GARY v. WARNER ROBINS GEORGIA
Filing
37
ORDER granting 21 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE TILMAN E SELF, III on 8/10/2018. (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
BARBARA GARY,
Plaintiff,
v.
CITY OF WARNER ROBINS,
GEORGIA,
Defendant.
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CIVIL ACTION
No. 5:16-CV-151 (TES)
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Barbara Gary brings this action against her former employer, the City of
Warner Robins, Georgia (“the City”), alleging the City discriminated and retaliated
against her based on her gender in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq. (“Title VII”); her disability in violation of the
Americans with Disabilities Act, as amended, 42 U.S.C. § 12101, et seq. (“ADA”); and her
age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.
(“ADEA”). Plaintiff also alleges the City failed to accommodate her disability in violation
of the ADA, and interfered with her rights and retaliated against her in violation of the
Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”). The City moves for
summary judgment on all claims. Having carefully considered the parties’ arguments,
the record, and applicable law, the Court finds no genuine issues of material fact exist as
to any claim and hereby GRANTS the City’s Motion [Doc. 21].
LEGAL STANDARD
Summary judgment is proper if the movant “shows that there is no genuine issue
as to any material fact and the movant is entitled to a judgment as a matter of law.”1 Not
all factual disputes render summary judgment inappropriate; only a genuine issue of
material fact will defeat a properly supported motion for summary judgment. 2 This
means that summary judgment may be granted if there is insufficient evidence for a
reasonable jury to return a verdict for the nonmoving party or, in other words, if
reasonable minds could not differ as to the verdict. 3
On summary judgment, the Court must view the evidence and all justifiable
inferences in the light most favorable to the nonmoving party; the Court may not make
credibility determinations or weigh the evidence. 4 The moving party “always bears the
initial responsibility of informing the court of the basis for its motion, and identifying
those portions of the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, which it believes demonstrate the absence of a
genuine issue of material fact” and that entitle it to a judgment as a matter of law. 5 If the
moving party discharges this burden, the burden then shifts to the nonmoving party to
Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
3 See id. at 249-52.
4 See id. at 254-55; Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir. 1992).
5 Celotex, 477 U.S. at 323 (internal quotation marks omitted).
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respond by setting forth specific evidence in the record and articulating the precise
manner in which that evidence creates a genuine issue of material fact or that the moving
party is not entitled to a judgment as a matter of law. 6 This evidence must consist of
more than mere conclusory allegations or legal conclusions. 7
BACKGROUND
Plaintiff Barbara Gary worked in the City’s Police Department (the “Department”)
for almost 10 years, from January 2005, until the City terminated her employment on
September 23, 2014. The City contends it lawfully terminated her due to multiple
violations of City and Departmental policies and rules related to tardiness, unexcused
absences, and misuse of leave. Plaintiff, however, contends the City unlawfully
terminated her, discriminated against her, failed to accommodate her, failed to inform
her of her FMLA rights, and retaliated against her because of her age (53), her gender, her
disability (vascular tension headaches), and her use of leave.
For purposes of this Motion, the material facts in the light most favorable to
Plaintiff, the non-movant, are as follows: 8
Plaintiff held several different positions while employed in the Department. Police
Chief Brett Evans originally hired Plaintiff on January 5, 2005, as a Clerk in the Records
See Fed. R. Civ. P. 56(e); see also Celotex, 477 U.S. at 324-26.
Avirgnan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991).
8 The City filed multiple objections to statements in Plaintiff’s declaration and asserted facts in her Statement
of Undisputed Material Facts. For purposes of summary judgment only, the Court will assume these
statements and asserted facts are admissible.
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Division. In April 2006, the City promoted Plaintiff to ID Clerk (a position the City later
upgraded to Administrative Secretary) in the Identification Criminalistics Division
(“ICD”), where she became certified in fingerprint analysis. Plaintiff held this position in
ICD for six and a half years, until January 2013, when Chief Evans initiated the first of
three transfers to different positions in the Department during the last year and nine
months of her employment. In January 2013, Chief Evans transferred Plaintiff from her
position in ICD to work the night shift on the Front Desk; in April 2013, he transferred
her to work the day shift in the Records Division; and in August 2014, he transferred her
back to the Front Desk, but she remained on the day shift. Plaintiff’s claims primarily
relate to her employment during this last year and nine months of her employment.
During the first four years of Plaintiff’s employment, the Department
administered performance reviews of her performance. 9 In 2010, performance reviews
stopped being associated with pay raises, and thus, the Department stopped
administering them for Plaintiff. 10 It is undisputed Plaintiff received positive
performance reviews during the time the Department administered them, and no
evidence indicates she did not perform well in each position she held throughout the
remainder of her employment.
Plaintiff suffers from vascular tension headaches and experienced such headaches
9
Evans Decl., ¶ 4, [Doc. 21-3].
Id.
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throughout her employment. Sometimes her headaches were so severe, they
incapacitated her, and she was unable to report for duty. Plaintiff asserts she first
informed Chief Evans of her headaches in 2006 when she was promoted to her position
in ICD.
The Department utilizes a progressive discipline system. 11 Each supervisor has
discretion whether to initiate disciplinary action when an employee violates
Departmental and/or City rules and policies. 12 When an employee is late to work, the
supervisor will first speak to the employee, and if problems persist, the supervisor will
document the infraction in a performance log.13 Supervisors consider performance logs
for up to one year when determining whether future violations will result in disciplinary
action, which includes verbal counseling and written counseling. In addition, when an
employee violates the rules and policies, a supervisor can initiate an internal affairs
(“IA”) investigation. If the investigation substantiates the violation, the employee may
receive more severe disciplinary action, including suspension and termination. Chief
Evans is the final decision maker on all IA investigations.
In the last years of her employment, Plaintiff had multiple attendance-related
violations of City and Departmental rules and policies resulting in several disciplinary
actions. In April 2009, Captain John Lanneau—Plaintiff’s supervisor in ICD—filed an IA
Evans Depo., p. 34, [Doc. 31-33].
Id. at p. 36.
13 Id. at p. 35.
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complaint against Plaintiff for violations of the City’s sick leave policy based on
Plaintiff’s “excessive usage of leave.” 14 In the first three months of 2009, Plaintiff used 41
hours of sick leave (thereby exhausting it) and 44.5 hours of annual leave. In his
complaint, Captain Lanneau wrote:
“In addition to the excessive use of sick leave, certain usage patterns have
been observed. Records indicate that [Plaintiff] is most likely to request sick
leave on Thursdays, Friday, and Mondays. This pattern concerns me,
especially in light of her latest request. [Plaintiff] called in sick on
Wednesday, April 1, 2009, and remained out the remainder of the week.
During this period, [Plaintiff] interacted with members of the animal shelter
while adopting a dog, and with members of veterinary clinic, instead of
coming to work. My concerns are related to [Plaintiff’s] excessive use of sick
leave, and the unique selection of days (Thursday, Friday, & Monday) sick
leave is requested. These two concerns also cause me to judge the legitimacy
of the requests.” 15
As a result of the IA Division’s investigation into Captain Lanneau’s complaints,
Plaintiff received a verbal counseling from Chief Evans and a written counseling from
Captain Lanneau stating the Department’s expectations concerning her use of sick leave.
Chief Evans also required Plaintiff to provide doctors’ notes for all absences because of
personal or family illnesses. Plaintiff states she reiterated to Captain Lanneau and Chief
Evans at this time that she suffered from vascular tension headaches sometimes so severe
she was unable to work.16 For the next two and a half years, Plaintiff received no
IA Complaint Form dated April 7, 2009, Pl. Depo., Ex. 4 [Doc. 24-2, p. 33].
Id.
16 Chief Evans disputes Plaintiff’s claims that she informed him of her headaches, maintaining he knew
nothing of Plaintiff’s disability until this litigation. At this summary judgment stage, however, the Court
accepts Plaintiff’s version of the facts.
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disciplinary actions.
At the end of 2012, Plaintiff exhausted all of her accumulated leave and used more
than 85 hours of leave-without-pay, which Chief Evans approved, due to absences
related to her headaches, the flu, and taking her children to spend time with their father
in Mississippi who suffered from terminal liver cancer. 17 On January 10 and 11, 2013,
Plaintiff was absent from work due to her headaches. Because she had exhausted her
leave, she requested leave-without-pay for those two days, which Chief Evans approved.
Three days later, on January 14, 2013, Chief Evans transferred Plaintiff from her day-shift
position in ICD, to work the night shift at the Front Desk. 18 Plaintiff testifies the Chief
transferred her because he was mad about her leave. Chief Evans states he assigned her
to the night shift “because she had missed so much work and was not dependable.” 19
Upon learning of her transfer, Plaintiff contacted the Department’s Human
Resources Department (“HR”) and spoke to Toni Graham. Plaintiff explained to Ms.
Graham that her use of leave was because of her headaches, the flu, and her ex-husband’s
terminal cancer. Plaintiff states Ms. Graham did not provide her with any information
In November and December 2012, Plaintiff took time off work to take her teenage children to be with their
father (her ex-husband) in the last weeks of his life. He passed away in early February 2013. Plaintiff does
not bring (nor could she bring) any claims that the City retaliated against her or interfered with her rights
under the FMLA for any time she took off to care for and/or visit her ex-husband. Any such claim would fail
because the FMLA only provides leave to care for an employee’s spouse, and it is undisputed Plaintiff was
not married at the time she took leave. Moreover, Plaintiff did not bring a claim of association discrimination
under the ADA.
18 Assignment letter to Plaintiff from Chief Evans, Pl. Depo., Ex. 5 [Doc. 24-2, p. 61].
19 Evans Declaration, ¶5 [Doc. 21-3].
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about the Family Medical Leave Act, and she told Plaintiff the City “may be trying to get
rid of [her] before her retirement benefits with Defendant vested because [she] was
approaching ten years of employment.” 20 Plaintiff remained with the Front Desk on the
night shift for about three months without incident.
Effective April 22, 2013, Chief Evans re-assigned Plaintiff from working the night
shift at the Front Desk to work the day shift as an Administrative Secretary within the
Records Division. 21 On May 1, 2013, the eighth day working at her new assignment,
Plaintiff overslept and was late to work. Her supervisor, Captain Joe Wetherington,
issued Plaintiff a performance log in which he advised her that tardiness was
unacceptable and failure to report to work on time in the future could result in
disciplinary action. 22 Two days later, on May 3, Captain Wetherington issued Plaintiff
another performance log in an “effort to reduce the amount of personal breaks [taken] by
[Plaintiff].” 23 Plaintiff was informed she could take one break every 4 hours, and she was
reminded she must still obtain doctor’s excuses for sick leave. 24
From January 2014, until she was terminated in September, Plaintiff had five
attendance-related incidents that resulted in disciplinary actions for tardiness, failing to
report to work, and unbecoming conduct. On February 27, 2014, Plaintiff failed to timely
Plaintiff Decl., ¶ 22 [Doc. 31-30].
Assignment letter to Plaintiff from Chief Evans, Pl. Depo., Ex. 6 [Doc. 24-2, p. 62].
22 Performance Log dated May 1, 2013, Pl. Depo., Ex. 7 [Doc. 24-2, p. 63].
23 Performance Log dated May 3, 2013, Pl. Depo., Ex. 8 [Doc. 24-2, p. 64].
24 Id.
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report for duty because she overslept. The very next day, on February 28, Plaintiff was
late to work again because she had forgotten her glasses and had returned home to get
them. Although Plaintiff did not inform Captain Wetherington she would be late, she did
attempt to notify a co-worker. Because of these two infractions, Captain Wetherington
initiated an IA investigation, and on April 9, 2014, after the investigation’s conclusion, he
issued Plaintiff a letter of counseling to report to work on time as required. 25
Approximately one month later, on May 8, 2014, Plaintiff reported late to work for
a third time because she overslept. Again, when Plaintiff had not arrived to work on
time, Captain Wetherington called her, and Plaintiff told him she would soon arrive for
duty. Captain Wetherington initiated a second IA investigation which resulted in an
eight-hour suspension without pay and 12-month probationary status. 26 The City warned
Plaintiff any future policy violations could result in greater discipline, including
termination.
The next month, in June 2014, the Department discovered Plaintiff did not return
to work on the days she was released early from serving on the Houston County Grand
Jury, and she had not received permission to be absent from work. Plaintiff had been
selected to serve on a grand jury for the first six months of 2014, from January through
June. The City paid Plaintiff eight hours for each day she served during this time period.
Letter of Counseling to Plaintiff from Captain Wetherington dated April 9, 2014, Pl. Depo., Ex. 10 [Doc. 242, p. 67].
26 Letter from Lt. Scott McSwain to Chief Evans dated May 21, 2014, Pl. Depo., Ex. 12 [Doc. 24-2, p. 14].
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The City’s Civil Leave policy provides that an employee who is called to serve on a jury
“will be granted civil leave for the period of time that [the employee is] actually required
to be away from [his or her] job.” 27 The City’s Absence without Leave policy states that
any absence of an employee from duty “that is not authorized by specific grants of leave
under the leave regulations shall be deemed to be an absence without leave,” and “[a]ny
such absence shall be without pay and shall subject the employee to disciplinary
action.” 28
Based on the belief Plaintiff had violated these policies, the Department initiated
another IA investigation, the third in five months. On June 19, 2014, while still on
probationary status, Plaintiff was placed on administrative leave pending the IA
investigation. The investigation revealed that no grand jury session lasted an entire
workday during those six months, Plaintiff did not receive permission to be absent, and
she did not report for duty on those days. Thus, on July 31, 2014, Chief Evans informed
Plaintiff she would be demoted one grade level without a pay reduction, she must
reimburse the City 50 hours of annual leave, and she would be placed on 12-month
probationary status. The City warned her “any [future] violations may result in further
disciplinary actions, up to, and including termination.” 29
James Windham, another City employee (although not employed with the Police
The City’s Employee Handbook at Warner Robins, Pl. Depo., 65:16-66; Ex. 15 [Doc. 27-5].
Id.
29 Pl. Depo., p. 66 [Doc. 31-31].
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Department), served on the same grand jury with Plaintiff. Like Plaintiff, he also did not
report to work on the days they were released early from duty. Also like Plaintiff, Mr.
Windham received a written reprimand and was originally required to reimburse the
City annual leave. Unlike Plaintiff, however, Mr. Windham appealed his reprimand, and
the City reversed its decision to require him to reimburse annual leave.
Less than a month after being disciplined for the grand jury incidents, in August
2014, Plaintiff took an unauthorized day off of work. In the early morning of August 18,
she sent a text message to her supervisor at the time, Lt. Lee VanOsdol, stating that she
needed to take the day off due to a “personal family matter.” 30 Lt. VanOsdol denied her
leave request. Plaintiff attempted to contact the next-in-command, Captain Bryan
Stewart, to receive permission to be absent, but she did not reach him. Plaintiff did not
report to work for duty. The City initiated another IA investigation, the fourth of the
year, and on August 19, 2014, it placed Plaintiff on administrative leave for the second
time in two months.
On August 22, 2014, while Plaintiff was on administrative leave pending the
investigation, Plaintiff filed a formal grievance against Chief Evans with the City’s HR
Department. Plaintiff complained that Chief Evans treated her unfairly. Pursuant to City
policy, a neutral mediator approved by Plaintiff investigated the grievance. On
September 7, the mediator informed the City of his finding that Plaintiff’s allegations
30
IA Investigation Activity Log, Pl. Depo., Ex. 17 [Doc. 27-17, p. 3].
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were unsubstantiated.
On September 8, 2014, the City suspended Plaintiff for three days with pay
pending discharge for violating her probationary status. The City’s Mayor adopted the
mediator’s findings on September 12, and the City formally terminated Plaintiff on
September 23, 2014, for violations of the City’s policies. She was 53 years old. The City
did not hire anyone to replace Plaintiff. Chief Evans states Booking Agent Luciana Davis
absorbed Plaintiff’s duties after her termination.
Plaintiff points to several co-workers she contends were similarly situated to her
but treated more favorably. In addition to James Windham, the City employee who
served with Plaintiff on the grand jury, Plaintiff points to three male employees she
contends shows the City’s bias toward her gender—John Clay, Al Rowland, and Captain
Lanneau. John Clay used 131.5 hours of sick leave in 2013, while Plaintiff only used 56
hours of sick leave, yet the City did not terminate him. Plaintiff states Al Rowland,
Plaintiff’s co-worker in ICD, and Captain Lanneau, Plaintiff’s supervisor in ICD, were
both compensated for fingerprint analyses, but Plaintiff was not.
Plaintiff also points to several younger women whom she contends engaged in
similar misconduct but were not disciplined or terminated thereby evidencing the City’s
bias toward her age—Shelly Belknap, Stephanie Sides, Jessica Hayes, Melanie
Humphrey, and Danielle Taylor. Plaintiff states Shelly Belknap, who worked with
Plaintiff in ICD and was also supervised by Captain Lanneau, used multiple days of sick
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leave to care for her sick dog but was not subjected to an IA investigation or disciplined
like Plaintiff was when she picked up her dog from the veterinarian while out on sick
leave. Plaintiff contends co-workers Stephanie Sides, Melanie Humphreys, Danielle
Taylor, and Jessica Hayes came in late to work more often than not but were never
disciplined.
DISCUSSION
I.
DISPARATE TREATMENT/DISCRIMINATORY DISCHARGE CLAIMS
A. Plaintiff Abandoned ADA Discriminatory Treatment Claim
In her Complaint, Plaintiff alleged the City discriminated against her based on her
gender, age, and disability in violation of Title VII, the ADEA, and the ADA. The City
moved for summary judgment on each of these claims. Plaintiff, however, failed to
respond to or address the City’s arguments regarding her ADA discriminatory treatment
allegations and only addressed her ADA failure to accommodate and retaliation claims.
Thus, Plaintiff has abandoned any alleged ADA disparate treatment/discriminatory
discharge claim. “When a non-moving party fails to address particular claims in the
moving party’s motion for summary judgment but responds to other arguments, the
non-moving party abandons these claims.” 31 Therefore, the Court only addresses the
merits of Plaintiff’s disparate treatment/discriminatory discharge claims under Title VII
and the ADEA.
31
Johns v. CSX Transp., Inc., 210 F. Supp. 3d 1357, 1373 (M.D. Ga. 2016) (citations omitted).
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B. Title VII and ADEA Discriminatory Treatment Claims
Because Plaintiff seeks to prove her Title VII and ADEA discriminatory treatment
claims through circumstantial evidence, the burden-shifting framework established in
McDonnell Douglas Corp. v. Green 32 guides the Court’s analysis for both claims. 33 Under
this framework, a plaintiff must first establish a prima facie case by establishing “facts
adequate to permit an inference of discrimination.” 34 If the plaintiff establishes her prima
facie case, the burden shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its adverse employment action. 35 If the employer meets this
“exceedingly light” burden, then the inference of discrimination is erased, and the
burden shifts back to the plaintiff, who must show that the employer’s proffered reasons
were merely pretext for discrimination. 36 Importantly, the ultimate burden of persuasion
remains on the plaintiff all times. 37
1. Prima Facie Case
Title VII prohibits an employer from discharging or otherwise discriminating
against any individual because of such individual’s sex. 38 To establish a prima facie case of
disparate treatment under Title VII, Plaintiff must generally show she (1) is a member of
411 U.S. 792 (1973).
See Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181 (11th Cir. 2010) (Title VII); Liebman v. Metropolitan Life
Ins. Co., 808 F.3d 1294, 1298 (11th Cir. 2015) (ADEA).
34 Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
35 Cleveland, 369 F.3d at 1193.
36 Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1061 (11th Cir. 1994).
37 Combs v. Plantation Patterns, 106 F.3d 1519, 1529 (11th Cir. 1997).
38 42 U.S.C. § 2000e-2(a)(1).
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a protected class; (2) suffered an adverse employment action; and (3) was treated less
favorably than a similarly situated individual outside her protected class or was replaced
by a person outside of her protected class. 39
Similarly, the ADEA makes it unlawful for an employer to discharge or otherwise
discriminate against any employee who is at least 40 years old on the basis of age. 40 To
make a prima facie case of age discrimination, the employee must show “(1) [s]he was a
member of the protected group between the age of forty and seventy; (2) [s]he was
subject to an adverse employment action; (3) a substantially younger person filled the
position from which [s]he was discharged; and (4) [s]he was qualified to do the job from
which [s]he was discharged.”41 In addition, “[t]o assert an action under the ADEA, an
employee must establish that his age was the ‘but-for’ cause of the adverse employment
action.” 42
For both of these claims, Plaintiff attempts to establish a prima facie case of
discrimination by showing the City treated similarly situated employees outside her
protected class more favorably. The adequacy of the comparators is crucial, and the Court
must consider whether the employees were, in fact, similarly situated to Plaintiff “in all
relevant respects” and treated more favorably. 43 “When a plaintiff alleges discriminatory
See, e.g., Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003).
See 29 U.S.C. §§ 623(a)(1), 631(a).
41 Liebman, 808 F.3d at 1298 (citing Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012)).
42 Id. (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009)).
43 Holifield, 115 F.3d at 1562.
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discipline, to determine whether employees are similarly situated, [the court must]
evaluate whether the employees are involved in or accused of the same or similar conduct
and are disciplined in different ways.” 44 “The relevant inquiry is not whether the
employees hold the same job titles, but whether the employer subjected them to different
employment policies.” 45 However, “the quantity and quality of the comparator’s
misconduct must be nearly identical [to the plaintiff’s] to prevent courts from secondguessing employers’ reasonable decisions and confusing apples with oranges.” 46 “The
most important factors in a comparator analysis in the disciplinary context are the nature
of the offenses committed and the nature of the punishments imposed.” 47 Here, none of
the co-workers Plaintiff points to are sufficiently similar to qualify as suitable comparators.
a. Title VII Claim
Plaintiff identifies James Windham, John Clay, Al Rowland, and John Lanneau as
similarly situated male employees who engaged in similar conduct but were treated more
favorably. James Windham, the male employee who, like Plaintiff, did not return to work
after grand jury duty, cannot serve as a proper comparator. The City originally gave Mr.
Windham the same discipline as Plaintiff. However, Mr. Windham appealed the
discipline; Plaintiff did not. Moreover, Mr. Windham did not work for the Police
Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006) (quotation omitted).
Lanthem v. Dep’t of Children & Family Servs., 172 F.3d 786, 793 (11th Cir. 1999).
46 Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999); see also Burke-Fowler, 447 F.3d at 1323.
47 Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1281 (11th Cir. 2008).
44
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Department and did not have the same decision maker—Chief Evans—as Plaintiff.
“[D]ifferences in treatment by different supervisors or decision makers can seldom be the
basis for a viable claim of discrimination” 48 because different decision makers may employ
different disciplinary measures. 49
John Clay also cannot serve as a proper comparator. The records show John Clay
used over twice the amount of sick leave Plaintiff used in 2013—131.5 hours compared to
Plaintiff’s 56 hours—but, unlike Plaintiff, he was not subjected to discipline for doing so.
However, the record only contains the number of hours Mr. Clay used; it contains no
surrounding context. No evidence shows his employment position, his duties, his
disciplinary record, his supervisor, or the circumstances under which he took leave.
Without such evidence, Plaintiff cannot establish Mr. Clay is similarly situated to her.
Finally, Al Rowland, Plaintiff’s co-worker in ICD, and Captain Lanneau, Plaintiff’s
supervisor in ICD, are improper comparators. Plaintiff contends both were compensated
for their fingerprint analysis duties, but Plaintiff was not. However, Plaintiff again fails to
point to any evidence regarding Mr. Rowland’s specific position in ICD, his duties, or his
disciplinary record, and Captain Lanneau was Plaintiff’s supervisor. No evidence reflects
she and Lanneau were engaged in substantially equal work such that he is a proper
Silvera v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 1261 n.5 (11th Cir. 2001); see also Mack v. ST Mobile Aerospace
Eng’g, Inc. 195 F. App’x 829, 844 (11th Cir. 2006) (finding comparators not similarly situated to plaintiff
because plaintiff reported to different supervisor).
49 See Jones v. Gerwens, 874 F.2d 1534, 1541 (11th Cir. 1989).
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comparator. 50 Thus, Plaintiff fails to establish a prima facie case of sex discrimination under
Title VII.
b. ADEA claim
As to her ADEA claim, Plaintiff identifies five younger women whom she
contends engaged in similar conduct but were never disciplined: Shelly Belknap,
Stephanie Sides, Jessica Hayes, Melanie Humphrey, and Danielle Taylor. Plaintiff states
Shelly Belknap used multiple days of sick leave to care for her sick dog but was not
subjected to an IA investigation or disciplined like Plaintiff was when she picked up her
dog from the veterinarian while out on sick leave. Plaintiff, however, was not disciplined
for simply picking up her dog while she was out on sick leave. On the contrary, Captain
Lanneau was concerned about the “legitimacy” of Plaintiff’s pattern of leave based on
Plaintiff’s “excessive use of sick leave, and the unique selection of days (Thursday,
Friday, & Monday) sick leave is requested.” 51 No evidence establishes Captain Lanneau
had the same concerns regarding Ms. Belknap.
Plaintiff contends Stephanie Sides, Melanie Humphreys, Danielle Taylor, and
Jessica Hayes came in late to work more often than not but were never disciplined.
However, no evidence establishes their disciplinary records or the circumstances under
which they were late on any given day. Again, without any such evidence, Plaintiff fails
See Dimino v. Georgia Dept. of Admin. Srvs., 631 F. App’x 745, 747 (11th Cir. 2015) (employee’s supervisor not
a proper comparator because no evidence they were engaged in “substantially equally work”).
51 IA Complaint Form dated April 7, 2009, Pl. Depo. Ex. 4 [Doc. 24-2, p. 33].
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to show these employees were involved in or accused of the same or similar conduct and
disciplined in different ways.
Moreover, Plaintiff’s contention she can establish a prima facie case of age
discrimination because she was replaced by a younger employee also fails. When
evaluating a replacement, the court “should focus on the person that physically replaced
the employee or consider whether that job title was actually filled.” 52 Here, the City did
not hire or promote anyone to fill the Front Desk Clerk position Plaintiff left vacant.
Instead, Booking Agent Luciana Davis absorbed Plaintiff’s duties. Plaintiff’s attempt to
characterize Ms. Davis as her replacement falls short for several reasons. First, Ms. Davis
was already employed with the Department. 53 No evidence indicates Chief Evans was
looking to have Ms. Davis fill Plaintiff’s position. 54 Moreover, Plaintiff asserts Ms. Davis
did not assume all of Plaintiff’s duties, and no evidence indicates Ms. Davis’s duties
changed. Thus, Plaintiff also fails to establish a prima facie case of age discrimination
under the theory she was replaced by a younger employee.
2. Pretext
Even if Plaintiff could establish a prima facie case of discrimination under Title VII
and/or the ADEA, the City has articulated legitimate, nondiscriminatory reasons for
terminating
Plaintiff—her
multiple
attendance-related
violations
of
City
and
Morris v. Emory Clinic, 402 F.3d 1076, 1082 (11th Cir. 2005) (internal quotation marks and citation omitted).
Compare Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987) and Phillips v. Aaron Rents, Inc., 262 F.
Appx. 202 (11th Cir. 2008) (replacements hired either soon before or soon after plaintiff’s termination).
54 Compare Rollins, 833 F.2d at 1529.
52
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Departmental rules and violations. Thus, to survive summary judgment, Plaintiff must
present sufficient evidence to create a genuine issue of material fact that the City’s
reasons are merely pretext for unlawful gender and/or age discrimination. “Conclusory
allegations of discrimination, without more, are not sufficient to raise an inference of
pretext or intentional discrimination where [an employer] has offered . . . extensive
evidence of legitimate, non-discriminatory reasons for its actions.” 55
To establish pretext, a “plaintiff must demonstrate that the proffered reason was not
the true reason for the employment decision. . . . [The plaintiff] may succeed in this either
directly by persuading the court that a discriminatory reason more likely motivated the
employer or indirectly by showing that the employer’s proffered explanation is unworthy
of credence.” 56 The inquiry into pretext is concerned with the employer’s beliefs, not the
employee’s perceptions of her performance. 57 Furthermore, this Court does not “sit a
super-personnel department that reexamines an entity’s business decisions.” 58
Here, Plaintiff fails to show any genuine issue of material fact exists showing
Defendant’s decision to terminate Plaintiff was merely pretext for gender or age
discrimination. No reasonable juror could find the City’s reasons for terminating Plaintiff
are unworthy of credence or were motivated by any discriminatory animus based on age
Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996) (quotations and citation omitted).
v. State of Ala. State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005) (emphasis added)
(quotations and citation omitted).
57 Holifield, 115 F.3d at 1565.
58 Alphin v. Sears, Roebuck & Co., 940 F.2d 1497, 1501 (11th Cir. 1991) (quotation omitted).
55
56Jackson
20
or gender. During the last year and a nine months of Plaintiff’s employment, Plaintiff had
seven attendance-related infractions, five of which occurred in the last nine months of her
employment, and all of which resulted in disciplinary actions. Plaintiff admitted each of
these infractions violated the City and Departmental policies. Moreover, these infractions
came after she had exhausted all of her leave and used more than 85 hours of leavewithout-pay at the end of 2012 that Chief Evans approved. Any argument that HR
employee Toni Graham’s comment to Plaintiff in January 2013 that the City “may be
trying to get rid of [her] before her retirement benefits . . . vested” establishes pretext for
age discrimination is unpersuasive. Ms. Graham’s comment is merely her conjecture.
Plaintiff “must present concrete evidence in the form of specific facts which show that
[the City’s] proffered reason is mere pretext. Mere conclusory allegations and assertions
will not suffice.” 59 Plaintiff relies on her contentions that other similarly situated
individuals were treated better than her, which this Court has rejected, and fails to
present any concrete evidence to rebut the City’s proffered reasons for her termination. 60
It is well established that “[a]n employer may fire an employee for a good reason,
bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action
is not for a discriminatory reason.”61 “Neither the plaintiff nor the court may recast the
Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990).
For these same reasons, Plaintiff has failed to show age was the but-for cause of her termination. See Gross,
557 U.S. at 176-77.
61 Silvera, 244 F.3d at 1262 (internal quotation marks omitted).
59
60
21
reason given by an employer for taking or failing to take a particular job action.” 62 The
burden is on Plaintiff to establish that her protected characteristic “actually motivated the
employer’s decision.” 63 Plaintiff has failed to carry her burden.
3. Convincing Mosaic
The Court recognizes that the McDonnell Douglas framework “is not the exclusive
means” of prevailing on a discrimination claim based on circumstantial evidence. 64
Indeed, it “was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely
a sensible, orderly way to evaluate the evidence in light of common experience as it bears
on the critical question of discrimination.” 65 The Eleventh Circuit has provided that “[a]
triable issue of fact exists if the record, viewed in a light most favorable to the plaintiff,
presents ‘a convincing mosaic of circumstantial evidence that would allow a jury to infer
intentional discrimination by the decisionmaker.’”66 For summary judgment to be
improper, the circumstantial evidence, when taken in the light most favorable to Plaintiff,
must be “convincing” and must raise a “reasonable inference” the employer acted with
discriminatory intent. 67 Here, even when construed in the light most favorable to
Plaintiff, the record simply does not support a reasonable inference of intentional
Id. at 1260.
Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc) (internal quotation marks omitted).
64 Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768, n. 3 (11th Cir. 2005) (Title VII).
65 U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983) (internal quotation omitted).
66 Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (quoting Silverman v. Bd. of Educ., 637
F.3d 729, 733 (7th Cir. 2011)).
67 Id.
62
63
22
discrimination based on Plaintiff’s gender or age.
4. Mixed Motive (Title VII)
In addition, no genuine issue of material fact exists to support any mixed-motive
claim for gender discrimination. 68 A plaintiff “can succeed on a mixed-motive claim by
showing that illegal bias, such as bias based on sex or gender, was a motivating factor for
an adverse employment action, even though other factors also motivated the action.” 69
“To avoid summary judgment, a plaintiff raising a mixed-motive claim must offer
evidence sufficient to convince a jury that: (1) the employer took an adverse employment
action against her; and (2) a protected characteristic was a motivating factor for the
employer’s adverse employment action.” 70
First, Plaintiff does not specifically raise a mixed-motive claim. However, even
assuming Plaintiff has raised such a claim, as explained above, no evidence exists from
which a reasonable jury could conclude that her gender was a motivating factor in her
termination. Chief Evans hired Plaintiff knowing she was female, and all the evidence
suggests that he fired her based on attendance-related violations of the City’s and the
Department’s policies, without any regard to her gender. Thus, Plaintiff’s Title VII
discrimination claims do not survive summary judgment under the mixed-motive
framework.
The Supreme Court's ruling in Gross, 557 U.S. 167 (2009), rejected mixed motive age discrimination claims.
Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1235 (11th Cir. 2016) (citations omitted).
70 Bowen v. Manheim Remarketing, Inc., 882 F.2d 1358, 1364 (11th Cir. 2018) (internal quotation marks and
citation omitted).
68
69
23
II.
ADA FAILURE TO ACCOMMODATE CLAIM
Plaintiff also contends the City denied her reasonable accommodation in violation
of the ADA. “An employer unlawfully discriminates against a qualified individual with a
disability when the employer fails to provide ‘reasonable accommodations’ for the
disability—unless doing so would impose undue hardship on the employer.”71 An
accommodation is “reasonable,” and thus required by the ADA, only if it enables the
employee to perform the essential functions of the job. 72 The duty to provide a reasonable
accommodation, however, “is not triggered unless a specific demand for an
accommodation has been made.” 73 Thus, the initial burden of requesting an
accommodation is on the employee, and only after the employee has satisfied that burden
and the employer failed to provide the accommodation can the employee prevail on a
discrimination claim. 74 The plaintiff bears the burden of identifying a reasonable
accommodation, and an employer is not required to accommodate an employee in any
manner in which the employee desires. 75
Here, Plaintiff has failed to provide sufficient evidence to show she requested an
accommodation for her alleged disability. An employer is not required to provide a
Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001) (quoting Davis v. Fla. Power & Light Co., 205
F.3d 1301, 1305 (11th Cir. 2000) (citing 42 U.S.C. § 12112(b)(5)(A)).
72 Id. at 1255.
73 Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363 (11th Cir. 1999) (per curiam).
74 Id.
75 Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285-86 (11th Cir. 1997)
71
24
reasonable accommodation unless the employee makes a “specific demand.” 76 While the
Eleventh Circuit has not “determined precisely what form the request [for reasonable
accommodation] must take,” 77 it has indicated in an unpublished opinion that “for a
demand to be specific enough to trigger the duty to provide a reasonable accommodation,
the defendant must have enough information to know of both the disability and desire for
an accommodation, or circumstances must at least be sufficient to cause a reasonable
[employer]
to
make
appropriate
inquiries
about
the
possible
need
for
an
accommodation.” 78
Plaintiff
contends her
requests for
leave
were
requests for
reasonable
accommodations under the ADA, and Chief Evans’s refusal to approve her leave requests
despite knowing she had a health condition that impacted her leave balance were denials
of her requests for specific accommodations. This argument, however, is nothing more
than her own subjective belief that her supervisors should have known that she impliedly
requested an accommodation. No evidence indicates the Chief knew of her desire for an
accommodation or that a reasonable employer should have made inquiries about the
possible need for an accommodation. Plaintiff did not indicate she needed accommodation
Gaston, 167 F.3d at 1363.
Holly v. Clairson Indus., LLC, 492 F.3d 1247, 1261 n. 14 (11th Cir. 2007).
78 United States v. Hialeah Hous. Auth., 418 F. App’x 872, 876 (11th Cir. 2011) (per curiam) (internal quotation
marks and citation omitted); see also Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1226 (11th Cir. 2016) (holding in
FHA case that ‘a plaintiff can be said have made a request for accommodation when the defendant has
enough information to know of both the disability and desire for an accommodation.”) (internal quotation
marks and citation omitted).
76
77
25
or any adjustment to her schedule. When Plaintiff requested leave due to her headaches,
she received it.
Even if Plaintiff’s requests for leave qualified as specific requests for
accommodations, no reasonable jury could find the City failed to accommodate her. On
the contrary, Plaintiff’s own testimony indicates she received all of the leave she requested
for any occasions in which she suffered from headaches. 79 Moreover, no evidence indicates
her discipline for tardiness, absences, and misuse of leave had anything to do with her
headaches. Plaintiff contends the City only disciplined her for the attendance-related,
minor infractions because she had taken leave due to her headaches. However, Plaintiff’s
contention is just that—a contention based on nothing more than speculation and her own
subjective beliefs. No evidence supports her argument. Thus, Plaintiff’s ADA reasonable
accommodation claim cannot survive summary judgment.
III.
TITLE VII, ADEA, AND ADA RETALIATION CLAIMS
Plaintiff also asserts the City terminated her in retaliation for having complained to
City personnel and for filing the formal grievance against Chief Evans on August 22, 2014,
in violation of Title VII, the ADEA, and the ADA. Because the evidence is circumstantial,
the McDonnell Douglas burden-shifting framework detailed above applies to Plaintiff’s
retaliation claims, although the elements of the prima facie case differ. “[T]o successfully
allege a prima facie retaliation claim under either Title VII, the ADEA, or the ADA, a
79
Pl. Depo., p. 202 [Doc. 31-32].
26
plaintiff must show that (1) she engaged in statutorily protected expression; (2) she
suffered an adverse employment action; and (3) the adverse action was causally related to
the protected expression.” 80 “Once a prima facie case has been established, the [employer]
may come forward with legitimate reasons for the employment action to negate the
inference of retaliation.” 81 If the employer is able to show legitimate reasons for the
adverse employment action, the burden shifts back to the employee to demonstrate by a
preponderance of the evidence that the employer’s reasons are pretextual. 82 Here, Plaintiff
fails to establish a prima facie case of retaliation.
A. Prima Facie Case
To satisfy a prima facie case of retaliation, Plaintiff must first show she engaged in
statutorily protected activity. To establish that a plaintiff engaged in statutorily protected
expression under the opposition clause, the Eleventh Circuit has held that a plaintiff must
show she “had a good faith, reasonable belief that the employer was engaged in unlawful
employment practices.” 83 Thus, Plaintiff “must not only show that [s]he subjectively (that
is, in good faith) believed that [the City] was engaged in unlawful employment practices,
but also that [her] belief was objectively reasonable in light of the facts and record
presented.” 84
Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002) (citations omitted).
Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1310-11 (11th Cir. 2016) (citations omitted).
82 Id.
83 Little v. United Tech., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997) (citations omitted).
84 Id.
80
81
27
Complaints, whether formal or informal, are not protected activity unless they
satisfy two criteria. First, Plaintiff’s complaint must have put the City on notice that she
was opposing a practice made unlawful by Title VII, the ADEA, and the ADA. “A
complaint about an employment practice constitutes protected opposition only if the
individual explicitly or implicitly communicates a belief that the practice constitutes
unlawful employment discrimination.” 85 Second, the complaint must have been based on
“a ‘good faith reasonable belief’ that her employer was engaged in unlawful
discrimination.” 86 A complaint about conduct that cannot reasonably be believed to violate
anti-discrimination laws is not a protected activity for Title VII, ADEA, and ADA
purposes.
1. Formal Grievance
Plaintiff did not engage in statutorily protected activity when she filed her formal
grievance on August 22, 2014, because her allegations did not put the City on notice she
was opposing any unlawful conduct under Title VII, the ADEA, or the ADA. In the fivepage formal grievance 87 and the eleven-page supplemental complaint she submitted to HR
on August 25, 2014, 88 Plaintiff does not mention age, sex, or her disability. Plaintiff
complained of “misuse of position, actions unbecoming, harassment, and targeting”
Murphy v. City of Aventura, 383 F. App’x 915, 918 (11th Cir. 2010) (internal quotation marks and citation
omitted).
86 Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th Cir. 1999).
87 Formal Grievance against Chief Evans, Pl. Depo., Ex. 20 [Doc. 27-19].
88 Supplemental Statement to Grievance, “Complaints against Chief of Police Brett Evans,” Ex. 23 [Doc. 2723].
85
28
because of her use of sick leave and her tardiness. 89 Specifically, Plaintiff complained Chief
Evans “wrongfully used his position to provide jobs as favors to friends[,] [r]egardless of
the costs of others,” took “actions that have proven to not be in the best interest of the
[WRPD], the City [ ], or the citizens of Warner Robins,” and “harassed and targeted [her]
in order to cover up his improper actions of moving me from IDC.” 90 In addition, she
complains that her supervisors, under the direction of Chief Evans, “continued to harass
[her] about [her] use of sick leave,” “wrongfully accused [her] of taking excessive breaks,”
and “harassed [ ] and wrongfully accused [her] of blatant tardiness.” 91 Plaintiff’s
complaints about Chief Evans’s conduct cannot reasonably be believed to violate antidiscrimination laws under Title VII, ADEA, and ADA.
However, even assuming Plaintiff’s formal grievance qualifies as statutorily
protected activity under the ADA, Title VII, or the ADEA, Plaintiff cannot establish filing
this grievance was causally related to her termination. ADA, Title VII, and ADEA
retaliation claims must be proved according to the traditional principles of “but-for”
causation, meaning that a plaintiff “must establish that his or her protected activity was a
but-for cause of the alleged adverse action by the employer.” 92 “[T]he plaintiff always has
Id.
Id.
91 Id.
92 Smith v. City of Fort Pierce, Fla., 565 F. App’x 774, 778 (11th Cir. 2014). Because no claim survives summary
judgment, it is unnecessary for this Court to address whether multiple “but-for” employment discrimination
claims may proceed past the summary judgment stage. Compare Jones v. Allstate Ins. Co., 281 F. Supp. 3d 1211,
(N.D. Ala. 2016) (finding multiple “but-for” employment discrimination claims may not proceed past
89
90
29
the burden of persuasion to proffer evidence sufficient to permit a reasonable fact finder to
conclude that discriminatory animus was the but-for cause of the adverse employment
action.” 93 “The burden of causation can be met by showing close temporal proximity
between the statutorily protected activity and the adverse employment action.” 94 “But
mere temporal proximity, without more, must be ‘very close.’” 95
Here, even the “very close” temporal proximity between the date Plaintiff filed her
formal grievance and her termination three weeks later will not satisfy the causation
standard. On August 22 when Plaintiff filed the grievance, she was on probationary status
and out on administrative leave pending the IA investigation from her failure to report to
work on August 18; in addition, she had been warned she could be terminated. “When an
employer contemplates an adverse employment action before an employee engages in
protected activity, temporal proximity between the protected activity and the subsequent
adverse employment action does not suffice to show causation.” 96
Plaintiff did not make any other complaints of sex or age discrimination. Thus,
because Plaintiff fails to show she engaged in statutorily protected activity and, even if she
did, such activity was causally related to an adverse employment action, she fails to
summary judgment), with Hein v. IMS Gear Holding, Inc., Case No. 2:16-CV-81, 2018 WL 1833254 (N.D. Ga.
January 31, 2018) (allowing multiple “but-for” employment discrimination claims to proceed through
summary judgment).
93 Smith, 565 F. App’x at 778 (internal quotation marks and citation omitted).
94 Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (citation omitted).
95 Id. (citation omitted).
96 Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006).
30
establish a prima facie case of retaliation claim under Title VII and the ADEA, and the City
is entitled to summary judgment on those claims.
2. Informal Complaints related to ADA Retaliation Claim
As to her ADA retaliation claim, Plaintiff states she made two informal complaints
to personnel in the Human Resources Department (“HR”). In January 2013, when she
learned of her transfer from ICD to work the night shift on the Front Desk, Plaintiff
complained to Toni Graham in HR that she believed she was being treated differently
because of her requests for and use of leave to accommodate her disability. In early
August 2014, when she returned to work from administrative leave while the Department
investigated her absences while serving on the grand jury, she complained to HR Director
Bryan Fobbus that she believed she was being harassed for use of sick leave for her chronic
and severe headaches. These complaints sufficiently qualify as activity protected by the
ADA.
Plaintiff, however, fails to establish a causal connection between these complaints
and any discipline she received, including her termination. As stated above, to establish
causation, Plaintiff must show the decision-maker was aware of the protected conduct 97
Singleton v. Public Health Trust of Miami-Dade County, 725 F. App’x 736, 738 (11th Cir. 2018) (internal
quotation marks and citations omitted).
97
31
and that the statutorily protected expression was the “but-for” cause of the disciplinary
action. 98 Plaintiff can prove neither.
“At a minimum,” the employee must show the decision maker was “actually
aware” of the protected conduct at the time it took the adverse employment action. 99 As to
Plaintiff’s complaint to Ms. Graham in Human Resources, the record contains no evidence
Chief Evans, the decision maker, knew of any such complaint. Even if he did have
knowledge, Plaintiff fails to show (or even argue) how Plaintiff’s complaint to Ms. Graham
was the but-for cause of any disciplinary action she suffered. First, Plaintiff’s complaint
cannot be the cause of her transfer to work the night shift at the Front Desk because Chief
Evans had already made the decision to transfer Plaintiff before she complained to Ms.
Graham. Second, no reasonable juror could find the City terminated Plaintiff because of
her complaint to Ms. Graham. Plaintiff complained in January 2013 and was terminated a
year and nine months later in September 2014. Thus, it cannot satisfy the “very close”
temporal proximity required to establish causation. 100
As to Plaintiff’s complaint to HR Director Fobbus, again, no evidence shows Chief
Evans was aware of this complaint. Even if Chief Evans was aware, and the six-week
temporal proximity between Plaintiff’s complaint and her termination sufficiently satisfies
Frazier-White v. Gee, 818 F.3d 1249 (11th Cir. 2016) (citation omitted).
Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993).
100 Id. (citation omitted).
98
99
32
a causal connection, 101 Plaintiff’s claim still fails because she cannot establish the City’s
legitimate, non-retaliatory reasons for termination are merely pretext for retaliation. The
record contains no evidence other than the close temporal proximity between her
complaint to Fobbus and her termination, but close temporal proximity, standing alone, is
insufficient to establish pretext. 102
IV.
FMLA CLAIMS
Under the FMLA, employees are entitled to leave for specified family and medical
reasons. 103 In relevant part to this case, the FMLA provides that an employee is entitled to
up to twelve weeks of leave each year “[b]ecause of a serious health condition that makes
the employee unable to perform the functions of the position of such employee.” 104
It is unlawful for an employer to “interfere with, restrain, or deny the exercise of
or the attempt to exercise” these FMLA rights. 105 It is also unlawful for an employer to
The Eleventh Circuit has held that a three-to-four-month gap between the protected activity and the
adverse action is too long to alone establish causation, Thomas, 506 F.3d at 1364, but it has held that seven
and eight weeks is sufficiently proximate to create a causal nexus, see Farley v. Nationwide Mut. Ins. Co., 197
F.3d 1322, 1337 (11th Cir. 1999) (seven weeks sufficient); Berman v. Orkin Exterminating Co., Inc., 160 F.3d 697,
702 (11th Cir. 1998) (holding that adverse-employment action taken between five weeks and “a couple of
months” of plaintiff’s filing of an EEOC complaint was sufficient to establish a causal connection).
102 Anyanwu v. Brumos Motor Cars, Inc., 496 F. App’x 943, 947-48 (11th Cir. 2012) (while close temporal
proximity can contribute to a finding of pretext, by itself, it is not enough); Walden v. Ctrs. For Disease Control
and Prevention, 669 F.3d 1277, 1290 (11th Cir. 2012) (a showing of temporal proximity not enough to negate
evidence of non-retaliatory reasons for adverse employment action); Matias v. Sears Home Improvement Prods.,
391 F. App’x 782, 787-88 (11th Cir. 2010) (“Brown does not argue that temporal proximity, standing alone, is
sufficient to establish pretext. Nor could he under our precedent.”); Hurlbert v. St. Mary’s Health Care Sys., 439
F.3d 1286, 1298 (11th Cir. 2006) (holding close proximity of two weeks between protected conduct and
termination was “evidence pretext, though probably insufficient to establish pretext by itself.”).
103 See generally 29 U.S.C. § 2612.
104 Id. at § 2612(a)(1)(D).
105 Id. at § 2615(a)(1).
101
33
“discharge or in any other manner discriminate against any individual for opposing any
practice made unlawful” by the FMLA. 106 An employee seeking to enforce the FMLA’s
substantive provisions may bring a private action against his employer.107 The Eleventh
Circuit has recognized two types of FMLA claims: retaliation and interference. 108 Plaintiff
asserts claims for both.
A. FMLA Interference
“To prove FMLA interference, [Plaintiff] must demonstrate that she was denied a
benefit to which she was entitled under the FMLA and that she has been prejudiced by
the violation in some way.” 109 Plaintiff “need not show that the employer intended to
deny an FMLA benefit—the employer’s motives are irrelevant in the context of an
interference claim.” 110
Plaintiff essentially contends the City should have known she was entitled to
FMLA benefits and failed in its duty to inform her of such benefits. Before taking leave,
an employee requesting FMLA leave is required to give notice to the employer. 111 Notice
is valid if it is “sufficient to make the employer aware that the employee needs FMLA
Id. at § 2615(a)(2).
Id. at § 2617.
108 Hurlbert, 439 F.3d at 1293.
109 Evans v. Books-A-Million, 762 F.3d 1288, 1295 (11th Cir. 2014) (internal quotation marks and citations
omitted).
110 Bartels v. So. Motors of Savannah, Inc., 681 F. App’x 834, 840 (11th Cir. 2017) (citing Hurlbert v. St. Mary’s
Health Care Sys., Inc., 439 F.3d 1286, 1293 (11th Cir. 2006)).
111 29 C.F.R. § 825.302(a).
106
107
34
qualifying leave.” 112 An employee is not required to “expressly assert rights under the
FMLA or even mention the FMLA.”113 However, the employee must provide the
employer with notice sufficient to “make the employer aware that [the] absence is due to
a potentially FMLA-qualifying reason.” 114 Without sufficient notice, the employer is
under no obligation to comply with the requirements of the FMLA. 115 The regulations
provide that calling in “sick” without providing more information is not sufficient notice
to trigger an employer’s FMLA obligations. 116 The FMLA, however, does not require
“employers to engage in intrusive inquiries to determine whether the FMLA applies.” 117
Here, viewing the evidence in the light most favorable to Plaintiff, sufficient
evidence exists from which a reasonable jury could find Plaintiff provided the City with
sufficient notice to trigger its FMLA obligations to inform her of FMLA benefits.
However, Plaintiff must also demonstrate the denial of the benefit harmed her. 118 Plaintiff
cannot show she suffered any harm; thus, she cannot maintain her FMLA interference
claim. Plaintiff received all of the leave she requested due to her headaches. “[A] plaintiff
suffers no FMLA injury when [she] receives all the leave [she] requests, and indeed is
29 C.F.R. § 825.303(a); § 825.302(c).
Id.
114 Gay v. Gilman Paper Co., 125 F.3d 1432, 1436 (11th Cir. 1997).
115 See Andrews v. CSX Transp., Inc., 737 F. Supp. 2d 1342, 1351 (M.D. Fla. 2010).
116 29 C.F.R. § 825.303.
117 Andrews v. CSX Transp., Inc., 737 F. Supp. 2d 1342, 1351 (M.D. Fla. 2010).
118 Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1275 (11th Cir. 1999).
112
113
35
paid for most of it.” 119 Thus, the City is entitled to summary judgment on Plaintiff’s
FMLA interference claim.
B. FMLA Retaliation
Plaintiff also contends the City terminated her employment in retaliation for
exercising her FMLA rights. To succeed on a FMLA retaliation claim, an employee must
demonstrate her employer intentionally discriminated against her in the form of an
adverse employment action for having exercised a FMLA right. 120 A plaintiff bringing a
retaliation claim must show that her employer’s actions “‘were motivated by an
impermissible retaliatory or discriminatory animus.’” 121 Like her other retaliation claims,
Plaintiff offers no direct evidence of discriminatory retaliation in violation of the FMLA;
thus, the Court must analyze this claim under the burden-shifting framework established
by the Supreme Court in McDonnell Douglas set forth above. 122
Here, even assuming Plaintiff’s requests for leave due to her headaches qualify as
statutorily protected activity under the FMLA, and even assuming she could establish
such requests were not “wholly unrelated” to her termination, 123 no reasonable factfinder
could find the City’s legitimate, non-retaliatory reasons for her termination are merely
Id.
See Strickland, 239 F.3d at 1207.
121 Id.
122 Id.
123 See Brungart v. Bellsouth Telecomm., Inc., 231 F.3d 791, 799 (11th Cir. 2000). The Eleventh Circuit has not
ruled whether the but-for causation standard applicable to Title VII, ADEA, and ADA retaliation claims
applies to FMLA retaliation claims. Thus, the Court will assume for purposes of summary judgment that the
more lenient “not wholly unrelated” causation standard applies.
119
120
36
pretext for retaliation. As stated above, all evidence shows the City terminated Plaintiff’s
employment because of her repeated violations of City and Departmental policies and
rules regarding tardiness, unexcused absences, and misuse of leave that had no
relationship to her headaches. Plaintiff’s seven attendance-related infractions in the last
year and nine months of Plaintiff’s employment were in no way FMLA-related. Indeed,
Plaintiff admitted violating the City and Departmental policies. Plaintiff fails to point to
any evidence from which a jury could conclude these infractions were not the legitimate
basis for her termination. Thus, the City is entitled to summary judgment on Plaintiff’s
FMLA retaliation claim.
CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment [Doc. 21] is
GRANTED.
SO ORDERED, this 10th day of August, 2018.
S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT
37
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