to be more than “de minimis contacts.” Smith-Schrenk, 2015 WL 150727, at *9 (quoting
O’Donnell, 561 F. App’x at 218). A reasonable jury could find that by “impress[ing] upon her
the urgency” of drafting “EXIT MEMOs” on all of the lost client’s cases—in other words,
the majority of Plaintiff’s caseload—Defendant was “essentially requiring Plaintiff to work
while on leave.” Smith-Schrenk, 2015 WL 150727, at *9 (quoting Sherman, 113 F. Supp. 2d at
70–71). Indeed, Plaintiff’s supervising partner said as much himself, stating that he had

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explicitly asked Plaintiff to “work remotely.” Pl.’s Ex. L, ECF No. 129-13, at p. 1. Finally, the
Court must reject those arguments in Defendant’s Motion that are based on Defendant’s
own interpretation of the record. See, e.g., Def.’s Mot. for Summ. J., ECF No. 113, at p. 6
(arguing that Plaintiff “demonstrated by her own actions that she worked remotely at her
own prompting, and read and answered emails without any apparent interference with her
leave to care for her father”). Such arguments form an improper basis for summary
judgment, which can only be granted after the Court “view[s] the evidence and all factual
inferences therefrom in the light most favorable to the non-moving party[.]” Feliciano, 707
F.3d at 1247 (quoting Skop, 485 F.3d at 1143).
In sum, neither Party has “show[n] 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). “If the
record presents factual issues, the court must not decide them; it must deny the motion and
proceed to trial.” Vira, 723 F. App’x at 892. The Parties’ respective motions for summary
judgment on this aspect of Plaintiff’s claim must both be denied.
B. Plaintiff’s Interference Claim Based on Failure to Reinstate
Plaintiff further alleges that Defendant interfered with her FMLA rights on the theory
that the firm did not “restore[ her] to her position following the end of her protected leave.”
Pl.’s Mot. for Summ. J., ECF No. 112, at p. 11. The Parties’ respective motions for summary
judgment on this point center around whether Defendant “would have terminated Plaintiff
even if she had not taken protected leave.” Pl.’s Resp. in Opp’n, ECF No. 142, at p. 11; see also
Def.’s Resp. in Opp’n, ECF No. 140, at p. 3 (“[T]he undisputed evidence shows that Defendant
would have laid off [Plaintiff] regardless of her taking leave.”). 1
Under the FMLA, “th[e] reinstatement right is not absolute; rather, ‘an employer can
deny reinstatement if it can demonstrate that it would have discharged the employee had
[s]he not been on FMLA leave.’” Schaaf, 602 F.3d at 1241 (quoting Martin, 543 F.3d at
1267). “[I]f an employee is not reinstated, the employer bears the burden of proving that the
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Defendant also appears to argue that Plaintiff was not fired at all during her leave, and that she
“was reinstated to her position when she returned.” Def.’s Mot. for Summ. J., ECF No. 113, at p. 6.
This argument is impossible to square with the record. On December 21, 2017, during Plaintiff’s
leave, her supervising partner “candidly told her” over the phone that she had no “future with the
firm.” Dep. of James Sawran, ECF No. 106, at p. 189–91. Plaintiff’s “official[]” last day at the firm
was December 29, just days after she returned. Id. at p. 261.

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employee was discharged for independent reasons that were unrelated to the employee’s
leave.” Schaaf, 602 F.3d at 1241; see also Vira, 723 F. App’x at 895 (“[T]he plaintiff’s request
must have been the proximate cause of the termination.”).
As set forth more fully below, Defendant’s reasons for terminating Plaintiff are hotly
contested here, and there is evidence in the record to support both Parties’ contentions. See
infra Part III(D). Neither Party has established whether, as a matter of law, Plaintiff’s FMLA
leave was the proximate cause of her termination, and both Parties’ motions for summary
judgment on this issue must therefore be denied.
C. Defendant’s “Affirmative Defenses”
Plaintiff also moves for summary judgment on what she characterizes as Defendant’s
“First, Second and Third Affirmative Defenses.” Pl.’s Mot. for Summ. J., ECF No. 112, at p.
12. Those defenses, listed in Defendant’s Answer, are: 1) that Plaintiff “fails to state a claim
upon which relief may be granted” because she “cannot demonstrate that Defendant
interfered with any rights under the Act or retaliated against her”; 2) that Plaintiff “fails to
state a claim upon which relief may be granted” because she “received any and all leave to
which she may have been entitled”; and 3) that Plaintiff “cannot demonstrate a causal
connection between any adverse employment action and any activity protected under the
FMLA.” Def.’s Answer & Affirmative Defenses, ECF No. 23, at p. 4.
Plaintiff’s request must be rejected. As an initial matter, notwithstanding the label of
Defendant’s filing, these are not affirmative defenses. “An affirmative defense raises matters
extraneous to the plaintiff’s prima facie case,” and “[t]he party asserting an affirmative
defense usually has the burden of proving it.” In re Rawson Food Serv., Inc., 846 F.2d 1343,
1349 (11th Cir. 1988) (internal quotation marks and citation omitted). By contrast, a defense
that merely “points out a defect in the plaintiff’s prima facie case,” or “negate[s] an element”
thereof, “is not an affirmative defense.” Id. Such a defense is “rather . . . a general defense
akin to a Fed.R.Civ.P. 12(b)(6) motion for failure to state a claim[.]” Id. at 1349 n.9. Here,
Defendant’s Answer explicitly asserted that the Complaint “fails to state a claim upon which
relief may be granted” because Plaintiff “cannot demonstrate” certain elements of her claim.
Def.’s Answer & Affirmative Defenses, ECF No. 23, at p. 4.
Furthermore, it is not even clear what Plaintiff is asking for. “Facial challenges to the
legal sufficiency of a claim . . . such as a motion to dismiss based on failure to state a claim
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for relief . . . always present[] a purely legal question; there are no issues of fact because the
allegations contained in the pleading are presumed to be true.” Chudasama v. Mazda Motor
Corp., 123 F.3d 1353, 1367 (11th Cir. 1997) (emphasis added). For obvious reasons, such
challenges hardly lend themselves to summary judgment analysis. See, e.g., Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (the “purpose of summary judgment
is to pierce the pleadings and to assess the proof in order to see whether there is a genuine
need for trial” (internal quotation marks and citation omitted)).
Another District Court, addressing a similar motion for summary judgment, summed
up the problem well. “In order to grant summary judgment regarding this defense, th[e]
Court would have to find that there is no genuine issue of material fact regarding whether or
not Plaintiff has properly alleged a viable civil claim.” Ogden v. Pub. Util. Dist. No. 2 of Grant
Cty., 2016 WL 589870, at *2 (E.D. Wash. Feb. 11, 2016). Moreover, “the Court does not see
what Plaintiff would gain if this Court granted the relief she requests”:
Defendant has not filed a separate 12(b)(6) motion to dismiss the case for a
failure to state a claim. For Plaintiff to prevail on any of her claims, she must
sufficiently establish the applicable elements, so striking Defendant’s assertion
that Plaintiff has failed to state a claim from its Answer would do nothing to
change the way this case progresses.
Id. at *3.
To the extent that Plaintiff seeks summary judgment in her favor on the substance of
her claims, or seeks to avoid summary judgment against her, the remainder of her briefing on
the Parties’ cross motions has amply served that purpose. To the extent, however, that
Plaintiff seeks summary judgment on the “purely legal” question of whether her Complaint
stated a claim, that request must be denied.
D. Plaintiff’s Retaliation Claim
Finally, Defendant moves for summary judgment against Plaintiff on count two of the
Complaint, which alleges FMLA retaliation. Def.’s Mot. for Summ. J., ECF No. 113, at p. 1.
In response, Plaintiff appears to concede that there is no direct evidence of discriminatory
intent in this case, and that the Court must therefore apply the McDonnell Douglas framework.
See, e.g., Pl.’s Resp. in Opp’n, ECF No. 142, at pp. 11–12 (arguing that Plaintiff “satisf[ied] her
prima facie case” and that “Defendant’s alleged non-retaliatory reason for her termination is
pretextual”). Meanwhile, Defendant appears to concede that Plaintiff has satisfied the first

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two elements of her prima facie case, arguing only that she has not established the third
element, causation. See Def.’s Mot. for Summ. J., ECF No. 113, at pp. 8–9. On that point,
however, Plaintiff is correct. Because Plaintiff “was fired while on leave, there is simply no
gap of time” between her FMLA-protected conduct and the adverse employment action. Pl.’s
Reply in Supp., ECF No. 148, at p. 7. As such, “the timing between the two events suggests a
causal relationship sufficient to establish a prima facie case of FMLA retaliation.” Vira, 723
F. App’x at 893; see also, e.g., Martin, 543 F.3d at 1268 (the fact that a plaintiff “was
terminated while on FMLA leave . . . is more than sufficient to create a genuine issue of
material fact of causal connection”).
Because Plaintiff has made out her prima facie case, the burden shifts to Defendant
“to articulate a legitimate reason” for her termination. Diamond, 677 F. App’x at 595 (citing
Martin, 543 F.3d at 1268). This “burden of rebuttal is exceedingly light,” and Defendant has
met it. Perryman v. Johnson Prod. Co., 698 F.2d 1138, 1142 (11th Cir. 1983); see also Reeves v.
Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142 (2000) (“This burden is one of production,
not persuasion; it can involve no credibility assessment.” (internal quotation marks and
citation omitted)). Specifically, Defendant states that “its decision to lay [Plaintiff] off” was
based on “the loss of a major client and resulting need to cut costs; the proportion of
[Plaintiff’s] work for that client and the lack of work to replace it; and [Plaintiff’s] role in the
loss of that client.” Def.’s Mot. for Summ. J., ECF No. 113, at p. 9.
Accordingly, “[t]he burden then shifts back” to Plaintiff to show that Defendant’s
“proffered reason was not its true reason”—in other words, “to demonstrate pretext.” Alvarez
v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010). On this point, the record
contains evidence in support of both Parties’ positions. For example, the record contains
some seemingly impartial, contemporaneous statements by the firm’s leadership, to the effect
that the loss of their biggest client required Defendant “to eliminate other positions as well,”
not only Plaintiff’s. Pl.’s Ex. C, ECF No. 129-4, at p. 1.
However, there is also evidence to support a finding of pretext. For one thing, the
timing of events—which, as noted, is as strong as it could be for Plaintiff—can itself be used
to demonstrate pretext. See, e.g., Martin, 543 F.3d at 1268 (in showing pretext, plaintiff “may
rely on evidence that [s]he already produced to establish h[er] prima facie case,” including
“the close temporal proximity” between her taking leave and being fired). But there is even
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more direct evidence than that in the record. For example, one day after Plaintiff went on
leave to care for her sick parent, her supervising partner commented that her absence “makes
our decision [to fire her] easy . . . . If she can’t find an hour to call in for a partners[’]
meeting, I don’t think we need her.” Pl.’s Ex. H, ECF No. 129-9, at p. 3. Both of the other
named partners at the firm replied in agreement. Id. at pp. 1–3. One of the partners even
“suggest[ed]” that they bolster the case for firing Plaintiff by “document[ing]” her personnel
file to reflect her alleged gaffe in the client meeting months earlier. Id. at pp. 1–3.
In short, there is evidence in the record to sustain a finding that Defendant’s proffered
reason for firing Plaintiff was not its “true reason.” Defendant’s motion for summary
judgment on count two of the Complaint must therefore be denied.
IV. CONCLUSION
For the reasons stated above, it is ORDERED and ADJUDGED that Plaintiff’s
Motion for Partial Summary Judgment (ECF No. 112) and Defendant’s Motion for
Summary Judgment (ECF No. 113) are both DENIED.
DONE and ORDERED in chambers, at Miami, Florida, this 27th day of November
2018.

Copies furnished to:
Patrick M. Hunt, U.S. Magistrate Judge
Counsel of record

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