Morales v. Georgia Department of Human Resources, Division of Family & Children Services

Filing 46

ORDER granting 30 Motion for Summary Judgment. Ordered by Judge Hugh Lawson on November 8, 2010. (mbh)

Morales v. Georgia Department of Human Resources, Division of Family & Children Services

Doc. 46

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF GEORGIA V AL D O S T A DIVISION J E N N Y I. MORALES, P la in tiff, C iv il Action 7:08-CV-156 (HL) v. G E O R G IA DEPARTMENT OF HUMAN R E S O U R C E S , DIVISION OF FAMILY & C H IL D R E N SERVICES, Defendant. ORDER T h is case is before the Court on Defendant's Motion for Summary Judgment (D o c . 30). Plaintiff, Jenny I. Morales, has filed a response, and Defendant has filed a reply. After reviewing the briefs, affidavits, depositions, and other evidence, D e fe n d a n t's Motion for Summary Judgment is granted. I. BACKGROUND P la in tiff began working for the Lowndes County Department of Family and C h ild re n Services (the "Lowndes DFCS" or the "DFCS") on April 16, 2007, as an E r r o r Control Specialist. Plaintiff's employment was terminated on September 16, 2008. Plaintiff filed this action on November 28, 2008, alleging violations of the R e h a b ilita tio n Act of 1973, 29 U.S.C. § 794, based upon alleged disability d is c rim in a tio n , failure to provide reasonable accommodations, and retaliation. D e fe n d a n t has moved for summary judgment, as it contends Plaintiff failed to

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exhaust her administrative remedies, failed to establish that she is a qualified in d ivid u a l with a disability, failed to establish that she was discriminated against due to her alleged disabilities, and failed to establish a retaliation claim. II. SUMMARY JUDGMENT STANDARD S u m m a ry judgment must be granted if "the pleadings, the discovery and d is c lo s u re materials on file, and any affidavits show that there is no genuine issue to any material facts and that the movant is entitled to judgment as a matter of law." F e d . R. Civ. P. 56(c). A genuine issue of material fact arises only when "the e vid e n c e is such that a reasonable jury could return a verdict for the nonmoving p a rty." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1 9 8 6 ). W h e n considering a motion for summary judgment, the Court must evaluate a ll of the evidence, together with any logical inferences, in the light most favorable to the nonmoving party. Id. at 254-55. The Court may not, however, make credibility d e te rm in a tio n s or weigh the evidence. Id. at 255. T h e moving party "always bears the initial responsibility of informing the d is tric t court of the basis for its motion, and identifying those portions of the p le a d in g s , depositions, answers to interrogatories, and admissions on file, together w ith the affidavits, if any, which it believes demonstrate the absence of a genuine is s u e of a material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2 5 5 3 (1986) (internal quotation marks omitted). If the moving party meets this b u rd e n , the burden shifts to the nonmoving party to go beyond the pleadings and
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present specific evidence showing that there is a genuine issue of material fact, or th a t the moving party is not entitled to judgment as a matter of law. Id. at 324-26. If th e evidence that the nonmovant presents, however, is "not significantly probative" o r is "merely colorable," then summary judgment may be granted. Anderson, 477 U .S . at 249, 106 S.Ct. at 2511. This evidence must consist of more than mere c o n c lu s o ry allegations. See Avrigan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). S u m m a ry judgment must be entered "against a party who fails to make a showing s u ffic ie n t to establish the existence of an element essential to that party's case, and o n which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 1 0 6 S.Ct. at 2552. III. AN AL Y S IS "T h e [Rehabilitation] Act prohibits federal agencies from discriminating in e m p lo ym e n t against otherwise qualified individuals with a disability." Mullins v. C ro w e ll, 228 F.3d 1305, 1313 (11th Cir. 2000); see also Ellis v. England, 432 F.3d 1 3 2 1 , 1326 (11th Cir. 2005). Rehabilitation Act claims are analyzed in the same m a n n e r as claims brought under the Americans with Disabilities Act ("ADA"). 29 U .S .C . § 7949(d); Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000); Sutton v. L a d e r, 185 F.3d 1203, 1207 n. 5 (11th Cir. 1999). The Eleventh Circuit has e s ta b lis h e d that cases decided under the ADA are precedent for cases under the R e h a b ilita tio n Act, and vice-versa. Pritchard v. S. Co. Servs., 92 F.3d 1130, 1132 n. 2 (11th Cir. 1996).

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A.

E x h a u s tio n of Administrative Remedies as to Termination Claim

B e fo re reaching the merits of Plaintiff's claims, the Court must first address D e fe n d a n t's contention that Plaintiff's claims regarding her termination should be d is m is s e d because she failed to exhaust her administrative remedies. A plaintiff p u rs u in g a claim under the Rehabilitation Act must satisfy the exhaustion of a d m in is tra tive remedies requirements prescribed by Title VII of the Civil Rights Act o f 1964, 42 U.S.C. §§ 2000e-5, 16, 29 U.S.C. § 794a. "In order to sue in court for violations of Title VII, a plaintiff must exhaust a d m in is tra tive remedies, which means she must receive a right-to-sue letter from the E E O C ." W ilk e rs o n v. H & S, Inc., 366 Fed. Appx. 49, 50 (11th Cir. 2010) (citing W ilk e rs o n v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001)); see also R o d rig u e z v. W e t Ink, LLC, 603 F.3d 810, 812 (10th Cir. 2010) ("Both state and fe d e ra l law require discrimination complainants to receive right-to-sue notices to file p riva te civil actions."); Barzanty v. Verizon PA, Inc., 361 Fed. Appx. 411, 413 (3d Cir. 2 0 1 0 ) ("[T]he plaintiff must wait until the EEOC issues a right-to-sue letter before she c a n initiate a private action."); Abraham v. W o o d s Hole Oceanographic Inst., 553 F .3 d 114, 119 (1st Cir. 2009) (stating that an employee must wait to receive his rightto -s u e letter before filing a complaint in federal court); Ferrari v. E-Rate Consulting S e rvs ., 655 F.Supp.2d 1194, 1201 (M.D. Ala. 2009) ("It is well settled that before b rin g in g a Title VII suit in federal court, an aggrieved employee must file a charge o f discrimination with the EEOC and obtain a right-to-sue letter.")

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There is no dispute that Plaintiff had not received a right-to-sue letter on the E E O C charge relating to her termination prior to filing this lawsuit. However, on O c to b e r 22, 2010, almost seven months after Defendant filed its Motion for S u m m a ry Judgment in which it raised the failure to exhaust argument, and almost tw o years after commencing this lawsuit, Plaintiff filed a right-to-sue notice dated S e p te m b e r 21, 2010. In the Eleventh Circuit, the "receipt of a right-to-sue letter is not a jurisdictional p re re q u is ite to suit in district court, but rather, is a condition precedent subject to e q u ita b le modification." Forehand v. Fl. State Hosp. at Chattahoochee, 89 F.3d 1 5 6 2 , 1568 (11th Cir. 1996) (citation omitted). Because Plaintiff filed her lawsuit b e fo re receiving her right-to-sue notice on the termination charge, she must depend u p o n equitable modification of the exhaustion requirement. See id. There is "no per se rule that receipt of a right-to-sue letter during pendency of th e suit always satisfies the exhaustion requirement." Id. at 1570. The burden is on P la in tiff to show that equitable modification should apply. Here, Plaintiff has p r e s e n te d no evidence and made no claim that she is entitled to equitable m o d ific a tio n of the statutory requirement that she receive the right-to-sue notice prior to filing her lawsuit. Contra Fouche v. Jekyll Island State Park Auth., 713 F.2d 1518, 1 5 2 6 (11th Cir. 1983) (right-to-sue notice requirement waived when the plaintiff d ilig e n tly attempted to obtain a right-to-sue letter from the Attorney General, who re fu s e d to issue the letter to her).

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In light of Plaintiff's failure to receive a right-to-sue letter on the termination c h a r g e prior to filing suit, and her failure to show that she is entitled to equitable m o d ific a tio n of that requirement, the Court finds that Defendant is entitled to s u m m a ry judgment on all of Plaintiff's termination claims. B. D is c rim in a tio n Claim

T o establish a prima facie case of discrimination under the Rehabilitation Act, P la in tiff must show that she was: (1) disabled or perceived to be disabled; (2) a q u a lifie d individual; and (3) discriminated against on the basis of her disability." Ellis, 4 3 2 F.3d at 1326. 1. Walking

A "disability" for purposes of the Rehabilitation Act is defined as: "(A) a p h ys ic a l or mental impairment that substantially limits one or more major life a c tivitie s of such individual; (B) a record of such an impairment; or (C) being re g a rd e d as having such an impairment." 42 U.S.C. § 12102(1). Plaintiff contends th a t she has a physical impairment that substantially limits the major life activity of w a lk in g .1 Defendant contends that Plaintiff has not established that she was disabled

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In her complaint and deposition, Plaintiff alleged that she suffered from injuries to her ankle and back, and a mental impairment, all of which impaired her ability to perform the major life activities of walking, standing, and working. However, in response to Defendant's Motion for Summary Judgment, which addresses all of the alleged disabilities, Plaintiff only addresses the ankle injury and the major life activities of walking and working. "[G]rounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned." Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995); see also Road Sprinkler Fitters v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994) (claims not addressed in response to summary judgment motion deemed abandoned). Accordingly, summary judgment in Defendant's favor on the mental impairment disability claim, back injury disability claim, and claims relating to the major life activity of standing is appropriate.
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while employed by the Lowndes DFCS.2 T h e question of disability under the "substantially limits" prong relied upon by P la in tiff involves a three-step analysis. Bragdon v. Abbott, 524 U.S. 624, 631, 118 S .C t. 2196, 2202 (1998); Rossbach v. City of Miami, 371 F.3d 1354, 1357 (11th Cir. 2 0 0 4 ). First, the individual must be impaired. Second, the court must identify the life a c tiv it y that the individual claims has been limited and determine whether it is a m a jo r life activity under the ADA. Finally, the court must determine whether the im p a irm e n t substantially limits the life activity. In this case, the question is whether th e major life activity of walking was limited by Plaintiff's impairments. Rossbach, 3 7 1 F.3d at 1357. T h e term "substantially limits" means the individual is (1) unable to perform a m a jo r life activity that the average person in the general population can perform; or (2 ) significantly restricted as to the condition, manner, or duration under which she c a n perform a particular major life activity as compared to the condition, manner, or d u ra tio n under which the average person in the general population can perform that s a m e major life activity. 29 C.F.R. § 1630.2(j)(1)(i)-(ii). In determining whether an in d ivid u a l is substantially limited in a major life activity, the district court should c o n s id e r: (1) the nature and severity of the impairment; (2) the duration or expected d u ra tio n of the impairment; and (iii) the permanent or long term impact, or the

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Plaintiff does not argue that she is disabled under the second or third prongs of the disability test as relates to walking. She only contends that she has a physical impairment that substantially limits her walking. Thus, the Court will only address the first prong of the disability test.
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expected permanent or long term impact of or resulting from the impairment. 29 C .F .R . § 1630.2(j)(2)(i)-(iii). "The terms `major life activities' and `substantial lim ita tio n ' must be `interpreted strictly to create a demanding standard for qualifying a s disabled. . . .'" Gretillat v. Care Initiatives, 481 F.3d 649, 652 (8th Cir. 2007) (q u o tin g Toyota Motor Mfg., Ky., Inc. v. W illia m s , 534 U.S. 184, 197, 122 S.Ct. 681, 6 9 1 (2002)). Further, in determining whether a limitation is substantial, the court m u s t take into account any mitigating or corrective measures. Sutton v. United Air L in e s , Inc., 527 U.S. 471, 482, 119 S.Ct. 2139, 2146-47 (1999).3 Although "a person w h o s e physical or mental impairment is corrected by mitigating measures still has a n impairment, . . . if the impairment is corrected it does not `substantially limit' a m a jo r life activity." Id. at 483. An individual has not shown that her ability is su b sta n tia lly limited if her functioning is only "moderately below average." Rossbach, 3 7 1 F.3d at 1358.

Congress enacted major changes to the ADA in 2008, which became effective January 1, 2009. See ADA Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553 (2008). Through those amendments, Congress rejected the strict standard set forth in Toyota, overruled Sutton, and expressly instructed courts that "[t]he definition of disability in [the ADA] shall be construed in favor of broad coverage of individuals." Id. The Eleventh Circuit held in an unreported decision that the amendments do not apply retroactively, Fikes v. W al-Mart, Inc., 322 Fed. Appx. 882 (11th Cir. 2009), and a number of other circuit courts have held that the amendments are not retroactive. See Nyrop v. Indep. Sch. Dist. No. 11, 616 F.3d 728, 734 n. 4 (8th Cir. 2010); Becerril v. Pima County Assessor's Office, 587 F.3d 1162, 1164 (9th Cir. 2009); Milholland v. Sumner County Bd. of Educ., 569 F.3d 562, 565 (6th Cir. 2009); E.E.O.C. v. Agro Distrib., LLC, 555 F.3d 462, 469-70 n. 8 (5th Cir. 2009). As the conduct Plaintiff complaints about occurred prior to January 1, 2009, the Court will look to the pre-2009 version of the ADA, and the case law interpreting that version of the ADA, in analyzing Plaintiff's claims.
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3

Prior to starting her job with the Lowndes DFCS, Plaintiff worked for the F lo rid a Health Department. W h ile working for that agency in July of 2006, Plaintiff in ju re d her left ankle. Plaintiff saw a physician, but was released to return to work w ith o u t any restrictions. She was not assigned a disability rating from that injury. W h e n Plaintiff was hired by the Lowndes DFCS in April of 2007, her previous ankle in ju ry was completely healed. In June of 2007, Plaintiff reported to her supervisor, Patricia Parrish, that p ro lo n g e d standing and walking were causing a lot of pain in her left ankle, and that th e ankle was swollen. Plaintiff testified during her deposition that her ankle started h u rtin g because she had to stand, walk, and carry case files. August 7, 2007 was the firs t time Plaintiff went to see a doctor about her ankle while working at the Lowndes DFCS. A t her August 7, 2007 appointment at the Hughston Clinic with Kurt Jacobson, M .D . , Plaintiff was given certain work restrictions. Dr. Jacobson determined that P la in tiff could lift/carry/push/pull 10 to 25 pounds and could occasionally bend at w a is t level, kneel, squat, and stand, but Plaintiff was restricted from climbing and p ro lo n g e d standing for more than 30 minutes with 15 minute breaks. Plaintiff re tu rn e d to see Dr. Jacobson on September 25, 2007. At that time she was placed o n a restriction where she could not climb stairs and could not stand continuously fo r more than one hour. P la in tiff's next appointment with Dr. Jacobson was on November 13, 2007. T h e doctor's note from that visit states: "Please limit walking and standing." On
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November 27, 2007, Dr. Jacobson revised the work limitations to where Plaintiff c o u ld lift/carry/push/pull 10 to 25 pounds, but limited her to occasional standing and n o kneeling or squatting. No specific walking restriction was given at that time. P la in tiff was subsequently released to work with no restrictions by Dr. Jacobson on D e c e m b e r 11, 2007. A c c o rd in g to Plaintiff, she was prescribed a cane in February of 2008.4 In M a rc h of 2008, Plaintiff was also seeing C. Allen W o o d s , M.D., for her ankle.5 Dr. W o o d s saw Plaintiff on March 10, 2008, and on March 11, 2008, he released Plaintiff to return to regular duty work with no restrictions. Plaintiff subsequently underwent a physical capacities evaluation on March 2 4 , 2008. She was given an impairment rating of 9% to her lower extremity and 4% to her whole person. During the simulated work environment ability test given as part o f the evaluation, it was determined that Plaintiff could sit for four hours, stand for tw o hours, and walk for two hours each eight-hour work day with breaks every two t o three hours. Plaintiff was released to return to work by Dr. Jacobson on April 1, 2 0 0 8 , subject to the physical capacities evaluation restrictions. P la in tiff returned to see Dr. W o o d s on April 10, 2008, and he released her to re tu rn to work on April 14, 2008 with no restrictions. Dr. W o o d s next saw Plaintiff on

4

The Court is not aware of any document in the record showing a prescription for a cane.

5

Plaintiff claims in her affidavit in opposition to Defendant's Motion for Summary Judgment that she does not remember who Dr. Woods is, but according to her medical records, Plaintiff saw Dr. Woods at least five times over a three month period in 2008. Plaintiff has not challenged the authenticity of the medical records from Dr. Woods.
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April 18, 2008, and he released her to return to work on April 22, 2008 with no r e s t r ic t i o n s . Plaintiff saw Larry E. Smith, M.D., on April 21, 2008. No restrictions were g ive n , and Plaintiff was referred to physical therapy. Dr. Smith noted that Plaintiff "h a d functional impairment assessment done, and she was only found to have 9% im p a irm e n t in her lower extremity and 4% for the whole body." (emphasis added). P la in tiff returned to see Dr. Smith on May 8, 2008 for depression. No restrictions with re g a rd to walking were issued. P la in tiff was seen by Dr. W o o d s on May 8, 2008, and he released her to work o n May 19, 2008 with no restrictions. Plaintiff returned to see Dr. Smith on May 19, 2 0 0 8 with complaints of left ankle pain. No restrictions with regard to walking were is s u e d by Dr. Smith at that time. Plaintiff was next seen by Dr. W o o d s on May 19, a n d was released to work on May 27, 2008 with no restrictions. Dr. Smith completed a Certification of Serious Health Condition for Plaintiff on May 15, 2008, in which he re c o m m e n d e d "[l]ess climbing and bending and walking. Less stress." P la in tiff fell at work on June 11, 2008 and injured her neck and back. On June 1 6 , 2008, Plaintiff was released to return to light duty work by Valdosta Family M e d ic in e Associates, the workers' compensation provider who treated Plaintiff after h e r fall. Plaintiff was given restrictions of no lifting greater than five pounds, no b e n d in g or twisting at the waist, and no overhead reaching. She was also directed to use a neck splint. On June 19, 2008, Plaintiff received work restrictions from Dr. S m ith under which she was prohibited from reaching, bending or climbing. Plaintiff
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was also restricted to walking or standing for one hour in an eight-hour period. On J u ly 1, 2008, Plaintiff presented to Dr. Smith with complaints of neck pain. Dr. S m ith 's treatment plan was to start physical therapy, restrict Plaintiff's lifting to less th a n ten pounds, and restrict bending, reaching, walking, and standing. On August 2 0 , 2008, Dr. James Goss, Plaintiff's orthopedist, determined Plaintiff was unable to w o rk from that day until further notice. Dr. Goss released Plaintiff to return to m o d ifie d work duty on September 10, 2008. He stated that Plaintiff should "[l]imit w a lk in g and standing. Sedentary work only." In a footnote contained in her affidavit in opposition to the Motion for Summary J u d g m e n t, Plaintiff states she was "substantially limited in my ability to walk in that I could not walk more than 150 to 200 feet without needing to rest. I was walking with a cane in the late 2007, early 2008 time period." Plaintiff testified during her d e p o s itio n that her husband had to do their grocery shopping, and her sister had to h e lp her clean the house. On the other hand, while working for the Lowndes DFCS, P la in tiff did not have a handicapped sticker for her car. She never requested a s p e c ia l parking place close to the building. Plaintiff testified that she had trouble w a lk in g from the parking lot to the building, but that was because she had to carry c a s e files with her at times. Plaintiff also acknowledged that her ankle in fact im p ro ve d while working at the Lowndes DFCS. B a s e d on the evidence before it, the Court finds that Plaintiff did not suffer fro m a disability as defined by the Rehabilitation Act or ADA. It is Plaintiff's burden to establish that she is disabled, and she has not done so. There is no evidence as
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to the duration or expected duration of Plaintiff's impairment. Also, while Plaintiff te s tifie d by affidavit that she could only walk 150 to 200 feet before having to stop a n d rest, she does not state whether that limitation was during the relevant time p e rio d , and she never states how long she had to rest, whether she had to sit down a n d rest, or whether that involved walking with or without a cane. W h ile Plaintiff used a cane while working at the Lowndes DFCS, there is no evidence it was medically p re s c rib e d , and there is no evidence in the record of how often Plaintiff had to use th e cane during the relevant time period. Even assuming Plaintiff used a cane most o f the time, the evidence shows that Plaintiff could walk with the assistance of the c a n e , which mitigates her physical impairment. It is also telling that Plaintiff did not h a ve a handicapped parking pass during her employment with the Lowndes DFCS. T h e fact she has one now is irrelevant to the Court's analysis, as the relevant time p e rio d is when the alleged discrimination occurred. See Cash, 231 F.3d at 1306 n. 5 ("The fact that Cash was eventually hospitalized for depression in July and S e p te m b e r of 1998 is irrelevant to this case. The employment action that Cash is c o m p la in in g of occurred in late April and early May of 1998, and we evaluate her d is a b ility as manifested at that time.) Also important is the fact there is no evidence pointed to by Plaintiff to show th a t the impairment is permanent or will have a long term impact. Looking at P la in tiff's medical records, and in fact her own testimony, it is clear that her ankle im p ro ve d at times, to the point where she was on several occasions released to w o rk without any walking restrictions, or any work restrictions at all. None of
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Plaintiff's medical records indicate that the physical limitations would be long-term o r permanent, and at no time was Plaintiff ever given any permanent medical re s tric tio n s . Similar to the plaintiff in Plant v. Morton International, Inc., 212 F.3d 929 (6 th Cir. 2000), Plaintiff has not come forward with any evidence that her impairment is permanent, and the "mere possibility of recurrence is not sufficient to establish s u b s ta n tia l impairment." Id. at 938. F u rth e r, Plaintiff's impairment ratings weigh against a finding of a disability. P la in tiff was given a 9% impairment rating for her lower extremity and a 4% im p a irm e n t rating for her entire body. That degree of limitation does not rise to the le ve l of a substantial limitation. See Penny v. United Parcel Serv., 128 F.3d 408, 416 (6 th Cir. 1997) (a plaintiff with a 14% total body impairment who experienced d iffic u lty walking was not disabled under the ADA); Rogers v. Int'l Marine Terminals, I n c ., 87 F.3d 755, 759 (5th Cir. 1996) (a plaintiff who suffered from a permanent w h o le -b o d y impairment of 13% was not disabled under the ADA); Piascyk v. City of N e w Haven, 64 F.Supp.2d 19, 27 (D.Conn. 1999) (holding that even if the 20% im p a irm e n t in the plaintiff's leg and 10% in his back were aggregated and translated in to a 30% limitation on the plaintiff's ability to walk, that limitation did not rise to the re q u is ite level of substantiality to qualify as a disability under the ADA). A s Plaintiff has not shown that she was disabled with regard to her ability to w a lk during the time period when the alleged discrimination occurred, she is unable to make a prima facie case of discrimination under the Rehabilitation Act. It is not n e c e s s a ry for the Court to address whether Plaintiff was a qualified individual or
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discriminated against on the basis of her disability. Defendant is entitled to summary ju d g m e n t on Plaintiff's discrimination claim as relates to walking. 2. Lifting

In her response to Defendant's Motion for Summary Judgment, Plaintiff c o n te n d s that she was also substantially limited in the major life activity of lifting in th a t she had a ten-pound lifting restriction, which was subsequently reduced to five p o u n d s . The Eleventh Circuit has held a number of times that a limitation on a p e rs o n 's ability to lift things does not qualify as a substantial limitation for purposes o f the ADA. See Carr v. Publix Super Markets, Inc., 170 Fed. Appx. 57, 60-61 n. 3 (1 1 th Cir. 2006) ("[W ]e doubt that a lifting limitation states a per se ADA disability."); H illb u rn v. Murata Elec. N. Am., Inc., 181 F.3d 1220, 1227-28 (11th Cir. 1999) (p la in tiff's allegations of a disability based on a ten pound lifting restriction did not c re a te a prima facie case for a disability). E ve n assuming a lifting restriction qualifies as a substantial limitation, P la in tiff's lifting claim fails for another reason. Plaintiff has attempted to add the lifting c la im through her response to Defendant's Motion for Summary Judgment. The liftin g claim is not contained in her original complaint, and no attempt to amend the c o m p la in t was ever made. Plaintiff will not be permitted to raise the lifting claim for th e first time in her response brief, as this deprives Defendant of the proper notice o f the claim, as well as the opportunity to develop a defense. Gilmour v. Gates, M c D o n a ld & Co., 382 F.3d 1312, 1315 (11th Cir.2004) ("[P]laintiff may not amend h e r complaint through argument in a brief opposing summary judgment."); Iraola &
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CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1286 (11th Cir.2003) (claims not ra is e d in a complaint cannot be raised for the first time in plaintiff's response to d e fe n d a n t's motion for summary judgment). Accordingly, Defendant is entitled to s u m m a ry judgment on Plaintiff's discrimination claim as relates to lifting. 3. Working

A s previously noted, a "disability" for purposes of the Rehabilitation Act is d e fin e d as: "(A) a physical or mental impairment that substantially limits one or more m a jo r life activities of such individual; (B) a record of such an impairment; or (C) b e in g regarded as having such an impairment." 42 U.S.C. § 12102(1). Plaintiff c o n te n d s that Defendant regarded her as substantially limited in the major life a c tivity of working.6 A plaintiff may be "regarded as" disabled in two ways: "(1) a covered entity m is ta k e n ly believes that a person has a physical impairment that substantially limits o n e or more major life activities, or (2) a covered entity mistakenly believes that an a c tu a l, nonlimiting impairment substantially limits one or more major life activities." S u tto n , 527 U.S. at 489, 119 S.Ct. at 2149-50. To show that Defendant regarded P la in tiff as being substantially limited in her ability to work, Plaintiff must demonstrate th a t Defendant thought she was unable to perform "either a class of jobs or a broad ra n g e of jobs as compared to the average person having comparable training, skills

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Plaintiff does not argue that she is disabled under the first or second prongs of the disability test as relates to working. She only contends that Defendant regarded her as substantially limited in the activity of working. Thus, the Court will only address the third prong of the disability test.
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and abilities." Carruthers v. BSA Adver., Inc., 357 F.3d 1213, 1216 (11th Cir. 2004). T h is means Plaintiff must demonstrate not only that Defendant thought she was d is a b le d , but also that Defendant thought her disability would prevent her from p e rfo rm in g a broad class of jobs. Ross v. Campbell Soup Co., 237 F.3d 701, 709 (6 th Cir. 2001). It is not enough to show that Defendant thought Plaintiff could not p e r f o r m a single, particular job, nor is it sufficient if Plaintiff merely shows that D e fe n d a n t was aware of her impairment. Id. at 1216-17. Plaintiff points to one thing to support her argument that Defendant regarded h e r as unable to perform a class of jobs or a broad range of jobs - the fact that on J u n e 23, 2008, Defendant placed Plaintiff on Family and Medical Leave ("FMLA le a ve ") after Dr. Smith placed Plaintiff on a medical restriction under which she could o n ly walk one hour per day. There are two reasons why Plaintiff's "regarded as" th e o ry fails. i. Placing Plaintiff on FMLA leave

P la c in g an employee on FMLA leave does not mean that an employer regards th e employee as disabled for ADA purposes. "ADA's `disability' and FMLA's `serious h e a lth condition' are different concepts, and must be analyzed separately." 29 C.F.R. § 825.702(b). Further, "[t]he leave provisions of the [FMLA] are wholly distinct from th e reasonable accommodation obligations of employers covered under the ADA." 2 9 C.F.R. § 825.702(a). A number of courts have addressed the issue of whether an employer re g a rd e d an employee as disabled because FMLA leave was permitted or required.
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In Nealey v. W a te r District No. 1 of Johnson County, 324 Fed. Appx. 744, 749 (10th C ir. 2009), the plaintiff argued that the defendant regarded her as disabled in part b e c a u s e the defendant approved her FMLA leave requests. The Tenth Circuit held th a t approval of FMLA leave requests cannot in and of itself support an inference th a t the defendant regarded the plaintiff as disabled for ADA purposes. The Third C irc u it reached a similar result in Robinson v. Lockheed Martin Corp., 212 Fed. A p p x. 121, 125-26 (3d Cir. 2007), holding that the defendant's statement that the p la in tiff should apply for FMLA leave did not create a material issue of fact that the p la in tiff was regarded as significantly restricted in his ability to work. See also Berry v. T-Mobile USA, Inc., 490 F.3d 1211, 1218-19 (10th Cir. 2007) (holding that the d e fe n d a n t's approval of an FMLA leave request did not establish a question of fact a s to whether the defendant regarded the plaintiff as disabled); Levine v. Smithtown C e n t. Sch. Dist., 565 F.Supp.2d 407, 426 (E.D.N.Y. 2008) (holding that affording the p la in tiff a paid leave of absence did not indicate a perception that the plaintiff was s u b s ta n tia lly impaired in a major life activity); Ellis v. Mohenis Servs., Inc., No. Civ. A . 96-6307, 1998 W L 564478, at *5 (E.D. Pa. Aug. 24, 1998) (holding that even if the d e fe n d a n ts forced the plaintiff to take FMLA leave or believed taking such leave was p ro p e r under the circumstances, that was not evidence that the defendants regarded th e plaintiff as disabled, as "an employee who has a `serious health condition' for p u rp o s e s of the FMLA is not necessarily `disabled' under the ADA"). T h e Court finds an opinion authored by Judge Longstaff of the Southern D is tric t of Iowa to be particularly pertinent to this discussion. In Heyne v. HGI18

Lakeside, Inc., 589 F.Supp.2d 1119 (S.D. Iowa 2008), Judge Longstaff was faced w ith a case where a table games dealer at a casino suffered from chronic back pain. T h e plaintiff's doctor recommended that the plaintiff be restricted to standing for two h o u rs at a time with a period of one hour of sitting or resting in between periods of s t a n d in g . The defendant eventually informed the plaintiff that it was unwilling to a c c o m m o d a te the standing restrictions, and that he needed to be able to stand for a n entire eight-hour shift. The defendant placed the plaintiff on forced, unrequested m e d ic a l leave, and told him that he would have three months to be in a position to s ta n d up and deal as required. Id. at 1121-22. T h e plaintiff filed a lawsuit alleging disability discrimination and retaliation in vio la tio n of the ADA. Among other things, the plaintiff alleged that the defendant re g a rd e d him as being disabled. His only argument on that issue was that "the fo rc e d , unrequested placement of the Plaintiff on FMLA leave speaks volumes about th e attitude of the Defendant." Id. at 1125. In response to that statement, Judge L o n g s ta ff wrote: The Court fails to see why placing him on forced, u n re q u e s te d medical leave suggests that HGI regarded H e y n e as disabled. If anything, placing Heyne on medical le a ve suggests that HGI believed Heyne to be capable of p e rfo rm in g his assigned job responsibilities - i.e. to stand a n d deal for the majority of his shift - and that he simply n e e d e d time off to restore his health. Id. at 1125-26.

19

In a subsequent footnote, Judge Longstaff stated: This Court struggles to understand why an employer w o u ld place an employee on FMLA leave - a vehicle d e s ig n e d specifically to allow an employee to take time to re s to re his health, without penalty, to a point where he can a g a in perform his job again - if the employer regarded the e m p lo ye e as being disabled. The suggestion made by H e yn e appears to be that HGI knew that Heyne could n e v e r be able to stand and deal for his entire shift, and th e re fo re , HGI was constructively discharging him by p la c in g him on FMLA leave. Even if true, it does not e s ta b lis h that Heyne was "regarded" as disabled. W h ile s u c h actions may be regarded as insensitive or unfair, th e y do not establish that HGI mistakenly believed that H e y n e had a physical impairment that substantially limits o n e or more major life activities, or that HGI mistakenly b e lie ve d that an actual, non-limiting impairment s u b s ta n tia lly limits one or more major life activities. Id . at 1126 n. 10 (emphasis in original). The Court agrees with Judge Longstaff and the multitude of other courts who have determined that placing an employee on leave, or granting a request for leave, d o e s not mean that the employer regarded the employee as disabled. Here, as this is only evidence presented by Plaintiff regarding this claim, the Court is compelled to find that she has not met her burden of showing that Defendant regarded her as disabled with regard to her ability to work. Defendant is entitled to summary ju d g m e n t on Plaintiff's discrimination claim as relates to working. ii. Class or broad range of jobs

E ve n though the Court has already determined summary judgment on the w o rk in g claim is proper, the other reason Plaintiff's "regarded as" claim fails should b e mentioned. To meet the "regarded as" definition of disabled, Plaintiff must prove
20

that Defendant considered her "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the a ve ra g e person having comparable training, skills, and abilities." 29 C.F.R. § 1 6 3 0 .2 (j)(3 )(i). Plaintiff has referred the Court to no such evidence. In fact, the notice g ive n to Plaintiff advising her that she was being placed on FMLA leave refers only to her specific position and the fact that her medical restriction would prevent her fro m performing that job. There is no suggestion that Defendant viewed Plaintiff as in c a p a b le of performing a wider range of jobs than that of Error Control Specialist. The inability to perform that one job does not constitute a substantial limitation in the m a jo r life activity of working. Id. Plaintiff has failed to create a genuine issue of m a te ria l fact that Defendant perceived her to be disabled with regard to working, e n titlin g Defendant to summary judgment. See Bailey v. Georgia-Pacific Corp., 306 F .3 d 1162, 1170 (1st Cir. 2002) (holding that since the plaintiff adduced no evidence th a t his employer thought he was unfit for either a class or a broad range of jobs, his "re g a rd e d as" claim of disability failed). C. Retaliation

P la in tiff's final claim is a retaliation claim. The Rehabilitation Act incorporates th e ADA's anti-retaliation provision, which provides, "[n]o person shall discriminate a g a in s t any individual because such individual has opposed any act or practice m a d e unlawful by this chapter." See 29 U.S.C. §§ 791(g), 793(d), 794(d). This p ro v is io n is similar to Title VII's anti-retaliation provision, and the Court assesses R e h a b ilita tio n Act retaliation claims under the same framework used for Title VII
21

retaliation claims. Shannon v. Postmaster Gen. of U.S. Postal Serv., 335 Fed. Appx. 2 1 , 26 (11th Cir. 2009). Plaintiff contends she was retaliated against for filing two charges with the E E O C .7 She must first establish a prima facie case of retaliation. To do so, Plaintiff h a s to show that: (1) she engaged in statutorily protected expression; (2) she s u ffe re d an adverse employment action; and (3) there was some causal relationship b e tw e e n the two events. Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997). F ilin g an EEOC claim is a statutorily protected activity, Goldsmith v. Bagby Elevator C o ., Inc., 513 F.3d 1261, 1277 (2008), so the Court need only concern itself with the s e c o n d and third prongs of the retaliation test. For an action to be an adverse employment action, the plaintiff must show that a n ultimate employment decision was made, or must make some other showing of s u b s ta n tia lity . Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). An ultimate e m p lo ym e n t decision has been defined as those "such as termination, failure to hire, o r demotion." Id. (quoting Stavropoulous v. Firestone, 361 F.3d 610, 617 (11th Cir. 2 0 0 4 )). For conduct falling short of an ultimate employment decision, the conduct m u s t, in some substantial way, "alter[ ] the employee's compensation, terms, c o n d itio n s , or privileges of employment, deprive him or her of employment

7

Plaintiff also contends that her termination was in retaliation for engaging in protected activity. As discussed above, Plaintiff failed to exhaust her administrative remedies as to the termination claim prior to filing suit, and has not shown that she is entitled to equitable modification of that requirement. Thus, the Court will not discuss Plaintiff's termination as it relates to her retaliation claim.
22

opportunities, or adversely affect [ ] his or her status as an employee." Id. (quoting G u p ta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000)). W h e n defining the le ve l of substantiality required for a Title VII retaliation claim, the Eleventh Circuit d e te rm in e d that an employee must demonstrate she suffered "a serious and material c h a n g e in the terms, conditions, or privileges of employment" to show an adverse e m p lo ym e n t action. Id. at 971 (citing Stavropoulous, 361 F.3d at 617; Bass v. Bd. o f Cty. Comm'rs, Orange County, Fla., 256 F.3d 1095, 1118 (11th Cir. 2001); Gupta, 2 1 2 F.3d at 588; W id e m a n v. W a l-M a rt Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1 9 9 8 ); Benefield v. Fulton County, Ga., 130 Fed. Appx. 308 (11th Cir. 2005)). An a d ve rs e employment action is one that "clearly might deter a reasonable employee fro m pursuing a pending charge of discrimination or making a new one." Id. at 574. W ith regard to the causal relationship, a plaintiff has to demonstrate that the p r o t e c t e d activity and the adverse action are not completely unrelated. Higdon v. J a c k s o n , 393 F.3d 1211, 1220 (11th Cir. 2004). "A plaintiff satisfies this element if s h e provides sufficient evidence that her employer had knowledge of the protected e xp re s s io n and `that there was a close temporal proximity between this awareness a n d the adverse action.'" Burgos v. Napolitano, 330 Fed. Appx. 187, 190 (11th Cir. 2 0 0 9 ) (quoting Higdon, 393 F.3d at 1211 (quotation and ellipsis omitted)). If a plaintiff establishes a prima facie case of retaliation, the employer then has a n opportunity to articulate a legitimate, non-retaliatory reason for the challenged e m p lo ym e n t action. Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2 0 0 1 ) (citation omitted). "[T]o satisfy this intermediate burden, the employer need
23

only produce admissible evidence which would allow the trier of fact rationally to c o n c lu d e that the employment decision had not been motivated by discriminatory a n im u s ." Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997) (q u o ta tio n omitted). If the employer can show a legitimate, non-retaliatory reason for th e action, the burden shifts to the plaintiff to show by a preponderance of the e vid e n c e that the reason provided by the employer is a pretext for prohibited, re ta lia to ry conduct. Id. 1. N o ve m b e r 2007 Charge

P la in tiff filed her first discrimination charge on November 12, 2007 (the "N o ve m b e r 2007 Charge"), which she subsequently withdrew because it appeared D e fe n d a n t was going to accommodate her. Prior to filing the November 2007 C h a rg e , Plaintiff worked in the Food Stamps and Medicaid applications unit, where s h e was required to process both of those applications. In December 2007, Plaintiff w a s moved to a position where she took Medicaid applications only, a job that re q u ire d less walking than the dual application job. Plaintiff had no problems while in the Medicaid applications position, and contends that she told Ms. Parrish, her s u p e rvis o r, she wanted to remain in that position permanently as an

a c c o m m o d a tio n . However, Plaintiff was moved from the Medicaid applications unit b a c k to the Food Stamps and Medicaid applications unit in April of 2008. Shortly th e re a fte r, on May 7, 2008, Plaintiff was given a written Documentation of C o u n s e lin g because she contacted a specialist after Ms. Parrish documented an e rro r with regard to one of Plaintiff's cases and Plaintiff did not agree with Ms.
24

Parrish's assessment of her work.8 W h ile it is not completely clear from Plaintiff's re s p o n s e to Defendant's Motion, it appears Plaintiff contends that moving her back in to the Food Stamps and Medicaid applications unit and the May 7, 2008 D o c u m e n ta tio n of Counseling were both done in retaliation for the November 2007 C h a rg e . D e fe n d a n t argues that with regard to the November 2007 Charge, Plaintiff did n o t suffer an adverse employment action, or, in the alternative, there was no causal re la t io n s h ip between the protected expression and the employment action. The C o u rt agrees that Plaintiff has not met either of these prongs of the prima facie test. F o r an action to be an adverse employment action, the plaintiff must show that a n ultimate employment decision was made or make some other showing of s u b s ta n tia lit y. Crawford, 529 F.3d at 970. Further, to constitute an adverse e m p lo ym e n t action, the conduct must be such that it "clearly might deter a re a s o n a b le employee from pursuing a pending charge of discrimination or making a new one." Id. at 974. Here, Plaintiff filed a new EEOC charge on May 13, 2008, a fte r receiving the Documentation of Counseling and after being moved back into the F o o d Stamps and Medicaid applications unit. Clearly Plaintiff was not deterred from m a k in g a new charge of discrimination. As Plaintiff herself was not dissuaded from m a k in g a discrimination claim, the Court will not find that a reasonable employee w o u ld have been dissuaded from making a claim. See Shannon, 335 Fed. Appx. at 2 7 (the fact that the plaintiff filed his last two EEOC complaints after the alleged
8

That Documentation of Counseling was rescinded on June 18, 2008.
25

adverse action casted doubt on whether the actions were the sort that might have d is s u a d e d a reasonable worker from making a charge of discrimination); Burgos, 3 3 0 Fed. Appx. at 190 (holding that the defendant's actions were not materially a d ve rs e because the evidence showed that the plaintiff was not deterred in re in s t a t in g her EEOC claim); Glass v. Intel Corp., No. CV-06-1404, 2009 W L 6 4 9 7 8 7 , at *9 (D.Ariz. March 11, 2009) (holding that a reasonable worker would not h a ve been dissuaded from making a discrimination charge, as the plaintiff himself file d an EEOC charge only days after one of the allegedly retaliatory actions); M c W h ite v. New York City Hous. Auth., No. 05-cv-0991, 2008 W L 1699446, at *13 (E .D .N .Y . Apr. 10, 2008) (holding that the plaintiff's pursuit of an EEOC claim despite th e defendant's retaliatory actions indicated that plaintiff did not suffer a materially a d ve rs e action).9 A s for the causal relationship, Plaintiff has not shown a close temporal p ro xim ity between the November 2007 Charge and the employment actions. Plaintiff w a s moved from the Medicaid application position back to the Food Stamps and M e d ic a id application unit in April of 2008, five months after filing the November 2007 C h a rg e . She received the Documentation of Counseling in May of 2008, six months a fte r filing the November 2007 Charge. The Eleventh Circuit has held in a number o f cases that time periods less than or equal to five or six months do not meet the

9

The retaliation claim involving the November 2007 Charge also fails the "materially adverse" prong because Plaintiff has not shown that either the Documentation of Counseling or the move back to the Food Stamps and Medicaid application unit constituted or resulted in a serious and material change in the terms, conditions, or privileges of her employment. See Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1238 (11th Cir. 2001).
26

temporal proximity requirement for a retaliation claim. See Thomas v. Cooper L ig h tin g , Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (three-month period insufficient); D r a g o v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006) (three-month period in s u ffic ie n t); Sicilia v. United Parcel Serv., Inc., 279 Fed. Appx. 936, 940 (11th Cir. 2 0 0 8 ) (four-month period insufficient); Hammons v. George C. Wallace State Comm. C o ll., 174 Fed. Appx. 459, 464 (11th Cir. 2006) (five-month period insufficient); H ig d o n , 393 F.3d at 1221 (three-month period insufficient). Other circuit courts have re a c h e d similar conclusions. See Blume v. Potter, 289 Fed. Appx. 99, 106 (6th Cir. 2 0 0 8 ) (six-month period insufficient); Andreoli v. Gates, 482 F.3d 641, 650 (3d Cir. 2 0 0 7 ) (five-month period insufficient); Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (1 0 th Cir. 1997) (three-month period insufficient). A s Plaintiff has not established that she suffered an adverse employment a c tio n or shown a causal relationship between the protected activity and the e m p lo ym e n t action, she has not made a prima facie retaliation claim as relates to the N o ve m b e r 2007 Charge. Defendant is entitled to summary judgment on that re ta lia tio n claim. 2. M a y 2008 Charge

P la in tiff filed her second discrimination charge on May 13, 2008 (the "May 2 0 0 8 Charge"). On May 19, 2008, Plaintiff received a Memorandum of Concern and E xp e c ta tio n s from Defendant, which documented the following concerns: (1) "poor cu sto m e r service," "argumentative and inappropriate behavior," "failure to work when s c h e d u le d ," "failure to show the flexibility required of an Error Control Specialist," and
27

"resistance to supervision"; (2) two complaints from Hispanic customers that Plaintiff "le c tu re d them about being undocumented aliens when they were applying for b e n e fits for their children who are U.S. citizens"; (3) being argumentative with her s u p e rvis o rs about legitimate assignments which were within the requirements of her p o s itio n ; and (4) establishing a pattern of calling in sick when she was given a s s ig n m e n ts that she did not wish to perform, which caused "a serious detrimental e ffe c t on the operation of the department."1 0 The Memorandum of Concern was re p la c e d by a W ritte n Reprimand and Final W a rn in g dated May 27, 2008. The W ritte n Reprimand stated the following: (1) Plaintiff was "rude, intimidating, c o n d e s c e n d in g , judgmental, and unprofessional" with an undocumented Hispanic c lie n t who was legitimately applying for benefits for her children; (2) Plaintiff failed to get permission on April 17, 2008 to work overtime as instructed; (3) Plaintiff's e xc e s s ive absenteeism had a significant impact on the operation of the office; and (4 ) Plaintiff was establishing a pattern of argumentative behavior and resistance to s u p e rvis io n , including disagreeing with and challenging legitimate supervisory a s s ig n m e n ts .1 1 Plaintiff was placed on FMLA leave on June 23, 2008. W h ile it is a g a in not exactly clear, Plaintiff appears to contend that the Memorandum of C o n c e rn and W ritte n Reprimand, along with placing her on FMLA leave, were all

10

Plaintiff acknowledges receiving the Memorandum of Concern, but denies any of the complaints contained in it are valid. Plaintiff acknowledges receiving the Written Reprimand, but denies that any of the complaints in it are true.
28

11

done in retaliation for the May 2008 Charge.1 2 The Court will address the M e m o ra n d u m of Concern and W ritte n Reprimand first. i. Memorandum of Concern and Written Reprimand

D e fe n d a n t argues that the Memorandum of Concern and W ritte n Reprimand c o u ld not have been done in retaliation for the May 2008 Charge because those a c tio n s were contemplated prior to Plaintiff filing the charge. The Court agrees. The E le ve n th Circuit has established a rule in retaliation cases that "when an employer c o n te m p la te s an adverse employment action before an employee engages in p ro te c te d activity, temporal proximity between the protected activity and the s u b s e q u e n t adverse employment action does not suffice to show causation." Drago, 4 5 3 F.3d at 1308. Plaintiff relies on the fact that the Memorandum of Concern was is s u e d six days after she filed the May 2008 Charge to show causation. However, th e undisputed evidence shows that the complaints contained in the Memorandum o f Concern and W ritte n Reprimand were first discussed amongst Plaintiff's s u p e rvis o rs , Virginia Boswell, Patricia Parrish, and Joni Reece, and Dee Brooks, an e m p lo ye e relations analyst for Defendant, on May 1, 2008.1 3 The Memorandum of
12

W hile Plaintiff also contends that her termination was in retaliation for the May 2008 Charge, for the reasons previously discussed, that issue will not be addressed. Plaintiff states in her response to Defendant's statement of undisputed material facts that she is without knowledge as to whether Mss. Boswell, Parrish, and Reece contacted Ms. Brooks in May of 2008. Under Local Rule 56, "[t]he response that a party has insufficient knowledge to admit or deny is not an acceptable response unless the party has complied with the provisions of Rule 56(f) of the Federal Rules of Civil Procedure." Plaintiff has not complied with Rule 56(f), which means the statement of fact is admitted. In any event, there is an email in the record from Ms. Boswell to Ms. Brooks dated May 1, 2008 discussing the alleged problems with Plaintiff, and Plaintiff has not disputed the authenticity of that document.
29

13

Concern was actually drafted by Ms. Brooks and sent to Mss. Boswell, Parrish, and R e e c e for review on May 7, 2008. It appears Plaintiff did not receive the M e m o ra n d u m of Concern until May 19, 2008 because she was out on leave from M a y 8 until May 19, 2008.1 4 As the alleged adverse employment actions were clearly c o n te m p la t e d before the May 2008 Charge was filed, Plaintiff cannot establish a re ta lia tio n claim based on the Memorandum of Concern and W ritte n Reprimand. ii. Being placed on FMLA leave

D e fe n d a n t argues that Plaintiff's claim that Defendant placed her on FMLA le a ve in retaliation for filing the May 2008 Charge fails because placing Plaintiff on F M L A leave does not constitute an adverse employment action. Upon review of the e vid e n c e with regard to Plaintiff's FMLA leave, the Court cannot agree with D e fe n d a n t. A s discussed above, an adverse employment action for purposes of a Title VII re t a lia t io n claim is one that alters, among other things, the employee's c o m p e n s a tio n . Gupta, 212 F.3d at 588. The notice given to Plaintiff on June 23, 2 0 0 8 informing her she was being placed on FMLA leave states: T h e re fo re , due to your serious health condition, you are b e in g placed on family and medical leave as of the close

14

The Supreme Court has also held that "[e]mployers need not suspend previously planned [adverse employment actions] upon discovering [protected activity]." Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272, 121 S.Ct. 1508, 1511 (2001) (holding that if, after discovering protected activity, an employer proceeds "along lines previously contemplated, though not definitely determined," its actions are not evidence of causality). Thus, even assuming Defendant received notice of the May 2008 Charge prior to giving Plaintiff the Memorandum of Concern on May 19, 2008, Defendant was not required to abandon its decision to give the Memorandum and subsequent Written Reprimand to Plaintiff.
30

of business on 6/23/2008. Your leave balances at close of b u s in e s s on 6/23/2008, are .467 hours of sick leave, and 5 hours of annual leave. If you wish to use paid leave in c o n ju n c tio n with family leave, you will need to submit a re q u e s t detailing the type of leave you wish to use. For a n y portion of this period in which you qualify for family le a ve , but do not have paid leave time available, you will b e placed on family and medical leave without pay. (D o c . 30-26, p. 4). W h e n Plaintiff was put on FMLA leave, she had less than one day's worth of p a id leave available to her. Thus, she was in effect put on leave without pay. Other c o u rts have held that requiring an employee to take leave without pay could be c o n s id e re d an adverse employment action as it directly affects the employee's c o m p e n s a tio n . See, e.g.,Tysinger v. Police Dept. of City of Zanesville, 463 F.3d 569, 5 7 3 (6th Cir. 2006) (holding that the district court was correct in determining that p la in tiff was subjected to an adverse employment decision when the defendant re q u ire d her to take an extended leave of absence, partly without pay); Andrews v. T h e Geo Group, Inc., No. 06-cv-00844, 2007 W L 3054967, at *6 (D. Colo. Oct. 18, 2 0 0 7 ); Kinsey v. City of Jacksonville, No. 3:01CV785, 2005 W L 3307211, at * 8 (M .D . Fla. Dec. 6, 2005), aff'd 189 Fed. Appx. 860 (11th Cir. 2006); Knight v. C o m p u te r Sci. Raytheon, No. 6:00CV1563ORL28DAB, 2002 W L 32818520, at *14 (M .D . Fla. Oct. 25, 2002) (noting that "being placed on . . . unpaid medical leave can b e considered [an] adverse employment action, . . . "). The Court agrees with the re a s o n in g of these courts, and finds that under the circumstances present in this

31

case, placing Plaintiff on FMLA leave could be considered an adverse employment a c tio n .1 5 A s Plaintiff has established a prima facie case of retaliation relating to being p la c e d on FMLA leave,1 6 Defendant now has to articulate a legitimate, nonre ta lia to ry reason for the challenged employment action. Pennington, 261 F.3d at 1 2 6 6 . If Defendant meets that burden, Plaintiff must show by a preponderance of the e vid e n c e that the reason provided by the employer is a pretext for prohibited, re ta lia to ry conduct. Id. Defendant states that Plaintiff was placed on FMLA leave because it could not a c c o m m o d a te her medical restrictions. At the time Plaintiff was placed on FMLA le a ve , she was working in the Food Stamp and Medicaid applications unit. Plaintiff h a d been moved back to that unit because the Lowndes DFCS had four uncovered c a s e lo a d s in that unit, and part of Plaintiff's job as an Error Control Specialist was to assist with uncovered caseloads. Defendant determined that the medical re s tric tio n which allowed Plaintiff to only walk for one hour per day would prevent her
15

In no way is the Court establishing a rule that every time an employee is placed on leave, that action constitutes an adverse employment action. Like all inquiries related to Title VII cases, such a decision must be based on the specific facts of the case before the Court, and because Plaintiff was placed on leave when she had less than one day's worth of paid leave available, the Court believes an adverse employment action has been shown. By filing an EEOC charge, Plaintiff engaged in statutorily protected expression. As discussed above, Plaintiff suffered an adverse employment action when Defendant placed her on FMLA leave. Finally, the approximately six-week period between the filing of the May 2008 Charge and Defendant placing Plaintiff on FMLA leave is short enough to establish a causal relationship between the two events. See Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171-72 (10th Cir. 2006) (in a FMLA retaliation case, an adverse action within six weeks of protected action was close enough in time to establish the causal connection element of a prima facie case).
32

16

from performing the essential functions of her job as an Error Control Specialist, and p u t her on FMLA leave. Further, Plaintiff also had a restriction under which she n e e d e d "less stress," and the only way to accommodate that restriction was to put P la in tiff on FMLA leave. Defendant has articulated legitimate, non-discriminatory reasons for placing P la in tiff on leave. Now Plaintiff must show that these were merely pretexts for u n la w fu l retaliation. Plaintiff may avoid summary judgment and show pretext directly b y persuading the Court that a discriminatory reason more likely motivated D e fe n d a n t, or indirectly by showing that Defendant's proffered explanation is u n w o rth y of credence. See Combs, 106 F.3d at 1528. In this case, Plaintiff has not s h o w n pretext directly or indirectly. She has presented no evidence that her c o m p la in ts of discrimination played any part in the decision to place her on FMLA le a ve . Instead, it appears that Defendant's decision to put Plaintiff on leave was b a s e d on records from Plaintiff's physicians stating that she had a limited ability to w a lk and needed less stress overall. Plaintiff has directed the Court to nothing with re g a rd to the FMLA leave that would allow a reasonable jury to conclude there was a n y connection between the May 2008 Charge and placing Plaintiff on FMLA leave. D e fe n d a n t is entitled to summary judgment on the retaliation claim relating to the M a y 2008 Charge and the FMLA leave.

33

IV.

CONCLUSION F o r the reasons discussed above, the Court finds that Defendant is entitled

to summary judgment on all of Plaintiff's claims. The Motion for Summary Judgment (D o c . 30) is granted.

S O ORDERED, this the 8th day of November, 2010.

/s / Hugh Lawson HUGH LAWSON, SENIOR JUDGE

m bh

34