Hartman v. Lafourche Parish Hospital Service District No. 1 et al
ORDER AND REASONS granting in part Defendants' 34 Motion for Summary Judgment; denying as moot Plaintiff's 36 Motion for Partial Summary Judgment. All of Plaintiff's claims under the ADA and LEDL are DISMISSED WITH PREJUDICE. Defendants' affirmative defenses of failure to mitigate, estoppel and waiver, and substantial control are DISMISSED AS MOOT. Signed by Judge Jane Triche Milazzo. (ecm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LAFOURCHE PARISH HOSPITAL, ET AL.
ORDER AND REASONS
Before the Court is Defendants’ Motion for Summary Judgment (Doc. 34)
and Plaintiff’s Motion for Partial Summary Judgment (Doc. 36).
following reasons, Defendants’ Motion is GRANTED IN PART, and Plaintiff’s
Motion is DENIED AS MOOT.
This is an action under the Family Medical Leave Act (“FMLA”), the
Americans with Disabilities Act (“ADA”) and the Louisiana Employment
Discrimination Law (“LEDL”). In July 2014, Plaintiff Christine Hartman was
hired as a medical staff coordinator for Defendant Lafourche Parish Hospital
Service District No. 1 d/b/a Lady of the Sea General Hospital (“LOSGH”) under
the supervision of Defendant Bennie Smith. In August 2015, Plaintiff took
eight weeks of FMLA leave to undergo a major surgical procedure.
November 2015, she requested additional FMLA leave to care for her husband
who had been diagnosed with cancer and renal failure. Smith initially denied
this request, mistakenly believing that Plaintiff could not take FMLA leave for
two different qualifying events in the same year.
Plaintiff to work a flexible schedule.
However, she allowed
In February 2016, Plaintiff again
requested FMLA leave to care for her husband as he underwent a stem cell
transplant. This request was granted, and she took leave from February 24,
2016 to April 26, 2016. Plaintiff was terminated immediately upon her return.
Smith cited mistakes in paperwork and poor performance as the reason for
Plaintiff’s termination. Plaintiff brings claims for FMLA interference, FMLA
retaliation, ADA discrimination, and ADA and LEDL retaliation.
Defendants have moved for summary judgment seeking dismissal of all
of Plaintiff’s claims.
Plaintiff has moved for partial summary judgment
seeking dismissal of certain of Defendants’ affirmative defenses. This Court
will consider each argument in turn.
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” 1 A genuine issue
Fed. R. Civ. P. 56(c) (2012).
of fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” 2
In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in his favor. 3 “If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.” 4 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.” 5 “In response to a
properly supported motion for summary judgment, the non-movant must
identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
sustain a finding in favor of the non-movant on all issues as to which the nonmovant would bear the burden of proof at trial.” 6 “We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the
necessary facts.” 7 Additionally, “[t]he mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.” 8
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).
4 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
5 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
6 John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir. 2004) (internal citations omitted).
7 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
8 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
LAW AND ANALYSIS
Defendants’ Motion for Summary Judgment
Defendants seek dismissal of Plaintiff’s claims for FMLA interference,
FMLA retaliation, ADA discrimination, and ADA and LEDL retaliation. 9
Plaintiff alleges that Defendants interfered with her right to FMLA leave
when they denied her second request to take FMLA leave to care for her
husband in November 2015. The FMLA allows an employee to take reasonable
leave for medical reasons or to care for a family member and prohibits an
employer from interfering with, restraining, or denying the exercise or attempt
to exercise FMLA rights. 10
To establish a prima facie interference case,
Plaintiff must show that (1) she was an eligible employee, (2) Defendant was
an employer subject to the FMLA’s requirements, (3) she was entitled to leave,
(4) she gave proper notice of the intent to take FMLA leave, (5) Defendant
denied the benefits to which she was entitled under the FMLA, and (6) she was
prejudiced. 11 Interference claims do not require a showing of discriminatory
Defendants allege that Plaintiff cannot succeed on her FMLA
interference claim because she cannot show prejudice. Defendants allege that
despite denying her second FMLA request, Smith allowed Plaintiff to work a
flexible schedule so that she could attend medical appointments with her
Although Defendants argue for dismissal of an ADA harassment claim and failure
to accommodate claim, Plaintiff states that she has not asserted either claim.
10 29 U.S.C. §§ 2601, 2615.
11 Lanier v. Univ. of Texas Sw. Med. Ctr., 527 Fed. Appx. 312, 316 (5th Cir. 2013).
12 Jones v. Children’s Hosp., 58 F.Supp.3d 656, 668 (E.D.La. 2014).
Plaintiff admitted that her husband never missed a medical
appointment and that she did not have to hire a caretaker to care for her
husband despite the denial of FMLA leave.
Plaintiff alleges that she suffered prejudice because, despite allowing her
a flexible schedule, Smith piled work on Plaintiff right before she intended to
leave to bring her husband to the doctor and then “wrote up” Plaintiff for
passing her work off to a co-worker. This disciplinary action was then taken
into consideration as a “history of work performance issues” when she was
ultimately terminated. Plaintiff argues that had she been on FMLA leave as
she had requested, she would not have been disciplined. Accordingly, this
Court holds that there is a material issue of fact as to whether Plaintiff suffered
prejudice when her second FMLA leave request was denied and specifically
whether the “write ups” that she alleges occurred as a result of her more
flexible schedule contributed to her ultimate termination. 13
request for summary judgment on this claim is denied.
Plaintiff alleges that she was fired in retaliation for taking FMLA leave.
“In order to establish a prima facie case of retaliation under the FMLA, the
employee must show the following: 1) he was protected under the FMLA; 2) he
suffered an adverse employment action; and 3) he was treated less favorably
See Alexander v. Carolina Fire Control Inc., 112 F. Supp. 3d 340, 350 (M.D.N.C.
2015) (“[I]n considering the steps Plaintiff would have taken had Defendant not allegedly
discouraged her from taking FMLA leave, there is sufficient evidence to create a dispute of
fact as to whether Plaintiff would have still experienced any alleged communication
shortcomings that are alleged to have resulted in her ultimate termination”); Felder v.
Edwards, 2016 WL 7668477, at *3 (S.D. Miss. May 31, 2016) (stating that plaintiff was
prejudiced when she was terminated for excessive absences after being denied FMLA leave).
than an employee who had not requested leave under the FMLA or the adverse
decision was made because he sought protection under the FMLA.” 14
Retaliation claims under the FMLA are analyzed under the
McDonnell Douglas burden-shifting framework. . . . If a plaintiff
establishes a prima facie case of retaliation, the burden shifts to
the employer to provide a ‘legitimate, non-discriminatory reason
for the employment decision.’ If the employer articulates a
legitimate, non-discriminatory reason for the employment
decision, the burden returns to the plaintiff, who must then be
afforded an opportunity to rebut the employer’s purported
explanation with evidence that the reason given is merely
Defendants argue that Plaintiff cannot show that their legitimate, nonretaliatory reason for her termination—poor performance—is pretext.
Defendants argue that Smith had identified problems with Plaintiff’s job
performance even before she took her first FMLA leave of absence in August
2015. Defendants allege that Smith held a coaching session with Plaintiff in
June 2015, and she continued to receive low performance scores at her
evaluation in October 2015. During Plaintiff’s second leave of absence, another
employee, Kristina Hebert, was asked to take over her job duties. Defendants
allege that Hebert identified numerous errors in Plaintiff’s work, prompting
Smith to conduct a review of Plaintiff’s work.
Smith testified that she
discovered more than 100 errors in Plaintiff’s work and decided to fire her
while she was on her second FMLA leave of absence because of these errors.
Mauder v. Metro. Transit Auth. of Harris Cty., Tex., 446 F.3d 574, 583 (5th Cir.
Garcia v. Penske Logistics, L.L.C., 631 Fed.Appx. 204, 210 (5th Cir.2015) (internal
Smith waited until Plaintiff returned from FMLA leave to terminate her
employment so that Plaintiff would not lose benefits during that time.
Plaintiff’s version of events, on the other hand, varies wildly. Plaintiff
alleges that while she was on leave, Smith reviewed her work in order to find
a reason to terminate her. She alleges that Smith felt that Plaintiff’s leave had
put her “in a bind.” Plaintiff identifies the following evidence of pretext:
1) Smith failed to follow hospital policy in choosing to terminate
Plaintiff. The termination policy, which Smith wrote, required that
Smith seek consent of the CEO before firing an employee. Smith
admitted that Plaintiff was the only person she could recall firing
without the CEO’s consent. 16
2) Plaintiff argues that prior to her initial FMLA leave of absence she
received high evaluations, despite what Defendants have alleged. 17
She alleges that when she returned from her initial leave of absence
she received a lower evaluation. She alleges that Smith then began
to “write her up” more frequently.
She alleges that Smith was
engaged in a “campaign of constant fault-finding.”
3) Plaintiff alleges that she was treated less favorably than other
For instance, she offers evidence that her co-worker,
Rhonda Parr, twice inadvertently purged three-years-worth of
employee evaluations from hospital’s system. Parr offered to resign
See Hamilton v. AVPM Corp., 593 F. App’x 314, 321 (5th Cir. 2014) (“Although an
employer’s failure to follow its own policies may be probative of discriminatory intent, we
require discharged employees in discrimination cases to show, in addition, that they were
treated differently from non-minority employees.”).
17 See Reason 5.
but was discouraged from doing so.
Plaintiff alleges that Parr’s
mistakes were worse than any of the errors attributed to Plaintiff, yet
Parr was not terminated. In addition, while reviewing Plaintiff’s
work during her absence, Hebert informed Smith that she had made
some of the same mistakes as Plaintiff. Hebert was not disciplined. 18
4) Plaintiff alleges that Smith made derogatory remarks about her
leave, stating that she had left her “in a bind.” Plaintiff argues that
Smith “chewed her out” for crying at work when she learned of her
husband’s cancer diagnosis and criticized her for talking about him.
5) Plaintiff argues that the evidence indicates that Smith has attempted
to create a paper trial to support her explanation of events. She
argues that the written denial of her second FMLA request has
mysteriously gone missing, and the remarks regarding the June 2015
coaching session in which Smith alleges she discussed Plaintiff’s poor
performance were not added to Plaintiff’s employee record until
around the time of her termination. In addition, Smith’s explanation
of the meeting has changed from “training on a new process” to
“discussing Plaintiff’s errors.”
6) Plaintiff correctly points out that temporal proximity between FMLA
leave and an employee’s termination can be evidence of pretext. 19
See Jordan v. Ector Cty., 516 F.3d 290, 300 (5th Cir. 2008) (“A reasonable jury could
conclude that the reasons given for Jordan’s termination were pretextual. Other employees,
including the previous Clerk, engaged in similar conduct without being disciplined.”).
19 Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007)
(“[T]emporal proximity alone, when very close, can in some instances establish a prima facie
case of retaliation.”).
Plaintiff was terminated within hours of returning to work from her
second FMLA leave.
7) Plaintiff argues that Smith’s explanation for why she was terminated
and why Smith failed to seek the CEO’s consent are amorphous and
Certainly, Plaintiff has more than carried her burden to show a material
issue of fact as to whether Defendants’ legitimate non-discriminatory reason is
pretext. Defendants submit an army of arguments disputing the above
assertions of pretext, all of which simply serve to create more issues of fact.
Any one of the aforementioned reasons might have been enough to warrant a
denial of summary judgment. Accordingly, Defendants’ request for summary
judgment on Plaintiff’s FMLA retaliation claim is denied.
ADA Associational Disability Discrimination
Plaintiff next alleges that she was terminated because of her husband’s
illness or disability. “The Fifth Circuit has not explicitly recognized a cause of
action for discrimination based on association with a handicapped individual,
nor [has it] described what such a claim requires. . . . District courts within this
Circuit have, however, recognized a cause of action for associational
discrimination.” 20 These district courts apply the following test, adopted from
the Tenth Circuit, to analyze an associational disability discrimination cause
(1) the plaintiff was “qualified” for the job at the time of the adverse
(2) the plaintiff was subjected to adverse employment action;
Grimes v. Wal-Mart Stores Texas, L.L.C., 505 F. App’x 376, 380 (5th Cir. 2013).
(3) the plaintiff was known by his employer at the time to have a
relative or associate with a disability;
(4) the adverse employment action occurred under circumstances
raising a reasonable inference that the disability of the relative or
associate was a determining factor in the employer’s decision. 21
“If the plaintiff in an ADA ‘association discrimination’ case can establish these
four elements, then the burden shifts to the defendant to proffer a legitimate,
nondiscriminatory reason for the adverse employment action. Once such a
reason is proffered, the burden shifts back to the plaintiff to show that the
employer’s stated reason is pretextual.” 22 Defendants argue that Plaintiff
cannot establish a prima facie case because she cannot show that (1) she was
qualified for her job in light of her performance issues and (2) that her
husband’s disability was a determining factor in her termination.
As to the first argument, this Court agrees with Plaintiff that the
standard for determining whether a party is “qualified” for a job should not
consider job performance. The Fifth Circuit has said that the fact that a
plaintiff “was hired initially indicates that he had the basic qualifications”
provided that, at the time of the adverse action, he had not “suffered physical
disability or loss of a necessary professional license or some other occurrence
that rendered him unfit for the position for which he was hired.” 23 Here, there
is no suggestion that Plaintiff had failed to maintain the basic qualifications of
her position. Rather, Defendants argue that her performance issues and poor
Moresi ex rel. Moresi v. AMR Corp., No. CA 3:98-CV-1518-R, 1999 WL 680210, at *3
(N.D. Tex. Aug. 31, 1999).
22 Den Hartog v. Wasatch Acad., 129 F.3d 1076, 1085 (10th Cir. 1997).
23 Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1506 (5th Cir. 1988); see Berquist
v. Washington Mut. Bank, 500 F.3d 344, 350 (5th Cir. 2007).
reviews made her unqualified for the position. In making this argument,
Defendants cite to Sreeram v. Louisiana State University Medical CenterShreveport, in which the court held that the plaintiff was not qualified for her
position as a medical resident because she had received only negative reviews
from every doctor that evaluated her. 24 Such is not the case here; Plaintiff
received several positive reviews during her employment. 25
Second, Plaintiff points to evidence that she argues creates a reasonable
inference that her husband’s disability was a determining factor in her
termination. Plaintiff argues that her husband was a covered beneficiary on
the LOSGH health plan for which Smith was the plan administrator. She
alleges that Smith made comments regarding increased premiums because of
his care and the care of another employee with cancer. She also alleges that
Smith insisted that her husband have kidney dialysis at LOSGH in order to
save the hospital money.
The parties agree that Plaintiff must show that her husband’s disability
was a but for cause of her termination. 26 The court finds these instances too
tenuous and circumstantial to establish a prima facie case of disability
discrimination. Plaintiff does not show that Smith had any discriminatory
animus toward her husband because of his disability or that she made any
negative comments regarding his illness. 27 The facts set forth above do not
Sreeram v. Louisiana State Univ. Med. Ctr.-Shreveport, 188 F.3d 314, 318 (5th Cir.
1999) (“Every doctor to evaluate Dr. Sreeram found that her performance as a surgeon was
insufficient to allow her to continue in the program.”).
25 See Eastin v. Entergy Corp., 42 So. 3d 1163, 1194 (La. App. 5 Cir. 2010).
26 See Crossley v. City of Coshocton, No. 2:13-CV-804, 2015 WL 1247005, at *8 (S.D.
Ohio Mar. 18, 2015).
27 See Spinks v. Trugreen Landcare, L.L.C., 322 F. Supp. 2d 784, 796 (S.D. Tex. 2004).
create a reasonable inference that Plaintiff’s husband’s disability was a factor
in Plaintiff’s termination especially in light of her arguments that her requests
for FMLA leave were the reason for her termination. Accordingly, Plaintiff’s
associational disability discrimination claim is dismissed.
ADA and LEDL Disability Discrimination
Plaintiff next brings a claim for disability discrimination, alleging that
she was denied the opportunity to work overtime because of her own
disability—her ovarian cysts and hysterectomy. Defendants argue, however,
that Plaintiff cannot show that she was disabled under the terms of the ADA. 28
The ADA defines a “disability” as “a physical or mental impairment that
substantially limits one or more major life activities 29 of such individual; a
record of such an impairment; or being regarded as having such an
impairment.” 30 The Code of Federal Regulations defines “physical or mental
disfigurement, or anatomical loss affecting one or more body systems, such as
neurological, musculoskeletal, special sense organs, respiratory (including
immune, circulatory, hemic, lymphatic, skin, and endocrine.” 31
See 42 U.S.C. § 12112(a).
See 42 U.S.C. § 12102(2) (“(A) For purposes of paragraph (1), major life activities
include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, and working. (B) For purposes of paragraph (1), a
major life activity also includes the operation of a major bodily function, including but not
limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder,
neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”).
30 See 42 U.S.C. § 12102(1).
31 29 C.F.R. § 1630.2.
Plaintiff argues that her ovarian cysts made it difficult to sit for long
periods of time, caused back pain, and required more frequent bathroom trips.
She ultimately had a hysterectomy to remove the cysts. Plaintiff also admits,
however, that she was released to full work duty by her doctor when she
returned to work after her hysterectomy. Accordingly, when she requested to
work overtime after her husband became ill, she was no longer experiencing
any limitations and the source of her pain had been removed. Plaintiff cannot
then show that she had a physical impairment which limited a major life
activity under the terms of the ADA at the time of the adverse employment
action. Plaintiff’s ADA and LEDL discrimination claims are dismissed. 32
ADA and LEDL Retaliation
Plaintiff alleges that Defendants retaliated against her in violation of
her rights under the ADA and LEDL in two ways: (1) they refused her request
to work overtime in anticipation of her request for additional leave to care for
her husband; and (2) they canceled her husband’s COBRA insurance after she
filed a charge of discrimination with the EEOC.
In order to establish a prima facie case of retaliation under the ADA, a
plaintiff must show that:
(1) she participated in an activity protected under the statute; (2)
her employer took an adverse employment action against her; and
(3) a causal connection exists between the protected activity and
the adverse action. If the employee establishes a prima facie case,
the burden shifts to the employer to state a legitimate, nonretaliatory reason for its decision. After the employer states its
Tribble v. Ouachita Par. Police Jury, 939 F. Supp. 2d 626, 629–30 (W.D. La. 2013)
(“The Fifth Circuit has held that claims brought under LEDL are analyzed using the same
framework and precedent as the ADA claims, leading to the same result.”).
reason, the burden shifts back to the employee to demonstrate that
the employer’s reason is actually a pretext for retaliation. 33
In her first allegation of retaliation, Plaintiff alleges that her request for
FMLA leave was a request for accommodation under the ADA and that the
denial of the opportunity to work overtime was in retaliation of that protected
activity. The Fifth Circuit has, however, unequivocally held that “a request for
FMLA leave is not a request for a reasonable accommodation under the
ADA.” 34 Accordingly, Plaintiff cannot show that she engaged in a protected
activity, and her ADA retaliation claim on this ground is dismissed.
In her second allegation of retaliation, Plaintiff alleges that Defendants
retaliated against her for filing an EEOC charge of discrimination and lawsuit
by canceling her husband’s COBRA insurance. Plaintiff filed an EEOC charge
in May 2016 and then filed suit in October 2016. She learned in February 2017
that her husband’s COBRA insurance had been canceled. Even assuming that
Plaintiff could establish a prima facie case on this claim, she has presented no
evidence that Defendants’ legitimate, non-discriminatory reason is pretext.
Defendants explain that Plaintiff mistakenly sent her premium payments
directly to LOSGH instead of to GILSBAR, the hospital’s COBRA
This mistake caused a delay in payment that jeopardized
COBRA coverage. Smith addressed the situation immediately and restored
coverage on the day that she learned of the issue. Plaintiff has not submitted
Feist v. Louisiana, Dep’t of Justice, Office of the Atty. Gen., 730 F.3d 450, 454 (5th
34 Acker v. Gen. Motors, L.L.C., 853 F.3d 784, 791 (5th Cir. 2017).
any evidence that this explanation is pretext for retaliation. Accordingly,
Plaintiff’s discrimination claims under the LEDL and ADA are dismissed.
Plaintiff’s Partial Motion for Summary Judgment
Plaintiff seeks dismissal of three of Defendants’ affirmative defenses: (1)
failure to mitigate damages, (2) estoppel and waiver, and (3) the argument that
Smith did not exercise “substantial control” over Plaintiff’s work.
Failure to Mitigate Damages
Defendants have identified Plaintiff’s failure to mitigate damages as an
affirmative defense. Under the ADA, a plaintiff suing for back pay “has a duty
to mitigate his damages by using reasonable diligence to obtain substantially
equivalent employment.” 35
In deciding Defendants’ Motion for Summary
Judgment above, this Court dismissed all of Plaintiff’s claims under the ADA.
Accordingly, such an affirmative defense is unnecessary, and Plaintiff’s
request for its dismissal is moot.
Waiver and Estoppel
Defendants have agreed to withdraw these affirmative defenses.
However, they seek to reserve the right to challenge Plaintiff’s ability to
establish a prime facie case on her claims “because she is unable to
demonstrate that she was qualified for her job in light of her poor work
performance.” 36 This Court has already held above, however, that Plaintiff
was qualified for her job and that her job performance is not a relevant factor
U.S. E.E.O.C. v. IESI Louisiana Corp., 720 F. Supp. 2d 750, 754 (W.D. La. 2010).
Doc. 38, p.8.
in such a determination.
Accordingly, Defendants’ affirmative defense
regarding Plaintiff’s qualification is dismissed.
Defendants have agreed to withdraw this affirmative defense.
For the foregoing reasons, Defendants’ Motion for Summary Judgment
is GRANTED IN PART. All of Plaintiff’s claims under the ADA and LEDL are
DISMISSED WITH PREJUDICE.
Plaintiff’s Motion for Partial Summary
Judgment is DENIED AS MOOT. Defendants’ affirmative defenses of failure
to mitigate, estoppel and waiver, and substantial control are DISMISSED AS
New Orleans, Louisiana this 7th day of August, 2017.
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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