Rhodes v. Comcast Cable Communcations Management, LLC

Filing 65

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 8/17/2016. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
RYLINDA RHODES,

:

Plaintiff,

:

v.

:
Civil Action No. GLR-14-1824

COMCAST CABLE COMMUNICATIONS
MANAGEMENT, LLC,

:
:

Defendant.
:
MEMORANDUM OPINION
THIS MATTER is before the Court on Defendant’s, Comcast
Cable

Communications

Management,

LLC

(“Comcast”),

Motion

for

Summary Judgment (ECF No. 48) and Motion in Limine to Exclude
the Affidavits of Karen Davis and Kirby Duffy (ECF No. 49).
Motions are ripe for disposition.

The

Having reviewed the Motions

and supporting documents, the Court finds no hearing necessary
pursuant to Local Rule 105.6 (D.Md. 2014).

For the reasons

outlined below, the Court will deny the Motion in Limine and
deny in part and grant in part the Motion for Summary Judgment.
I.

BACKGROUND1

Comcast employed Plaintiff Rylinda Rhodes, a female, from
May 2007 to August 1, 2012.

At all times relevant to this

matter, Rhodes was employed as a dispatch representative (also

1

Unless otherwise noted, the following facts are taken from
the parties’ briefings on the instant Motions, and are viewed in
the light most favorable to the nonmoving party.

referred to as “dispatcher”).

In 2009, Rhodes began working in

Comcast’s Network Operations Center (“NOC”) in Silver Spring,
Maryland.

Upon

dispatchers

on

her
her

arrival,
team

used

she

noticed

vulgar

that

the

language,

male

including

profanity, and described various sexual acts and women’s body
parts.

Some male dispatchers took pictures of her and other

female employees’ breasts and used a smartphone application to
manipulate the size of the breasts in the photos.

Rhodes

repeatedly complained to her supervisor, Tim Glass, about the
vulgar language, but he assured her that her male coworkers’
unprofessional

language

would

stop.

Despite

Rhodes’s

complaints, the behavior continued.
In 2010, Comcast consolidated its regional NOCs and created
two NOCs for its mid-Atlantic operations, one in Millersville,
Maryland and the other in Richmond, Virginia.

Around April

2010, Comcast transferred Rhodes and the other dispatchers on
her team to the Millersville NOC.

Rhodes noticed that the male

dispatchers’ behavior persisted and she continued to complain to
her

supervisors

about

their

vulgar

language,

which

included

describing sexual acts and calling female customers “bitches.”
Despite her complaints, the language continued.

In May 2010,

Rhodes began applying for different jobs at Comcast.
From June 18, 2010 to October 17, 2010, Rhodes left work on
short-term

disability

leave.

On
2

June

23,

2010,

Rhodes

was

admitted

into

Washington

Adventist

Hospital,

diagnosed

with

bipolar disorder, and began an intensive outpatient program on
June

24,

permitted

2010.
her

On
to

October

return

13,

to

2010,

work

Rhodes’s

part-time

physician

with

possible

discharge from the outpatient program.
In March or April 2011, Rhodes complained to Glass about
her coworkers’ behavior, and Glass merely stated “what do you
want me to do? They are set in their ways.”
168, ECF No. 54-2).

(Rhodes Dep. at

Rhodes obtained intermittent FMLA leave

from April 10, 2011 to April 9, 2012.

On June 14, 2011, Rhodes

applied for a supervisor position in the Millersville NOC, but
was rejected for the position.

Rick O’Leary, a supervisor in

the Millersville NOC, informed Rhodes that she would not be
considered for the position because she was on FMLA leave.
In summer 2011, Rhodes informed her supervisor Laura Kelley
that

she

had

bipolar

disorder

and

had

weekly

meetings

Kelley regarding her male coworkers’ use of vulgar language.

with
In

August 2011, Rhodes emailed Quentin Sa’Lay in Comcast’s human
resources department, stating she made several complaints about
unprofessional behavior.

Also, in or around August 2011, one of

Rhodes’s coworkers, Michael Davis, grabbed her breasts.

Rhodes

did not immediately report this incident.
Due

to

the

stress

and

anxiety

caused

by

her

working

environment, Rhodes obtained short-term disability leave from
3

September 21, 2011 to January 1, 2012.
work,

she

again.

confronted

Davis

and

told

When she returned to

him

never

to

touch

her

Rhodes was then absent from work on January 8, 9, 22,

23, 26, 29, and 31, 2012.

In late January or early February

2012, Davis stated to Rhodes, while looking at her breasts, “I
missed them girls.”

(Rhodes Dep. at 212-13).

Rhodes was then

absent from work on February 15, 16, 18, and 21, 2012.
On February 22, 2012, Kelley sent out an email to Rhodes
and

her

coworkers

requesting

that

they

refrain

from

using

profanity at work because the human resources department was
alerted to the subject matter of their conversations.

Rhodes’s

last day of work was February 29, 2012, when she went on shortterm disability leave from March 1 to May 19, 2012.
On May 22, 2012, Rhodes’s insurance company informed her
that her medical records confirmed that was no longer considered
unable to perform her job and she was released to return to work
effective May 20, 2012.

On May 22, 2012, Rhodes contacted Lori

Llewellyn, a leave of absence consultant at Comcast, stating she
would

submit

a

certification

from

her

healthcare

provider

substantiating her need for medical leave from May 20, 2012.
On May 22, 2012, Rhodes met with Sa’Lay and informed him
that she could not return to the Millersville NOC due to the
vulgar

language

and

sexual

conversations

overheard and the incident involving Davis.
4

she

repeatedly

Sa’Lay put Rhodes

in

contact

with

Tyra

Franklin,

the

human

representative assigned to the Millersville NOC.

resources
On May 29,

2012, Rhodes met with Franklin to discuss the vulgar language
and incident with Davis.

Franklin informed Rhodes that Comcast

would investigate her complaints and the workplace environment
would

improve.

Rhodes

stated

she

would

not

return

to

the

Millersville NOC because the environment was detrimental to her
health.

Franklin then instructed Rhodes to apply for other

positions
qualified.

within

Comcast

for

which

she

believed

she

was

Rhodes requested that she be reassigned to another

location or placed in another position comparable to her current
position as a dispatcher.
On May 30, 2012, Glass sent an email to various supervisors
in the Millersville NOC, including Kelley, stating they must
ensure that they maintain a professional environment and keep
the employees’ personal conversations minimal and appropriate.
He further stated that some of Rhodes’s complaints to the human
resources department were accurate.
Nanette

Winder,

instructed

an

Franklin

employee
to

“Interactive ADA process.”

Also,

engagement

have

on May 30, 2012,

advisor

Rhodes

complete

at

Comcast,
Comcast’s

(ECF No. 54-24).

In June 2012, Franklin offered Rhodes a dispatcher position
in the Richmond NOC, but Rhodes refused to accept the offer
because Comcast would not pay for Rhodes’s relocation expenses.
5

Rhodes also refused to return to the Millersville NOC.

On June

1, 2012, Winder began an investigation into Rhodes’s complaints.
On June 4, 2012, Rhodes again complained to Winder about the
inappropriate language and touching that she experienced in the
Millersville NOC.

On June 29, 2012, Llewellyn mailed Rhodes a

letter stating that if she did not submit a certification form
from her healthcare provider by July 6, 2012, Comcast would
assume that she was no longer interested in remaining employed
and terminate her.
On July 3, 2012, Winder concluded that Rhodes’s complaints
about Davis could not be substantiated.

Winder told Rhodes the

results of the investigation and that she was expected to return
to work at the Millersville NOC because Comcast was taking steps
to improve the office’s environment.

Rhodes then stated that

she would never return to the Millersville NOC because she did
not feel safe there and she would not accept the position in the
Richmond NOC because Comcast would not pay for her relocation
expenses.
On July 6, 2012, Rhodes again complained to Winder about
the

sexual

language

Millersville NOC.

and

misconduct

that

occurred

in

the

On July 9, 2012, Winder again directed Rhodes

to return to work at the Millersville NOC immediately.

On July,

11, 2012, Toni Ekeh, a human resources representative, informed
Winder that a termination letter for Rhodes would be drafted.
6

On July 13, 2012, the human resources department circulated an
office etiquette document in the Millersville NOC addressing its
expectations
2012,

for

Comcast

appropriate

terminated

office

Rhodes’s

behavior.

On

employment

August

because

of

1,
her

health and because she refused to return to work.
The

following

aforementioned

facts

are

in

dispute:

1)

whether Rhodes made any complaints regarding vulgar and sexual
language prior to May 2012; 2) whether Comcast terminated Rhodes
because of her health; and 3) whether any employees used vulgar
or sexual language in the NOCs.
On June 25, 2012, Rhodes filed a charge of discrimination
with the United States Equal Employment Opportunity Commission
(“EEOC”).

(ECF No. 1).

On March 11, 2014, Rhodes received a

right to sue notice from the EEOC.

(Id.).

On June 6, 2014,

Rhodes initiated this action against Comcast, alleging hostile
work environment and retaliation in violation of Title VII of
the

Civil

Rights

Act

of

1964

(“Title

VII”),

as

amended,

42

U.S.C. §§ 2000e et seq. (2012) (Counts I–II); discrimination,
wrongful

discharge,

and

retaliation

in

violation

of

the

Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§
12101 et seq. (Counts III-V);

interference and retaliation in

violation of the Family and Medical Leave Act of 1993 (“FMLA”),
as amended, 29 U.S.C. §§ 2601 et seq. (2012) (Counts VI–VII);
and discrimination, wrongful discharge, and retaliation under
7

the Maryland Human Relations Act, referred to as the Maryland
Fair

Employment

Practices

Act

(“FEPA”),

Md.Code

Ann.,

Gov’t §§ 20-601 et seq. (West 2016) (Counts VIII–XII).
On August 4, 2014, Comcast filed an Answer.

State

(Id.).

(ECF No. 9).

On August 31, 2015, Comcast filed Motions for Summary Judgment
and in Limine.

(ECF Nos. 48, 49).

Rhodes filed Oppositions to the Motions.

On September 17, 2015,
(ECF Nos. 54, 55).

On

October 13, 2015, Comcast filed Replies to the Oppositions.2
(ECF Nos. 62, 63).
II.

DISCUSSION

A. Standard of Review
Under Rule 56(a), the Court must grant summary judgment if
the moving party demonstrates there is no genuine issue as to
any material fact, and the moving party is entitled to judgment
as a matter of law.

In reviewing a motion for summary judgment,

the Court views the facts in a light most favorable to the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

2

In the Motion in Limine, Comcast requests that the Court
exclude the affidavits of Karen Davis and Kirby Duffy because
Rhodes improperly disclosed the affiants during discovery and
did not submit the affidavits until after the close of
discovery. (ECF No. 49). On July 21, 2015, the Court extended
the deadline for both parties to complete discovery to July 24,
2015.
(ECF No. 39).
On July 22, 2015—before the close of
discovery—Rhodes supplemented her responses to Comcast’s request
for interrogatories and listed both Davis and Duffy as
individuals with personal knowledge of the facts alleged in the
Complaint. (ECF No. 55-1). The Court will, therefore, deny the
Motion and provide Comcast with thirty days to conduct
depositions of Davis and Duffy.
8

255 (1986) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144,
157 (1970)).

Once a motion for summary judgment is properly

made and supported, the opposing party has the burden of showing
that a genuine dispute exists.

Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
“[T]he
between

the

mere

existence

parties

will

of

some

not

defeat

alleged
an

factual

otherwise

dispute
properly

supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.”
at 247-48.

Anderson, 477 U.S.

A “material fact” is one that might affect the

outcome of a party’s case.

Id. at 248; see also JKC Holding Co.

v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.
2001) (citing Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th
Cir. 2001)).

Whether a fact is considered to be “material” is

determined by the substantive law, and “[o]nly disputes over
facts

that

governing

might
law

judgment.”

affect

will

the

properly

outcome
preclude

of

the

the

suit

entry

under
of

the

summary

Anderson, 477 U.S. at 248; accord Hooven-Lewis, 249

F.3d at 265.

9

B. Analysis
1. Title VII3
a. Hostile Work Environment
Title

VII

provides

that

“[i]t

shall

be

an

unlawful

employment practice for an employer . . . to fail or refuse to
hire

or

to

discriminate

discharge
against

any

any

individual,

individual

with

or

otherwise

respect

to

to
his

compensation, terms, conditions, or privileges of employment,
because

of

such

national origin.”
To

individual’s

race,

color,

religion,

sex,

or

42 U.S.C. § 2000e-2(a)(1).

prove a claim for hostile work environment based on

sexual harassment, a plaintiff must show “that the offending
conduct (1) was unwelcome, (2) was based on her sex, (3) was
sufficiently severe or pervasive to alter the conditions of her
employment and create an abusive work environment, and (4) was
imputable to her employer.”

Ocheltree v. Scollon Prods., Inc.,

335 F.3d 325, 331 (4th Cir. 2003) (citing Spicer v. Va., Dep’t
of Corr., 66 F.3d 705, 710 (4th Cir. 1995)).

3

“FEPA is the state law analogue of Title VII and its
interpretation is guided by federal cases interpreting Title
VII.”
Finkle v. Howard Cty., 12 F.Supp. 3d 780, 784 (D.Md.
2014) (citing Haas v. Lockheed Martin Corp., 914 A.2d 735, 742
(Md. 2007)).
The Court will, therefore, use its Title VII
analysis as its analysis for Rhodes’ FEPA claims in Counts VIII
(hostile work environment) and IX (hostile work environment
retaliation).
10

When determining whether the conduct was based on sex, the
crucial issue is “whether members of one sex are exposed to
disadvantageous

terms

or

conditions

of

employment

members of the other sex are not exposed.”
Oncale

v.

(1998)).

Sundowner

Offshore

Servs.

Inc.,

to

which

Id. at 331 (quoting
523

U.S.

75,

80

A gender-based hostile work environment exists when a

woman is subjected to sexual advances, she is the individual
target of open hostitlity because of her sex, or harassed in
sex-specific and derogatory terms.
omitted).

Id. at 331-32 (citations

Gender-related conduct also includes a plaintiff’s

“co-workers’

discussions

about

sexual

practices.”

Mineta, 547 F.3d 220, 227 (4th Cir. 2008).

Ziskie

v.

Notably, the Court

may consider gender-based conduct not directed at the plaintiff
when evaluating a hostile work environment claim because all
circumstances are examined.

Id. at 224.

“Evidence of a general

atmosphere of hostility toward those of the plaintiff’s gender
is considered in the examination of all the circumstances.”

Id.

at 224-25 (quoting Jennings v. Univ. of N.C., 482 F.3d 686, 696
(4th Cir. 2007)).
Further, a plaintiff must show that “the environment would
reasonably

be

perceived,

abusive.”

Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264,

277 (4th Cir. 2015).
hostile

or

abusive

and

is

perceived,

as

hostile

or

“Whether the environment is objectively
is

‘judged
11

from

the

perspective

of

a

reasonable person in the plaintiff’s position.’”
Oncale, 523 U.S. at 81).

Id. (quoting

Courts also make this determination by

looking at all the circumstances, including “the frequency of
the

discriminatory

conduct;

physically

threatening

utterance;

and

or

whether

its

severity;

humiliating,

it

or

unreasonably

employee’s work performance.”

whether
a

mere

it

is

offensive

interferes

with

an

Boyer-Liberto, 786 F.3d at 277

(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
“[S]imple
incidents

teasing,

(unless

discriminatory
employment.”
(1998)

extremely

changes

in

comments,

serious)
the

and

will

terms

not

isolated
to

conditions

and

amount

of

Faragher v. City of Boca Raton, 524 U.S. 775, 788

(citation

complaints

off-hand

omitted).

attacking

‘the

This

standard

ordinary

filters

tribulations

“out

of

the

workplace, such as the sporadic use of abusive language, genderrelated jokes, and occasional teasing,’” Ocheltree, 335 F.3d at
333 (quoting Faragher, 524 U.S. at 788), while protecting women
from

the

kind

of

male

attention

that

makes

“the

workplace

hellish for women,” id. (quoting Baskerville v. Culligan Int’l
Co., 50 F.3d 428, 430 (7th Cir. 1995)).
Extremely serious isolated incidents are those which amount
“to

a

change

in

Faragher,

524

U.S.

harassing

conduct,

the
at
the

terms

and

788.

“In

status
12

of

conditions

of

measuring

the

the

harasser

employment.”
severity
may

be

of
a

significant

factor—e.g.,

‘a

supervisor’s

use

of

[a

racial

epithet] impacts the work environment far more severely than use
by co-equals.’”

Boyer-Liberto, 786 F.3d at 278 (quoting Rodgers

v. W.-S. Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993)).
“The status of the harasser also is relevant to element
four of a hostile work environment claim, which necessitates
proof that the harassment is imputable to the employer.”

Id.

“[W]here an employee is sexually harassed by a coworker, the
employer may be liable in negligence if it knew or should have
known about the harassment and failed to take effective action
to stop it.” Ocheltree, 335 F.3d at 333–34 (quoting Spicer, 66
F.3d at 710).
Comcast
evidence
vulgar

of

argues
a

that

hostile

language

was

Rhodes

work

not

has

failed

environment

directed

to

because

towards

her;

present

any

the

disputed

the

disputed

conduct only involved her co-workers, but no supervisors; and
she did not promptly inform Comcast of the disputed conduct.
Rhodes has testified that, in 2009, her male co-workers often
discussed
women’s

sexual

acts

breasts.

She

and

women’s

stated

they

body

parts,

took

pictures

particularly
of

women’s

breasts in the office and used a smartphone application to alter
the size and shape of the breasts in the pictures.

She further

testified that one of her male co-workers took a picture of her
breasts.

Also, Rhodes testified that a male co-worker, Davis,
13

touched her breasts and, after she told him never to touch her
again, commented that he “missed them girls,” in reference to
her breasts.
Rhodes also testified that her male co-workers would refer
to Comcast customers as “bitches.”

While the derogatory term

was not directed toward her, the United States Court of Appeals
for the Fourth Circuit has repeatedly rejected the notion that
only

conduct

directed

at

the

plaintiff

may

Ziskie, 547 F.3d. at 224-25 (citing cases).

be

considered.

Rhodes presents an

affidavit from Karen Davis, a former Comcast employee, stating
Comcast employees located in Silver Spring and Millersville NOCs
made sexual jokes, including jokes about the size of her breasts
and

propositioned

affidavit
stating

from

her

her

Kirby

for

sex.

Duffy,

co-workers

in

Rhodes

another
both

NOC

former

also

includes

Comcast

locations

an

employee,

used

sexually

explicit language, made jokes about her sex life, and described
customers as “bitches.”
Rhodes testifies, and Davis and Duffy declare, that their
supervisors were made aware of the gender-related language used
in the NOCs, but failed to take any action to stop it.
testifies

that

she

informed

Comcast

of

her

Rhodes

co-workers’

statements in 2009 when she complained to Glass and in 2010 and
2011

when

she

complained

to

Glass

and

Kelley.

Ms.

Davis

declares that one supervisor laughed at the sexual jokes and
14

remarks and another supervisor made a sexual proposition towards
her.

Duffy declares the supervisors were aware of the sexual

language

in

the

circumstances,
demonstrate

a

workplace.

Rhodes
hostile

has

When

considering

presented

work

sufficient

environment

all

of

evidence

based

on

the
to

sexual

harassment imputable to Comcast.
Comcast, however, presents evidence that it was unaware of
the

gender-based

testified

that

harassment.

Rhodes

never

Glass,
made

any

Franklin,

and

complaints

Kelley

about

coworkers’ use of sexual language or sexual advances.

her

Franklin

testified that Rhodes only began to make such complaints on May
21, 2012, when she complained to Sa’Lay, and May 29, 2012, when
she complained to Franklin.

Glass and Sa’Lay testified that

vulgar or offensive language was never used in the Millersville
NOC.

Franklin

testified

that

Comcast’s

investigation

demonstrated that gender-related comments were never made in the
workplace

and

Rhodes’s

complaint

about

Davis

touching

her

breasts was unsubstantiated.
Because

of

the

contradictory

evidence

presented

by

both

parties, the Court finds that there is a genuine dispute as to
whether a hostile work environment existed in this matter.

The

Court will, therefore, deny the Motion for Summary Judgment as
to this claim.

15

b. Retaliation
Title VII prohibits discrimination against an employee in
retaliation for opposing an employer’s illegal discrimination
practices or participating in Title VII enforcement proceedings.
42

U.S.C.

§

2000e-3(a).

A

plaintiff

must

establish

a

retaliation claim under the “burden-shifting” scheme set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807 (1973).
See Vicino v. Maryland, 982 F.Supp.2d 601, 613 (D.Md. 2013)
(“Claims of retaliation are governed by the same proof schemes
applicable to Title VII discrimination claims, except that proof
of

retaliation

requires

but-for

causation;

the

mixed-motive

analysis is inapplicable to retaliation claims.” (citing EEOC v.
Navy Fed. Credit Union, 424 F.3d 397, 405–06 (4th Cir. 2005))).
To

support

a

claim

for

retaliation,

a

plaintiff

must

demonstrate: (1) “that [s]he engaged in a protected activity,”
(2) “that the employer took an adverse action against h[er],”
and

(3)

“that

a

causal

relationship

existed

between

protected activity and the employer’s adverse action.”

h[er]

Baqir v.

Principi, 434 F.3d 733, 747 (4th Cir. 2006) (citing Price v.
Thompson, 380 F.3d 209, 212 (4th Cir. 2004)).

A plaintiff first

bears the burden of proving a prima facie case of discrimination
by a preponderance of the evidence.
v.

Burdine,

450

U.S.

248,

252-53
16

Tex. Dep’t of Cmty. Affairs
(1981).

If

a

plaintiff

successfully presents a prima facie case, the burden shifts to
the

employer

to

provide

a

justification for its action.
411 U.S. at 802).
the

plaintiff

legitimate,
Id.

nondiscriminatory

(citing McDonnell Douglas,

Finally, if the employer carries its burden,

must

show

that

the

employer’s

legitimate,

nondiscriminatory reason is merely a pretext for discrimination.
Id. (citing McDonnell Douglas, 411 U.S. at 804).
A protected activity includes opposing unlawful employment
practices that “discriminate against any individual with respect
to

his

compensation,

terms,

conditions,

or

privileges

of

employment, because of such individual’s race,” including the
maintenance of a sexually hostile work environment.

42 U.S.C. §

2000e-2(a)(1); accord Pitter v. Cmty. Imaging Partners, Inc.,
735 F.Supp.2d 379, 395 (D.Md. 2010).

Title VII protects the

right

their

of

employees

“to

complain

to

suspected violations of [the statute].”

superiors

about

Bryant v. Aiken Reg’l

Med. Ctrs., Inc., 333 F.3d 536, 543–44 (4th Cir. 2003).
Though it is not necessary that an employee’s underlying
hostile

work

environment

claim

be

meritorious

in

order

to

succeed on a retaliation claim, see Ross v. Commc’ns Satellite
Corp., 759 F.2d 355, 357 n.1 (4th Cir. 1985), abrogated on other
grounds by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the
employee must have an objectively reasonable belief that she is

17

opposing an unlawful employment practice, see Navy Fed. Credit
Union, 424 F.3d at 406.
Further,

“[a]

causal

connection

for

purposes

of

demonstrating a prima facie case exists where the employer takes
adverse

employment

action

against

an

learning of the protected activity.”
Ctrs.,

Inc.,

193

F.App’x

Price, 380 F.3d at 213).

229,

233

employee

shortly

after

Pascual v. Lowe’s Home
(4th

Cir.

2006)

(quoting

Temporal proximity between the adverse

employment action and the employer’s knowledge of the protected
activity “gives rise to a sufficient inference of causation to
satisfy the prima facie requirement.”

King v. Rumsfeld, 328

F.3d 145, 151 (4th Cir. 2003) (citing Williams v. Cerberonics,
Inc., 871 F.2d 452, 457 (4th Cir. 1989)).

“Where the time

between the events is too great to establish causation based
solely

on

temporal

proximity,

[however],

a

plaintiff

must

present ‘other relevant evidence . . . to establish causation,’
such

as

‘continuing

intervening period.”

retaliatory

conduct

and

animus’

in

the

Perry v. Kappos, 489 F.App’x 637, 643 (4th

Cir. 2012) (quoting Lettieri v. Equant Inc., 478 F.3d 640, 650
(4th Cir. 2007)).
It is disputed whether Rhodes complained about the use of
sexually-charged language in the Silver Spring and Millersville
NOCs before May 2012.

Between

September

2009 and September

2011, Rhodes applied to and was rejected for seven positions
18

with

Comcast.

The

temporal

proximity

of

Rhodes’s

disputed

complaints and Comcast’s failure to hire her for one of the
seven positions gives rise to an inference of causation.
Though

Rhodes’s

pre-2012

complaints

undisputed that in May, June,

and July

are

disputed,

it

is

2012, she complained

about her co-workers’ sexually-charged language and being groped
by

Davis.

After

Rhodes’s employment.

the

2012

complaints,

Comcast

terminated

The temporal proximity between Rhodes’s

last undisputed complaints of sexual harassment on July 6, 2012
and

her

termination

on

inference of causation.4

August

1,

2012,

gives

rise

to

an

See King, 328 F.3d at 151 n.5 (finding

that a two-and-a-half month gap between protected activity and
an

adverse

employment

action

was

sufficiently

narrow

to

establish the causation prong of the prima facie case solely on

4

Though Rhodes’s Complaint includes claims that Comcast
terminated her because of her health and because she used FMLA
leave, the Court notes that “the McDonnell Douglas framework has
long demanded proof at the pretext stage that retaliation was a
but-for cause of a challenged adverse employment action.”
Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 252 (4th
Cir. 2015) (emphasis added). Remarkably, neither party makes any
mention of
the
McDonnell Douglas
burden-shifting scheme.
Neither party discusses whether Comcast had a legitimate nondiscriminatory reason for failing to hire Rhodes for the various
positions she applied to and for ultimately terminating her.
Likewise, neither party discusses pretext.
Because Comcast
simply moves for judgment by arguing that no dispute exists as
to whether Rhodes has presented a prima facie claim for Title
VII retaliation, the Court will not address the remaining steps
of the McDonnell Douglas standard.
19

the basis of temporal proximity).

The Court will, therefore,

deny Comcast’s Motion as to this claim.5
2. ADA6
a. Discrimination and Failure to Accommodate
The

ADA

discriminate

provides
against

a

that

“[n]o

qualified

covered

individual

entity

on

the

shall

basis

of

disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation,
job training, and other terms, conditions, and privileges of
employment.”

42 U.S.C. § 12112(a).

To prove a failure to

accommodate claim, a plaintiff must show: “(1) that [she] was an
individual

who

had

a

disability

within

the

meaning

of

the

statute; (2) that the employer had notice of [her] disability;
(3) that with reasonable accommodation [she] could perform the
essential functions of the position; and (4) that the employer
refused to make such accommodations.”

5

Jacobs v. N.C. Admin.

The Court will also deny the Motion as to Rhodes’s FEPA
claims in Counts VIII (hostile work environment) and IX (hostile
work environment retaliation).
6
FEPA prohibits the same unlawful discrimination as the
ADA. See Lewis v. Univ. of Md., Balt., No. SAG-12-298, 2012 WL
5193820, at *4 n. 3 (D.Md. Oct. 18, 2012) (“Maryland courts have
used interpretations of the ADA for guidance when the ADA is
substantially similar to the Maryland code at issue.” (citing
Ridgely v. Montgomery Cty., 883 A.2d 182, 193 (Md.Ct.Spec.App.
2005))). The Court will, therefore, use its ADA analysis as its
analysis for Rhodes’ FEPA claims in Counts X (disability
discrimination),
XI
(failure
to
accommodate),
and
XII
(disability retaliation).
20

Office of the Courts, 780 F.3d 562, 579 (4th Cir. 2015) (quoting
Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013)).
i. “Disabled”
The ADA defines a disability as: “(A) a physical or mental
impairment

that

activities

of

substantially
such

limits

individual;

one

(B)

a

or

more

record

major
of

life

such

an

impairment; or (C) being regarded as having such an impairment.”
42 U.S.C.
alia,

§ 12102(1).

“caring

for

Major life activities include,

oneself,

performing

manual

tasks,

inter

seeing,

hearing, eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking,
communicating,
presents

and

evidence

disorder—a

working.”
that

recognized

she

Id.
has

mental

been

§

12102(2)(A).
diagnosed

impairment

substantially limit major life activities.7

7

Rhodes

with

bipolar

which

could

See

Thompson v.

Rhodes states in her Complaint that her mental impairments
of depression and anxiety substantially limited her ability to
eat, sleep, walk, stand, sit, breath, speak, learn, read,
concentrate, think, communicate, interact with others, and work.
Rhodes, however, presents no evidence that she had difficulty
eating,
walking,
sitting,
standing,
breathing,
speaking,
learning, reading, thinking, or interacting with others.
Additionally, though Comcast presents evidence that it
never received any certification forms from her health care
provider substantiating her medical condition from March 2012 to
August 2012, it is disputed that Comcast had notice of Rhodes’s
mental impairment.
Rhodes testifies that she informed Yolanda
Jackson, Laura Kelley, and Tony Ekh, Sr. of her disorder in 2011
and 2012. (ECF No. 54-12).
21

Wakefern Food Corp., No. CV RDB-15-1240, 2015 WL 9311972, at *6
(D.Md. Dec. 23, 2015).
To be substantially limited in her ability to work, Rhodes
must show her mental impairment precluded her “from more than
one type of job, a specialized job, or a particular job of
choice.” Pollard v. High’s of Balt., Inc., 281 F.3d 462, 471
(4th Cir. 2002) (quoting Sutton v. United Air Lines, Inc., 527
U.S. 471, 491–92 (1999)).
broad range of jobs.”

Id.

She must show she cannot work “in a
“The inability to perform a single,

particular job does not constitute a substantial limitation in
the major life activity of working.” Metro v. Lewis Gale Clinic,
No. 7:01CV00936, 2002 WL 32833260, *3 (W.D.Va. Apr. 26, 2002)
(quoting 29 C.F.R. § 1630.2(j)(3)(i) (2016)).
In this case, Rhodes has not met her burden of establishing
that her mental impairment substantially limits her ability to
work.

Rhodes does not present any evidence of her inability to

perform several types of jobs.

In fact, Rhodes applied, and

sought Comcast’s assistance in applying, to various positions at
Comcast in several locations, including the Millersville NOC.
(See ECF No. 54-10).

Also,

Rhodes explicitly

testified:

“I

applied to any and all positions. Anything that would get me out
of the Millersville dispatch location that I was at that was
causing me all the problems.”

(Rhodes Dep. 235:12-15).

Rhodes

“has not shown, as required, that she is generally foreclosed
22

from jobs utilizing her skills” because of her bipolar disorder.
Rhoads v. F.D.I.C., 257 F.3d 373, 388 (4th Cir. 2001).

At most,

Rhodes has demonstrated an inability to work in the particular
group of dispatch representatives in the Millersville NOC.8
Next, Rhodes argues that she has demonstrated a record of a
disability.

(ECF Nos. 48-12, 48-21, 54-15, 54-17).

The medical

records state her disorder required partial hospitalization and
intensive outpatient treatment, and permitted her to work parttime (ECF No. 54-15); and her disorder was considered a chronic
condition that required her intermittent absence from work from
April 10, 2011 to April 9, 2012 (ECF No. 54-17).
also

reflects

that

Rhodes

effective May 20, 2012.
Because

Rhodes

was

released

to

The record

return

to

work

(ECF No. 48-10).

argues

Comcast

discriminated

against

her

from late May 2012 to August 1, 2012—after she was medically
able

to

return

to

work—by

failing

8

to

fulfill

her

requested

Though
Rhodes
contends
her
bipolar
disorder
has
substantially
limited
other
major
life
activities
like
concentrating and thinking, she does not provide any evidence
distinguishing her limitations from the general population. See
29 C.F.R. § 1630.2(j)(1)(ii) (2016) (“An impairment is a
disability within the meaning of [the ADA] if it substantially
limits the ability of an individual to perform a major life
activity
as
compared
to
most
people
in
the
general
population.”).
The Court also notes, Rhodes repeatedly
testified that these limitations were triggered and aggravated
solely by her workplace environment—namely, the disputed hostile
work environment based on sexual harassment. (See, e.g., Rhodes
Dep. 55: 8-16; 58:1-7; 59:2-6; 59:21-60:5; 93:5-10; 124:1-5,
148:2-4; 151:20-153:3; 164:11-20;173:3-174:13; 206:13-21; 233:27;235:11-15).
23

accommodations of employing her in another position in Comcast
or paying for her relocation to Richmond and by terminating her,
Rhodes has failed to demonstrate a record of disability at the
time

of

concludes

the

alleged

that

Rhodes

discrimination.
has

failed

to

The

Court,

sufficiently

therefore,
demonstrate

that she was actually disabled or had a record of disability
under the Act.9
ii. Failure to Reasonably Accommodate
Even
disabled

assuming
under

the

Rhodes
ADA,

could

she

demonstrate

cannot

demonstrate

failed to reasonably accommodate her disability.
accommodation

may

include

“job

9

that

restructuring,

that

she

was

Comcast

A reasonable
part-time

or

Rhodes does not argue that Comcast regarded her as
disabled under the Act.
To satisfy this definition of
disability, Rhodes must demonstrate that Comcast mistakenly
believed she had a mental impairment that substantially limited
her ability to concentrate, communicate, or work.
Reynolds v.
Am. Nat. Red Cross, 701 F.3d 143, 153 (4th Cir. 2012) (quoting
Sutton, 527 U.S. at 489, 119 S.Ct. 2139).
Rhodes presents
evidence that Comcast was aware that she was placed on shortterm disability leave from September 21, 2011 to January 3, 2012
and March 1, 2012 to May 19, 2012.
(ECF Nos. 54-10, 54-16).
The record also demonstrates that Comcast sought to have her
complete its “Interactive ADA process” on May 30, 2012—ten days
after she was medically able to return to work.
(ECF No. 5424).
In fact, Comcast offered to reassign Rhodes as an
accommodation in June 2012.
(ECF No. 54-12).
Such evidence
could support a jury finding that Comcast regarded her as
disabled in that it believed her mental impairment substantially
limited in her ability to work. Nevertheless, a covered entity
“is not required to provide a reasonable accommodation to an
individual who meets the definition of disability solely under
the ‘regarded as prong.”
29 C.F.R. § 1630.2(o)(4).
Rhodes,
therefore, cannot sustain an ADA failure to accommodate claim by
demonstrating that Comcast regarded as disabled.
24

modified

work

position.”

schedules,

reasonable

42

U.S.C.

“unless

accommodation

[the

would

12112(b)(5)(A).

§

[and]

reassignment

12111(9)(B).
employer]

impose

an

An

to

a

vacant

accommodation

can

demonstrate

undue

that

hardship.”

Id.

is
the
§

The plaintiff has the burden of identifying an

accommodation that would allow a qualified individual to perform
the essential functions of a job and the burden of persuasion
with

regard

reasonable.

to

demonstrating

that

such

an

accommodation

is

Lamb v. Qualex, Inc., 33 F.App’x 49, 56 (4th Cir.

2002) (citing Halperin v. Abacus Tech. Corp., 128 F.3d 191, 199
(4th Cir. 1997), abrogated on other grounds by Baird ex rel.
Baird v. Rose, 192 F.3d 462 (4th Cir. 1999)).
A plaintiff is qualified if she is “an individual with a
disability who, with or without reasonable accommodation, can
perform the essential functions of the employment position that
such individual holds or desires.” 42 U.S.C. § 12111(8).
regular

and

function

of

reliable
one’s

level

job.”

cannot

otherwise.’”

perform

any

Tyndall

attendance

Lamb,

Halperin, 128 F.3d at 199.
work

of

33

is

F.App’x

an
at

“A

essential
56

(citing

“[A]n employee ‘who does not come to
of
v.

his

job

Nat’l

functions,

Educ.

essential

Centers,

Inc.

or
of

California, 31 F.3d 209, 213 (4th Cir. 1994) (quoting Wimbley v.
Bolger, 642 F.Supp. 481, 485 (W.D.Tenn. 1986)).

“An employee

who cannot meet the attendance requirements of the job at issue
25

cannot be considered a “qualified” individual protected by the
ADA.”

Lamb, 33 F.App’x at 56–57 (citing Tyndall, 31 F.3d at

213).
Comcast employed Rhodes as a dispatcher.

The position

required “regular, consistent, and punctual attendance.”
No. 48-5).

(ECF

It is undisputed that Rhodes took unapproved breaks

(Rhodes Dep. 208: 9-19, ECF No. 54-2) and was on unapproved
leave from May 20 to August 1, 2012.

It is also undisputed,

however, that Rhodes’s poor attendance stemmed from the stress
and anxiety she experienced due to the working conditions at the
Millersville NOC.

Rhodes

argues that

she could perform the

essential functions of the dispatch representative position with
reasonable

accommodations,

specifically

(1)

enforcement

of

Comcast’s sexual harassment policies in the Millersville NOC,
(2)

an

expense-paid

relocation

to

another

NOC,

or

(3)

reassignment to a different position within Comcast.
“[A]n employer is not obligated to provide an employee the
accommodation he or she requests or prefers; the employer need
only

provide

some

reasonable

accommodation.”

Crabill

v.

Charlotte Mecklenburg Bd. of Educ., 423 F.App’x 314, 323 (4th
Cir. 2011) (quoting Crawford v. Union Carbide Corp., 202 F.3d
257 (4th Cir. 1999)).

The record demonstrates

that

Comcast

attempted to meet Rhodes’s first requested accommodation.

On

May 30, 2012, Glass instructed Kelley to maintain a professional
26

environment among the dispatchers on her team and ensure that
personal conversations are kept minimal and appropriate because
some of Rhodes’s complaints were accurate.
2012,

Comcast

reissued

its

office

Also, on July 11,

etiquette

dispatchers in the Millersville NOC.

policy

to

the

Lastly, Comcast conducted

an investigation into Rhodes’s complaints about unprofessional
behavior

and

sexual

Millersville

harassment

NOC,

unsubstantiated.

but
When

among

found

the

her

instructed

to

dispatchers
complaints

return

to

in

the

to

work

at

be
the

Millersville NOC, Rhodes flatly refused.
Additionally, in June 2012, Comcast attempted to transfer
Rhodes to a vacant dispatcher position in the Richmond NOC, but
Rhodes refused the accommodation because she preferred to have
Comcast

pay

for

her

relocation

expenses.

Comcast

was

not

obligated to pay for Rhodes’s relocation expenses; its offer to
relocate

her

to

the

Richmond

reasonable accommodation.

NOC

provided

Rhodes

with

some

Lastly, Comcast was not required to

reassign Rhodes a different position within the company unless
she

was

respect

qualified
to

an

for

the

individual

position.

with

a

“‘[Q]ualified,’

disability,

means

that

with
the

individual satisfies the requisite skill, experience, education
and other job-related requirements of the employment position
such

individual

holds

or

desires

27

.

.

.

.”

29

C.F.R.

§

1630.2(m).

Rhodes fails to identify any positions for which she

was qualified.
In sum, Rhodes could not perform an essential duty of her
position as a dispatcher—maintaining
punctual
cannot

attendance.
sufficiently

individual

with

a

The

Court,

demonstrate
disability

regular, consistent, and

therefore,
that

under

the

she
Act

concludes
was
or

a

Rhodes

qualified

that

Comcast

failed to provide her with a reasonable accommodation.10
b. Wrongful Discharge
To prove a wrongful discharge claim, a plaintiff must
prove “(1) [she] is within the ADA’s protected class; (2) [she]
was discharged; (3) at the time of [her] discharge, [she] was
performing

the

job

at

a

level

10

that

met

[her]

employer’s

To the extent Rhodes attempts to argue Comcast failed to
engage in an interactive process with her to identify potential
reasonable accommodations, she cannot base her claim solely on
this allegation. Walter v. United Airlines, Inc., No. 99-2622,
2000 WL 1587489, at *5 (4th Cir. Oct. 25, 2000) (citing Rehling
v. City of Chicago, 207 F.3d 1009, 1016 (7th Cir. 2000)). “[S]he
also must show that this failure to engage in the process
resulted in the failure to find an appropriate accommodation.”
Fleetwood v. Harford Sys. Inc., 380 F.Supp.2d 688, 701 (D.Md.
2005).
The record demonstrates that Comcast attempted to
reassign
her
to
the
Richmond
NOC,
but
she
refused.
Additionally,
the
record
demonstrates
Rhodes
repeatedly
indicated that she would never return to the Millersville NOC
regardless of Comcast’s efforts to reinforce its harassment and
office etiquette policies in that location.
Lastly, Rhodes
failed to even identify any different vacant positions within
Comcast for which she was qualified.
The Court, therefore,
concludes that Rhodes has failed to demonstrate the Comcast’s
purported failure to engage in an interactive process was
unlawful.
28

legitimate expectations; and (4) [her] discharge occurred under
circumstances

that

discrimination.”

raise

a

reasonable

inference

of

unlawful

Haulbrook v. Michelin N. Am., 252 F.3d 696,

702 (4th Cir. 2001) (citing Ennis v. Nat’l Ass’n of Bus. & Educ.
Radio, 53 F.3d 55, 58 (4th Cir. 1995)).
A

plaintiff

must

“first

establish

that

[s]he

is

‘qualified individual with a disability’ under the ADA.”

a

Shin

v. Univ. of Maryland Med. Sys. Corp., 369 F.App’x 472, 479 (4th
Cir.2010) (citing Rohan v. Networks Presentations LLC, 375 F.3d
266, 272 (4th Cir. 2004)).

As previously stated, Rhodes has

failed to demonstrate that she is a qualified individual with a
disability.

As such, the Court will grant Comcast’s Motion as

to this claim.
c. Retaliation
The

ADA

provides

that

“[n]o

person

shall

discriminate

against any individual because such individual . . . made a
charge

.

(emphasis

.

.

under

added).

this

chapter.”

“Given

that

42

the

U.S.C.

ADA’s

§

12203(a)

anti-retaliation

provision is identical to Title VII’s, the standard laid out by
the Supreme Court for purposes of Title VII controls in this ADA
case.”
(4th

A Soc’y Without A Name v. Virginia, 655 F.3d 342, 352
Cir.

2011).

“In

order

to

prevail

on

a

claim

of

retaliation, a plaintiff must either offer sufficient direct and
indirect evidence of retaliation, or proceed under a burden29

shifting method.”

Rhoads, 257 F.3d at 391.

A plaintiff can

produce evidence including conduct or statements that directly
reflect

“the

alleged

discriminatory

attitude

and

directly on the contested employment decision.”

that

bear

Id. (quoting

Brinkley v. Harbour Recreation Club, 180 F.3d 598, 606–07 (4th
Cir. 1999)).
Alternatively,
establish

a

prima

under
facie

the

burden

retaliation

shifting
claim

method,

under

the

“[t]o
ADA,

a

plaintiff must prove (1) [she] engaged in protected conduct, (2)
[she] suffered an adverse action, and (3) a causal link exists
between the protected conduct and the adverse action.”

Reynolds

v. Am. Nat. Red Cross, 701 F.3d 143, 154 (4th Cir. 2012).

A

plaintiff need not establish that the conduct she engaged in was
actually protected under the ADA violation, but she must have a
reasonable and good faith belief that her conduct was protected.
Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 216
(4th Cir. 2002) (citations omitted).
Rhodes does not present any arguments regarding her ADA
retaliation claim in her Opposition.

In the Complaint, Rhodes

demonstrates that she engaged in protected activity when she
informed

Comcast

of

her

mental

impairments

reasonable accommodations in May 2012.

and

requested

Though Rhodes cannot

demonstrate that she is a qualified individual with a disability
under the ADA, a jury could find that she had a reasonable and
30

good faith belief that her request for an accommodation—i.e.,
relocation or reassignment—was protected under the Act.

The

record shows that Rhodes’s termination was temporally proximate
to

her

request

that

Comcast

accommodate

her

perceived

disability.11
Additionally, Rhodes presents direct evidence that she was
terminated because of health: Comcast’s records state Rhodes was
involuntarily terminated because of her health.
27).

(ECF No. 54-

The record also demonstrates, however, that Comcast did

not terminate Rhodes because of her health.

(ECF No. 54-9)

(stating Rhodes was not terminated due to her health).
Court,

therefore,

regarding
health.

whether

concludes
Comcast

that

a

terminated

genuine
Rhodes

dispute
because

The
exists

of

her

Accordingly, the Court will deny Comcast’s Motion as to

this claim.12

11

The Court notes that the McDonnell Douglas burdenshifting scheme applies to appropriate claims brought under the
ADA. Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d
55, 58 (4th Cir. 1995), as amended (June 9, 1995), as amended
(Mar. 14, 2008). Much like the Title VII retaliation claim, the
parties do not engage in any burden-shifting analysis discussing
whether Comcast had a legitimate non-discriminatory reason for
terminating Rhodes or whether said reason was pretextual.
Because Comcast simply moves for summary judgment by arguing
that no dispute exists as to whether Rhodes has presented a
prima facie claim for ADA retaliation, the Court will not
address the remaining steps of the McDonnell Douglas standard.
12
Because Rhodes has failed to demonstrate claims for
discrimination, failure to accommodate, and wrongful discharge,
the Court will also grant Comcast’s Motion as to Counts X
(disability discrimination and wrongful discharge) and XII
31

3. FMLA
a. FMLA Interference
Under the FMLA, eligible employees are entitled to “a total
of 12 workweeks of leave during any 12-month period” for certain
health or family reasons.

29 U.S.C. § 2612(a)(1).

An employer

violates the Act when it “interfere[s] with, restrain[s], or
den[ies] [an employee’s] exercise or attempt to exercise” her
FMLA rights.
To

Id. § 2615(a).

state

a

claim

for

unlawful

interference

with

an

entitlement to FMLA benefits, an employee must allege that: “(1)
she was an eligible employee; (2) her employer was covered by
the statute; (3) she was entitled to leave under the FMLA; (4)
she gave her employer adequate notice of her intention to take
leave; and (5) the employer denied her FMLA benefits to which
she was entitled.”

Rodriguez v. Smithfield Packing Co., Inc.,

545 F.Supp.2d 508, 516 (D.Md. 2008) (citing Edgar v. JAC Prods.,
Inc., 443 F.3d 501, 507 (6th Cir. 2006)).

An eligible employee

is one who has been employed by the covered employer for at
least 12 months, for at least 1,250 hours of service during the
12-month period immediately preceding the start of the requested
leave, and at a worksite where 50 or more employees are employed

(failure to accommodate).
The Court will, however, deny the
Motion as to Count XIII (disability retaliation).
32

by the employer within 75 miles of that worksite.

29 C.F.R. §

825.110(a) (2016).
Rhodes

presents

absolutely

no

evidence

regarding

her

eligibility for FMLA benefits, that she was entitled to leave
under the Act, or that Comcast denied any FMLA benefits to which
she was entitled.

The Court will, therefore, grant Comcast’s

Motion as to this claim.
b. FMLA Retaliation
FMLA

claims

arising

under

the

retaliation

theory

are

analogous to those derived under Title VII and are analyzed
under

the

McDonnell

Douglas

burden-shifting

framework.

See

Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 502 (4th Cir.
2001).

Thus, to succeed on her retaliation claim, Rhodes must

make a prima facie showing “that [she] engaged in protected
activity, that the employer took adverse action against [her],
and that the adverse action was causally connected to [her]
protected activity.”

Cline v. Wal–Mart Stores, Inc., 144 F.3d

294, 301 (4th Cir. 1998).
It is undisputed that Rhodes engaged in protected activity
by taking intermittent FMLA leave from April 10, 2011 to April
9, 2012.

(ECF No. 54-17).

It is also undisputed that Rhodes

applied and was rejected for a supervisor position in June 2011.
Rhodes testified that her supervisor Rick O’Leary informed her
that she would not be considered for the position because she
33

had

taken

FMLA

leave

in

June

and

July

2011.

While

on

intermittent leave, Comcast issued a written warning to Rhodes
regarding

her

attendance

during

January

and

February

2012.

After Rhodes’s FMLA leave expired on April 9, 2012, Comcast
terminated her on August 1, 2012.

The Court, therefore, finds

that Rhodes has presented sufficient evidence to support this
retaliation

claim.

As

such,

the

Court

will

deny

Comcast’s

Motion as to this claim.
III. CONCLUSION
For

the

foregoing

reasons,

Comcast’s

Motion

for

Summary

Judgment (ECF No. 48) is DENIED in part and GRANTED in part.
Counts III, IV, VI, X, and XII of the Complaint (ECF No. 1) are
DISMISSED and judgment is entered in favor of Comcast for these
Counts.

Comcast’s Motion in Limine to Exclude the Affidavits of

Karen Davis and Kirby Duffy (ECF No. 49) is DENIED.

Comcast

shall be permitted thirty days to depose Ms. Davis and Duffy.

A

separate Order follows.
Entered this 17th day of August, 2016
/s/
_____________________________
George L. Russell, III
United States District Judge

34