“Where, as here, an employee alleges retaliation under the FMLA or the ADA without direct evidence of the employer’s intent, we apply the burden shifting framework established in [McDonnell Douglas].”
How later courts described this case
- “Where, as here, an employee alleges retaliation under the FMLA or the ADA without direct evidence of the employer’s intent, we apply the burden shifting framework established in [McDonnell Douglas].”
- “We therefore join our sister circuits that have considered this issue and apply the Burlington Northern standard for materially adverse action to the FMLA context.”
- applying Burlington Northern anti-retaliation standard to FMLA retaliation claims
- “[A] plaintiff proceeding under McDonnell Douglas must show that she and her comparators are ‘similarly situated in all material respects.’”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JENNIFER ROLLINS,
Plaintiff,
v. Case No. 8:19-cv-2336-T-33SPF
BANKER LOPEZ & GASSLER, PA,
Defendant.
______________________________/
ORDER
This matter is before the Court on consideration of
Defendant Banker Lopez & Gassler, PA’s Motion for Summary
Judgment (Doc. # 39), filed on April 28, 2020. Plaintiff
Jennifer Rollins responded on May 19, 2020. (Doc. # 45). BLG
filed a reply on June 11, 2020. (Doc. # 47). For the reasons
that follow, the Motion is granted.
I. Background
A. Beginning of Rollins’ Employment
Banker Lopez & Gassler (BLG) is a law firm with 80
attorneys and 170 staff members across six Florida offices
(Doc. # 40-11 at 1). Before joining BLG, Rollins worked for
two law firms between 2013 and 2016. (Doc. # 40-1 at 7:23-
10:4; Doc. # 40-4; Doc. # 40-5). When Rollins applied to BLG
in January 2017, she was unemployed, having had a second child
in March 2016 and treatment for a cerebral aneurysm in June
2016. (Doc. # 40-1 at 10:14-12:25). Rollins told BLG during
her interview she had an aneurysm in 2016. (Id. at 206:8-21).
On January 19, 2017, BLG offered Rollins a position as
a legal assistant in the Personal Injury Protection/Special
Investigative Unit (PIP/SIU) practice group in the St.
Petersburg office. (Id. at 209:10-25; Doc. # 40-6). PIP/SIU
defends insurers in PIP and auto windshield replacement cases
(“glass cases”). (Doc. # 40-1 at 81:15-83:15; Doc. # 40-10 at
2). BLG attorneys handle hundreds of PIP and glass cases at
a time, largely in small claims court. (Doc. # 40-1 at 183:19-
24; Doc. # 40-10 at 2-3).
Legal assistants in the PIP/SIU group were responsible
for calendaring deadlines, filing and serving pleadings, and
coordinating depositions, hearings, and trial for each
lawyer’s 300-500 cases. (Doc. # 40-1 at 183:5-12; Doc. # 40-
11 at 10; Doc. # 40-10 at 3; Doc. # 40-9 at 1). Thus, legal
assistants like Rollins “had to be organized and able to
prioritize a large number of small competing tasks with a
high level of attention to detail.” (Doc. # 40-11 at 2, 10).
“The attorney-to-assistant ratio in the PIP/SIU [p]ractice
[g]roup varies and depends on the volume and complexity of
each attorney’s practice, among other factors.” (Doc. # 40-
10 at 3). “There is no hard-and-fast rule as to how many
attorneys a PIP/SIU legal assistant is expected to support.”
(Id.). A full-time legal assistant would usually support
between one and four attorneys, “although attorney
assignments and number of attorneys may change periodically,
depending on business needs.” (Id.).
According to Troy McRitchie, the managing shareholder of
BLG’s St. Petersburg office, Rollins’ performance “was
lacking from the very beginning.” (Id. at 1, 3). On February
23, 2017, Rollins received a 30-day evaluation from the Chair
of the Statewide PIP/SIU Practice Group, Dale Parker. (Doc.
# 40-1 at 87:8-12, 210:7-11; Doc. # 40-7; Doc. # 40-10 at 2,
4). Parker recognized that Rollins was still “learning” but
rated her performance as “below expectations” in the areas of
“quality of work and organizational skills.” (Doc. # 40-1 at
87:8-15, 210:12-22; Doc. # 40-7; Doc. # 40-11 at 1-2).
In June 2017, BLG assigned Rollins to PIP attorney Eric
Hogrefe. (Doc. # 40-1 at 62:21-25; Doc. # 40-11 at 2, 11).
According to Rollins, Hogrefe was “very self-sufficient” and
did not “utilize [her] that much.” (Doc. # 40-1 at 88:4-9).
Hogrefe did not provide Rollins with feedback on her
performance one way or the other. (Id. at 88:16-18).
Still, Rollins made numerous mistakes on Hogrefe’s
cases. For example, Rollins scheduled a deposition in Orlando
on his calendar but failed to subpoena the witness, notice
the deposition, or clear it with opposing counsel; she only
arranged it with a court reporter’s office. (Doc. # 40-9 at
2). After “fighting the I-4 rush-hour traffic for [] 2 hours,”
Hogrefe learned Rollins had failed to set up the deposition,
despite supposedly confirming that it was going forward, and
had to turn around and drive back. (Id.). Another time,
Rollins mis-calendared a pretrial conference, causing Hogrefe
to miss it. (Id.). After driving three hours from St.
Petersburg to New Smyrna Beach and staying at a hotel
overnight, Hogrefe headed to court the next day only to find
out the pretrial conference had already happened, without
anyone from BLG attending. (Id.). A court order changing the
date and time of the conference had been processed by Rollins.
(Id.). After these errors, Hogrefe simply stopped using
Rollins. (Id.).
BLG employees “may not use social media while on work
time or on Firm equipment or devices, unless it is work-
related and authorized in advance.” (Doc. # 40-11 at 38).
Yet, in September 2017, shareholder McRitchie learned Rollins
was browsing Facebook while clocked in. McRitchie asked BLG’s
IT Director, Jason Clements, to research Rollins’ total time
spent on Facebook. (Id. at 2, 87; Doc. # 40-10 at 4). Clements
told McRitchie that, as of 3:00 p.m. that day alone, Rollins
had been logged onto Facebook since 8:48 a.m. (Doc. # 40-11
at 87). Two days later, PIP/SIU leader Parker told Rollins
not to use Facebook or any other social media while on the
clock after he saw her minimize a Facebook page when he walked
by. (Id. at 2, 88).
On October 23, 2017, Rollins emailed Hogrefe, Parker,
McRitchie, and HR Director Erin Esquia to inform them that
she was pregnant. (Id. at 2, 89-92). The pregnancy was “very
early on” but Rollins asked about the process for taking leave
under the Family Medical Leave Act (FMLA). (Id.; Doc. # 40-1
at 211:15-212:1). Esquia congratulated Rollins and, although
Rollins was not yet eligible for FMLA, discussed the FMLA and
short-term disability claim processes with her. (Id. at 76:4-
17; Doc. # 40-11 at 89-92). According to BLG, similar requests
for maternity leave are common at BLG. Since being founded in
2008, BLG has approved FMLA for one hundred forty employees,
including thirty-five FMLA-covered maternity leaves. (Doc. #
40-11 at 2-3).
Hogrefe left BLG in November 2017, and BLG assigned
Rollins to associates Kristin Gonzalez and Nathan Zilak. (Id.
at 3; Doc. # 40-1 at 77:14-21). Hogrefe left behind active
PIP cases and, because both Gonzalez and Zilak “were already
busy with their own caseloads,” McRitchie took over Hogrefe’s
PIP cases. (Doc. # 40-10 at 4). BLG kept those PIP cases
assigned to Rollins for November and December 2017 for her to
resolve or transfer to McRitchie’s legal assistant. (Id.).
Rollins made numerous errors during November and
December. She failed to timely submit a stipulation to the
court, forgot to deliver files to McRitchie, and failed to
add items on his calendar, including a pretrial conference,
which resulted in a default against a BLG client, causing the
firm to scramble to set the default aside. (Id. at 4-5; Doc.
# 40-11 at 3, 94-99). Rollins told McRitchie she did not know
“where [her] head was,” and was “a terrible, terrible
assistant.” (Doc. # 40-11 at 98-99). Although McRitchie
counseled her, he did not formally discipline Rollins for
causing the default. (Doc. # 40-10 at 5).
On January 5, 2018, Rollins volunteered to take on a
third attorney, Alex Peckham. (Id. at 3, 93). Soon after, on
January 16, Rollins failed to calendar a deadline for
responding to requests for admission in Gonzalez’s case. (Id.
at 3, 100-101). After receiving a conferral letter setting a
deadline to respond and threatening to file a motion to deem
the requests admitted if Gonzalez failed to respond, Rollins
failed to pass the letter to Gonzalez. (Id.). Gonzalez learned
of the issue only when the deadline had passed and opposing
counsel had filed his motion. (Id.). Gonzalez informed
Rollins that her mistake was “a pretty big deal.” (Id. at
101). Rollins “[t]otally agree[d]—[she] screwed this up.”
(Id. at 100).
Additionally, in October and November 2017, Gonzalez had
twice asked Rollins to reset a hearing. (Id. at 3, 102). After
receiving no response, Gonzalez followed up for the third
time on January 23, 2018, and Rollins finally reset it. (Id.).
Gonzalez told Rollins she could ask BLG’s scheduler to help
if she needed assistance with the scheduling. (Id.).
Because of these and other performance errors, Gonzalez
shared her concerns about Rollins with Parker on March 8,
2018. (Id. at 103). They discussed Rollins’ failure to
calendar exhibit exchange deadlines in two cases, the January
16 failure to send the admissions conferral letter, and her
failure to allow sufficient travel time between events
resulting in Gonzalez arriving late. (Id.).
The next day, March 9, Parker, McRitchie, and HR Director
Esquia met with Rollins to “counsel[] her regarding mis-
calendaring and missing deadlines, being behind on attorney
time slips, and abuse of her cellphone at work.” (Id. at 3-
4; Doc. # 40-8; Doc. # 40-1 at 214:14-215:12). Rollins admits
she “used [her] phone a lot,” which “was an issue.” (Doc. #
40-1 at 104:21-105:1).
During the March 9 meeting, Rollins complained about her
workload. (Doc. # 40-11 at 3; Doc. # 40-8; Doc. # 40-1 at
214:1-6). She claimed she was missing an hour and a half
covering the front desk because she had no access to calendars
and case folders from the front desk computer. (Doc. # 40-1
at 218:4-7, 219:9-13). Esquia had IT ensure Rollins had access
and ultimately trained others to cover the front desk so
Rollins never had to. (Doc. # 40-8; Doc. # 40-1 at 218:4-
219:13). Esquia, Parker, and McRitchie reiterated BLG’s
calendaring and other procedures to Rollins, instructed her
to limit her cellphone use, and placed a warning memo in her
file. (Doc. # 40-8; Doc. # 40-1 at 214:18-215:18).
Following the March 9 meeting, Rollins’ assigned
attorneys continued to have problems with her performance. On
March 12, attorney Peckham discovered Rollins had failed to
schedule or confirm the appearance of an adjuster at a
mediation he arrived for in Fort Lauderdale. (Doc. # 40-11 at
4, 107; Doc. # 40-10 at 5). This potentially exposed the
client to sanctions for failing to appear and caused Peckham
to have to “scramble” to reschedule. (Doc. # 40-11 at 4, 107;
Doc. # 40-10 at 5).
On March 13, attorney Gonzalez had to ask Rollins for
the third time to set up witness depositions after Rollins
failed to acknowledge Gonzalez’s first two requests. (Doc. #
40-11 at 4, 106). On March 14, Gonzalez asked Rollins for the
second time to set up a phone conference; Rollins also failed
to send a letter to a client that day. (Id. at 4, 108). The
next day, March 15, Gonzalez narrowly avoided driving from
St. Petersburg to Orlando for a hearing that was cancelled.
(Id. at 109). Luckily, Gonzalez learned about the
cancellation from opposing counsel right before leaving.
(Id.). Rollins was coached about the importance of confirming
attorney calendars and referred to legal assistant Linda
Croce for best practices on confirming cancellations. (Id. at
110).
The next month, Peckham arrived at a deposition to find
that the deponent was not there, even though both parties and
the court reporter were present. (Id. at 4, 111-12). It turned
out that Rollins had canceled the deposition with the
deponent, but failed to notice the cancellation and failed to
tell anyone it was cancelled. (Id. at 111-12). Rollins
admitted in a later email it was her fault: “Oh my gosh! Yes!
DAMMIT! . . . I am so so so sorry. I can’t believe I neglected
to do that. It completely slipped my mind when I did the
confirmations! I’m an ass. I’m so sorry.” (Id. at 111).
Rollins was out on FMLA maternity leave from June 2018
to September 4, 2018. (Id. at 3; Doc. # 40-1 at 48:5-10).
Meanwhile, June 2018 was an especially busy time for BLG’s
already busy PIP/SIU practice group. (Doc. # 40-1 at 95:1-
17, 97:11-17; Doc. # 40-10 at 5). A client “sent a large
number of new glass cases to BLG to handle.” (Doc. # 40-10 at
5). BLG hired a rising second-year law student, Kristina
Harris, to fill in for Rollins and help with the new cases.
(Id. at 6; Doc. # 40-1 at 93:8-11). Harris supported all three
of Rollins’ attorneys plus Rachel Swansiger, a new attorney
who was hired to handle the new glass cases and started on
June 11, 2018. (Doc. # 40-1 at 93:12-18, 94:3-7; Doc. # 40-
10 at 6; Doc. # 40-11 at 4). Harris was on top of the work
and successfully caught up all four attorneys in Rollins’
absence. (Doc. # 40-10 at 6).
B. Return from FMLA Maternity Leave
Rollins returned from FMLA maternity leave on September
4, 2018, and BLG reinstated her. (Doc. # 40-11 at 3). Rollins
admits that BLG did not discriminate against her in any way
before she returned from FMLA leave. (Doc. # 40-1 at 52:10-
16).
BLG accommodated Rollins “with an empty office with
blinds on the windows and a lock on the door as a lactation
room.” (Doc. # 40-11 at 4). Esquia avers that she “encouraged
[Rollins] to take breaks to pump milk whenever she needed
them” and “BLG approved [] Rollins to take lactation breaks.”
(Id.). Although Rollins acknowledges that she “was told that
[she] was allowed to take breaks to pump breast milk during
the day,” Rollins denies that she was encouraged to take
lactation breaks whenever she needed. (Doc. # 45-3 at 1-2).
According to Rollins, she needed to pump two to three
times a day for thirty to forty minutes each time. (Id. at
1). “However, because of [her] workload and the fact that
[she] was not allowed to work extra hours to catch up on [her]
assignments, [Rollins] was never able to take three breaks in
a day, and some days [she] was unable to take even one.”
(Id.). Rollins “informed [] Gonzalez of this issue but nothing
was done.” (Id.).
When Rollins returned, she worked for three of the same
attorneys as before — Gonzalez, Zilak and Peckham — and now
also Swansiger. (Doc. # 40-1 at 51:10-13, 78:5-79:10, 94:8-
13). The influx of cases that began while Rollins was out on
FMLA leave continued after Rollins’ return. (Id. at 95:1-17;
Doc. # 40-10 at 5-6). Rollins was doing the same type of work
as before, but more of it in volume. (Doc. # 40-1 at 92:5-
22). Rollins testified that her workload increased because of
the new cases, not because of the number of her attorneys.
(Id. at 92:14-22). Specifically, when asked if the dramatic
increase in her work volume after maternity leave was “because
an additional lawyer was assigned to” her, Rollins responded:
“No, it wasn’t because of [an] additional [lawyer] — we had
a heavy increase of new cases coming in.” (Id.).
The influx of new cases affected everyone — not just
Rollins. (Id. at 95:21-96:21). Rollins testified that all
staff were overwhelmed: “We were all swamped. . . . I don’t
know how much work [other people] had, but everybody was busy.
It was hard for anyone to help each other out. So if I, say
for instance needed [another legal assistant’s] help, she
would get behind on her work.” (Id. at 98:12-20, 192:3,
192:10-14). Attorneys were just as frustrated with their
workload. (Id. at 96:1-11). Rollins noted that “it was just
a general understanding throughout the office that there was
just too much work.” (Id. at 189:5-8). Still, Rollins also
testified that she “was the only one that had that amount of
work” and “was the only one that was given that many attorneys
and that many cases.” (Id. at 189:9-15).
To help with the workload, BLG retained law student
Harris as a part-time legal secretary after Rollins’ return.
(Id. at 190:23-191:3; Doc. # 40-10 at 6). When Rollins was
overwhelmed, an attorney would often tell her to delegate
work to Harris. (Doc. # 40-1 at 191:13-25). To help Rollins
manage her workload, BLG asked Harris to provide Rollins with
additional training. (Doc. # 40-10 at 6). Harris also created
a detailed “What I Do Every Day” list of daily tasks for
Rollins. (Doc. # 40-11 at 4, 113-115). Harris similarly put
together a “PIP in a Nutshell” guide for Rollins, detailing
the handling of PIP cases, including everything from serving
answers to scheduling to settlement. (Id. at 4, 116-117).
Although Rollins acknowledged that Harris previously
successfully kept up with the same workload, saying that
Harris “must have worked miracles,” Rollins complained that
she was so busy she was barely “clinging to life.” (Doc. #
40-11 at 118; Doc. # 40-10 at 6).
A few days after her return from leave, on September 7,
2018, BLG announced new streamlined procedures for handling
PIP cases and better managing the workflow. (Doc. # 40-11 at
5, 119-120). BLG told staff to immediately let attorneys know
if they fell behind and needed help, and they could delegate
work to other staff. (Doc. # 40-11 at 119). However,
“[a]ttorney approval [was] required before assigning a task
to any other staff member.” (Id.). BLG later held a staff
meeting about the new procedures, including handling of PIP
and glass service emails; opening, handling, and scheduling
of PIP cases; and self-organization. (Id. at 5, 119-120; Doc.
# 40-10 at 6).
Rollins declared that she “was told that [she] could ask
for help if [she] was overwhelmed.” (Doc. # 45-3 at 1). But,
“when [she] did ask another assistant for help, [she] was
reprimanded and told that [she] had to ask an attorney’s
permission each time prior to asking another staff member for
help.” (Id.). Rollins considered asking for attorney approval
first to be impractical. (Id.).
On September 18, Gonzalez learned Rollins had failed to
file a response to a complaint due on September 6 — two days
after Rollins came back to work. (Doc. # 40-11 at 5, 121-22).
Rollins couldn’t explain “how [she] missed that.” (Id. at
121-22).
On September 25, HR Director Esquia and Gonzalez met
with Rollins to discuss her “time-management and performance
versus [BLG’s] expectations.” (Doc. # 40-11 at 5, 123).
According to Esquia, Rollins complained about her workload
but admitted BLG’s “new PIP case handling procedures were
working.” (Id.). But Rollins avers that she “did not tell []
Esquia that BLG’s new PIP case handling procedures were
‘working.’” (Doc. # 45-3 at 1).
According to McRitchie, Rollins “was given extensive
guidance and training” with twelve-year veteran
paralegal/legal assistant Tammie Hogan, so that Rollins could
further learn from Hogan about the responsibilities of her
job. (Doc. # 40-10 at 6). However, Rollins asserts that she
“was not given ‘extensive guidance and training’” with Hogan
“at any time.” (Doc. # 45-3 at 2).
BLG also temporarily reassigned Gonzalez’s and Peckham’s
PIP cases to Harris in September 2018, so that Rollins could
focus only on her attorneys’ glass cases, which are less
involved and which she preferred. (Doc. # 40-1 at 81:23-82:1,
84:1-4; Doc. # 40-11 at 5, 118).1
Soon after the September 25, 2018, meeting, on September
28, Gonzalez emailed Rollins because Rollins had not
calendared any deadlines for a case she opened five months
earlier in April 2018. (Doc. # 40-11 at 5, 124).
On November 6, BLG assigned a staff person from another
practice group to assist Rollins with a proposal for
1 As of mid-February 2019, Rollins had taken back over the
PIP cases. (Doc. # 40-11 at 131-32).
settlement project. (Doc. # 40-11 at 5, 127; Doc. # 45-3 at
2). While Rollins acknowledges that the staff person was
assigned to help her on the project, Rollins asserts the other
staff person was not able to help with her backlog. (Doc. #
45-3 at 2). She notes that she had to train the staff person
on the project, “which took even more time away from
[Rollins’] primary duties.” (Id.). Rollins also insists that,
around this time, she “had already told [her] attorneys
multiple times that [she] was having trouble keeping up, was
already skipping lunches and unable to take breaks to express
breast milk as needed.” (Id.).
To further help manage the workload, on February 4, 2019,
BLG hired another legal assistant, Mija Howell, and
reassigned attorney Zilak from Rollins to Howell so that
Rollins could focus on Gonzalez’s and Peckham’s work. (Doc.
# 40-11 at 5; Doc. # 40-1 at 127:13-15). At this time, BLG
“returned [Gonzalez’s and Peckham’s] PIP cases back to []
Rollins.” (Doc. # 40-11 at 5). Rollins disputes that Howell’s
hiring was helpful because Howell “was still in training and
did not fully take over [] Zilak’s workload from [Rollins]
until shortly before” March 25, 2019. (Doc. # 45-3 at 2).
Attorney Swansiger left BLG on February 15. (Doc. # 40-
11 at 6; Doc. # 40-1 at 127:10). Thus, by mid-February,
Rollins was again supporting only two attorneys. (Doc. # 40-
1 at 127:10-128:2). Indeed, in a February 27 email, Rollins
stated that she now “ha[d] 2 attorneys instead of 4.” (Doc.
# 40-11 at 131). Eventually, about a week before she left BLG
in late March, Rollins was assigned a third attorney — Niklas
Stubbendorf. (Id. at 127:18-23; Doc. # 45-3 at 2).
Despite having fewer attorneys to support as of mid-
February, Rollins was still behind on her work. Rollins was
passing off work without approval, unnecessarily elevating
file-related questions to attorneys that could have been
answered by referring to the file, and failing to timely
communicate with attorneys. (Doc. # 40-11 at 129-130; Doc. #
40-10 at 6).
On February 22, Brendan McKay, who helped oversee the
PIP/SIU practice group, Gonzalez, Peckham, and Esquia met
with Rollins. (Doc. # 40-11 at 6, 128-30; Doc. # 40-10 at 7).
They told Rollins that her performance needed to improve
“immediately, subject to review in [thirty to forty-five]
days, or she was subject to termination.” (Doc. # 40-11 at 6,
128-30; Doc. # 40-10 at 7). Rollins alleges that during this
meeting, she complained about having trouble taking
sufficient lactation breaks because of the workload. (Doc. #
1 at 4).
After the February 22 meeting, Rollins’ performance
problems continued. (Doc. # 40-11 at 6). On February 26,
Gonzalez asked Rollins again to schedule an initial phase
conference, after making this same request in other cases.
(Id. at 6, 131-32). A BLG client had “recently pulled a ton
of PIP cases” from another law firm for failing to keep up
with this task. (Id. at 132).
Rollins claimed in her February 27 response email that,
although she now supported only “2 attorneys instead of 4,”
she was still too busy. (Doc. # 40-11 at 131-32). She also
reminded Gonzalez about her aneurysm and that the work-
related stress caused intense headaches “at least twice a
week.” (Id. at 131). While Rollins asked Gonzalez to “come up
with a better plan” for her workload, she did not specify
what action she wanted BLG to take in light of her aneurysm.
(Id. at 131-32).
C. Rollins’ Health Issues and Termination
Rollins claims her cerebral aneurysm is a disability for
purposes of her disability discrimination claim. (Doc. # 40-
1 at 9:4-7). Rollins was diagnosed with an aneurysm in June
2016. (Id. at 8:20-22, 10:22-23). She was treated with a stent
and took blood thinners for four months, but she has only
taken daily aspirin since. (Id. at 11:10-12:6). Rollins’
aneurysm can cause headaches, nausea, and impaired vision.
(Id. at 18:12-17, 24:5-16). Although these symptoms can last
from a couple of hours to a couple of days, they are typically
not severe enough to cause her to go to the emergency room,
and Rollins sleeps them off. (Id. at 18:20-19:3, 24:17-25:8).
Rollins testified that these symptoms made her unable to work
only on “some days.” (Id. at 24:17-18). Still, in her
declaration, Rollins avers that the vision issues and
headaches “ma[de] [her] unable to work, drive, read,
concentrate, think clearly, and see.” (Doc. # 45-3 at 1).
Rollins admits she could leave work any time she experienced
a headache and no one at BLG ever opposed her early departures
from work. (Doc. # 40-1 at 55:2-10). Rollins does not know
how many times she left early due to a headache before her
maternity leave. (Id. at 55:11-16).
Rollins twice requested time off related to the
aneurysm. In June 2017, she requested time off for a cerebral
angiogram and a potential hospital admission. (Doc. # 40-11
at 8, 152). BLG granted Rollins paid time off. (Id.). Later,
in May 2018, Rollins requested a week off due to her
hospitalization, and BLG granted her request. (Doc. # 40-1 at
114:11-17; Doc. # 40-11 at 154-155). A doctor at the hospital
told Rollins she had developed a second aneurysm, but it
turned out later he was mistaken. (Doc. # 40-1 at 112:6-
113:21). Since 2016, Rollins has seen a neurologist between
five and six times — the last in August 2018 — and has gone
to the emergency room with a headache around four times. (Id.
at 14:15-15:3, 16:21-17:7, 19:25-20:19, 22:22-25). During her
deposition, Rollins stated that she “didn’t need” an
accommodation for her aneurysm when she began working for BLG
and that she did not require an accommodation currently. (Id.
at 206:22-207:6).
Soon after her February 27 email to Gonzalez in which
Rollins noted her aneurysm and related headaches, Rollins
emailed opposing counsel from one of Gonzalez’s cases on March
4. (Doc. # 40-11 at 136). She asked him to waive Gonzalez’s
in-person appearance at a pretrial conference in Escambia
County. (Id.). Opposing counsel did not agree. (Id. at 135).
Rollins neither communicated this to Gonzalez nor calendared
the in-person conference. (Id. at 6, 133-136).
On March 13, the court entered a default in that case
against BLG’s client because Gonzalez had failed to appear in
person at the conference. (Id.). Rollins acknowledged her
actions by claiming she “didn’t get to the [opposing
counsel’s] email . . . . I’m so sorry.” (Id. at 134; Doc. #
40-10 at 7). Rollins admits her responsibility for causing
the default. (Doc. # 40-1 at 183:25-184:11). Although BLG
holds non-attorney staff accountable for case deadlines (Doc.
# 45-2 at 105:1-106:17), Gonzalez once sent an email in
September 2018 to attorneys stating:
When a new file is opened for you, you’ll receive
a notecard that will have a check-list of items the
assistant was required to do prior to handing off
the case to you. It is the attorney’s
responsibility to review the notecard to be sure
every item on the list is checked/completed.
(Doc. # 40-11 at 119).
Also around this time, on March 11, Rollins opened a
file, but failed to calendar deadlines. (Doc. # 40-11 at 6,
137). This was not discovered until a month later. BLG
narrowly avoided another default. (Id.).
BLG considered the March 13 default the “the last straw.”
(Doc. # 40-10 at 7; Doc. # 40-11 at 145). Gonzalez, Esquia,
Parker, and McRitchie decided together to terminate Rollins.
(Doc. # 40-11 at 6). Rollins’ employment ended on March 25,
2019. (Doc. # 40-1 at 187:8-16; Doc. # 40-10 at 7; Doc. # 40-
11 at 7, 145).
Rollins admits she “absolutely” made performance errors
before her FMLA leave, and they continued after her return.
(Doc. # 40-1 at 182:17-22, 186:15-187:7). While Rollins
admits she “had made some mistakes,” she states in her
declaration that she was “never disciplined or written up
until after [she] took maternity leave.” (Doc. # 45-3 at 1).
She emphasizes that all legal assistants in the PIP/SIU
practice group made mistakes, but none were fired while
Rollins worked there. (Id.). Rollins also avers that she “was
never threatened with losing [her] job until after [she]
returned from maternity leave.” (Id.).
Also on March 25, BLG terminated another legal assistant
in Tampa, Angela Curvelo. (Doc. # 40-11 at 7). Curvelo was
terminated “for various performance issues, including failure
to correctly process settlement checks and timely save
documents to case files.” (Id.). Prior to her termination,
BLG “had multiple performance coachings with [] Curvelo, but
she failed to show improvement.” (Id.). BLG also highlights
three other legal assistants it terminated between June 2018
and October 2019 for performance issues. (Id.).
Regarding comparators, Rollins testified that there were
only two other legal assistants in the PIP/SIU practice group:
Onelja Shehaj and Linda Croce. (Doc. # 40-1 at 90:20-25).
Rollins averred in her declaration that she once overheard
Shehaj “flatly refus[e] to do work assigned by her attorney.”
(Doc. # 45-3 at 2). Additionally, Rollins emphasizes that
Shehaj “was counseled more than once about working
unauthorized overtime.” (Doc. # 45 at 7). Rollins believes
Shehaj “did not take FMLA leave while working for BLG, was
not pregnant while working for BLG, and was not disabled while
working for BLG.” (Doc. # 45-3 at 2).
Shehaj typically supported one attorney, but sometimes
two, and was also overwhelmed. (Doc. # 40-1 at 89:17-90:8,
98:7-25; Doc. # 40-11 at 8). Notably, the primary attorney
Shehaj supported handled not only hundreds of PIP cases but
also a large number of bodily injury cases, which are much
more involved than PIP and glass cases. (Doc. # 40-11 at 8).
Also, Shehaj “was competent and skilled,” and the performance
reviews from her first 90 days of employment in 2017 show
that Shehaj always met or exceeded expectations. (Id. at 8,
149-151).
Croce supported “only the Statewide Head of the PIP/SIU
[p]ractice [g]roup,” Parker. (Doc. # 40-11 at 8). “Unlike the
attorneys assigned to [] Rollins and [] Shehaj, [] Parker is
a shareholder and [] oversees an entire practice group.”
(Id.). Croce also supported Parker on different and more
complex types of cases, “including bodily injury, uninsured
motorist, property damage, negligent security, and false
arrests.” (Id.). There are no disciplinary documents in
Croce’s file. (Id.).
One legal assistant in one of BLG’s offices was allowed
to work from home — Megan Fight. Fight is a legal assistant
in BLG’s Tampa office in the general trial practice group.
(Doc. # 45-2 at 60:6-61:14). It is unclear why Fight is
permitted to work from home; however, she does not work from
home as an accommodation for a disability. (Id.). Yet, Rollins
points out that her requests “to work from home to catch up
on [her] assignments . . . were either ignored or denied.”
(Doc. # 45-3 at 1). Rollins’ requests to work additional hours
— that is, overtime — were likewise “ignored or denied.”
(Id.).
D. Procedural History
Rollins initiated this action on September 20, 2019,
asserting claims for: pregnancy discrimination in violation
of the Pregnancy Discrimination Act (PDA) (Count 1);
retaliation in violation of the PDA (Count 2); retaliation in
violation of the Family and Medical Leave Act (FMLA) (Count
3); pregnancy discrimination in violation of the Florida
Civil Rights Act (FCRA) (Count 4); retaliation in violation
of the FCRA (Count 5); disability discrimination in violation
of the Americans with Disabilities Act (ADA) (Count 6); and
disability discrimination in violation of the FCRA (Count 7).
(Doc. # 1). BLG filed its answer on November 4, 2019, (Doc.
# 18), and the case proceeded through discovery.
Now, BLG seeks summary judgment on all claims. (Doc. #
39). The Motion is ripe for review.
II. Legal Standard
Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996)(citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing
law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997). The moving party bears the initial burden of showing
the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260
(11th Cir. 2004)(citing Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)). “When a moving party has discharged its
burden, the non-moving party must then ‘go beyond the
pleadings,’ and by its own affidavits, or by ‘depositions,
answers to interrogatories, and admissions on file,’
designate specific facts showing that there is a genuine issue
for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593-94 (11th Cir. 1995)(quoting Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, 344
F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder
evaluating the evidence could draw more than one inference
from the facts, and if that inference introduces a genuine
issue of material fact, the court should not grant summary
judgment. Samples ex rel. Samples v. City of Atlanta, 846
F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s
response consists of nothing “more than a repetition of his
conclusional allegations,” summary judgment is not only
proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981).
III. Analysis
A. ADA Retaliation
The complaint does not include a count for ADA
retaliation. The only count regarding the ADA is Count 6 for
“[d]iscrimination in violation of the [ADA].” (Doc. # 1 at 8-
9). While Rollins does assert an FCRA retaliation claim, that
claim is premised solely on alleged retaliation based on
Rollins’ allegedly complaining about pregnancy
discrimination. (Id. at 8)(alleging that “Rollins engaged in
protected activity by complaining about discriminatory
treatment based on her pregnancy” and was fired “a month after
[she] complained of pregnancy discrimination”). Thus, nowhere
in the complaint has Rollins alleged that BLG retaliated
against her on the basis of her disability — the cerebral
aneurysm. Yet, in her response to the Motion, Rollins argues
that she has established a prima facie case of ADA
retaliation. (Doc. # 45 at 19).
This is impermissible. Rollins cannot amend her
complaint in response to a summary judgment motion. See
Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th
Cir. 2004)(“At the summary judgment stage, the proper
procedure for plaintiffs to assert a new claim is to amend
the complaint in accordance with Fed. R. Civ. P. 15(a). A
plaintiff may not amend her complaint through argument in a
brief opposing summary judgment.”). After the Court brought
this issue to Rollins’ attention (Doc. # 50), Rollins moved
to amend the complaint to add an ADA retaliation claim.
However, that motion was denied. (Doc. # 59). Thus, Rollins
cannot now assert a claim for ADA retaliation.
B. Pregnancy Retaliation
In Count 2 of the complaint, Rollins asserts a claim for
retaliation in violation of the PDA, alleging BLG terminated
her employment in retaliation for complaining about perceived
pregnancy discrimination. (Doc. # 1 at 5-6). Similarly,
Rollins asserts a claim for retaliation based on pregnancy in
violation of the FCRA in Count 5, alleging BLG terminated her
for “complaining about discriminatory treatment based on her
pregnancy.” (Id. at 8).
In its Motion, BLG argues that both these claims fail
because Rollins cannot show that her complaining about not
being able to take sufficient lactation breaks was the “but-
for” cause of her termination or other employment action.
(Doc. # 39 at 26-27).
Rollins failed to address her pregnancy retaliation
claims at all in her response to the Motion. She only
addressed her claim for pregnancy discrimination under the
PDA. (Doc. # 45 at 19-20). Regarding all of her FCRA claims,
Rollins merely wrote: “for the same reasons that summary
judgment is not warranted on the federal claims, it is also
not warranted on Plaintiff’s FCRA claims.” (Doc. # 45 at 20).
As Rollins never argued that summary judgment was
inappropriate on the federal pregnancy retaliation claim,
Rollins has not raised an argument as to the FCRA pregnancy
retaliation claim either.
Because she failed to respond to BLG’s arguments
regarding pregnancy retaliation under either the PDA or the
FCRA, Rollins has abandoned these claims. See Floyd v. Home
Depot U.S.A., Inc., 274 F. App’x 763, 765 (11th Cir. 2008)(“In
his brief in opposition to Home Depot’s motion for summary
judgment, Floyd failed to respond to Home Depot’s argument
that he could not state a prima facie case of hostile
environment harassment because he could not show that the
alleged conduct was severe or pervasive or altered the terms
and conditions of his employment. Therefore, even if his claim
were not time barred, he has waived this argument.”); Powell
v. Am. Remediation & Envtl., Inc., 61 F. Supp. 3d 1244, 1253
n.9 (S.D. Ala. 2014)(“[W]here the non-moving party fails to
address a particular claim asserted in the summary judgment
motion but has responded to other claims made by the movant,
the district court may properly consider the non-movant’s
default as intentional and therefore consider the claim
abandoned.”), aff’d, 618 F. App’x 974 (11th Cir. 2015).
Summary judgment is granted on Counts 2 and 5.
C. Other Claims
All of Rollins’ remaining claims — for pregnancy
discrimination, disability discrimination, and FMLA
retaliation — are analyzed using the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), and its progeny. See Armstrong v. Flowers Hosp., Inc.,
33 F.3d 1308, 1314 (11th Cir. 1994)(holding that the burden-
shifting framework applied to pregnancy discrimination cases
is the same as analysis in other Title VII sex discrimination
cases); Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir.
2000)(“The burden-shifting analysis of Title VII employment
discrimination claims is applicable to ADA claims.”); Batson
v. Salvation Army, 897 F.3d 1320, 1328 (11th Cir.
2018)(“Where, as here, an employee alleges retaliation under
the FMLA or the ADA without direct evidence of the employer’s
intent, we apply the burden shifting framework established in
[McDonnell Douglas].”); Penaloza v. Target Corp., 549 F.
App’x 844, 846 (11th Cir. 2013)(“The analysis for a pregnancy
discrimination claim is the same as for a Title VII sex
discrimination claim. The Title VII analysis also applies to
FCRA claims.” (citation omitted)); Byrd v. BT Foods, Inc.,
948 So. 2d 921, 925 (Fla. 4th DCA 2007)(“As applied to
discrimination based on a handicap, the FCRA is construed in
conformity with the federal [ADA].”).
Under this framework, the plaintiff bears the initial
burden of establishing a prima facie case of discrimination
or retaliation, which creates a rebuttable presumption that
the employer acted illegally. McDonnell Douglas, 411 U.S. at
802–03. Once the plaintiff has established a prima facie case,
the burden shifts to the defendant. Id.; Dickinson v.
Springhill Hosps., Inc., 187 F. App’x 937, 939 (11th Cir.
2006). To rebut the presumption of discrimination or
retaliation created by the plaintiff’s prima facie case, the
defendant must provide “legitimate, nondiscriminatory
reason[s]” for the employment action taken against the
plaintiff. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 254 (1981); Standard v. A.B.E.L. Servs., Inc., 161 F.3d
1318, 1331 (11th Cir. 1998). If the defendant produces such
evidence, the burden shifts again to the plaintiff. McDonnell
Douglas, 411 U.S. at 802–03. The plaintiff then “has the
opportunity to come forward with evidence, including the
previously produced evidence establishing [his] prima facie
case, sufficient to permit a reasonable fact-finder to
conclude that the reasons given by the employer were not the
real reasons for the adverse employment decision.” Combs v.
Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997).
1. Disability Discrimination
Pursuant to the ADA, “[n]o covered entity shall
discriminate against a qualified individual on the 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). In order to
succeed on a discrimination claim under the ADA, Rollins must
show that: “(1) [s]he is disabled; (2) [s]he was a qualified
individual at the relevant time, meaning [s]he could perform
the essential functions of the job in question with or without
reasonable accommodations; and (3) [s]he was discriminated
against [] because of [her] disability.” Scott v. Shoe Show,
Inc., 38 F. Supp. 3d 1343, 1359 (N.D. Ga. 2014)(citation
omitted). “The term ‘disability’ means, with respect to an
individual — (A) a physical or mental impairment that
substantially limits one or more major life activities of
such individual; (B) a record of such an impairment; or (C)
being regarded as having such an impairment.” 42 U.S.C. §
12102(1).
BLG argues that Rollins cannot establish a prima facie
case of disability discrimination under the ADA or FCRA
because, among other reasons, she is not disabled under either
the “substantially limits a major life activity” or “regarded
as disabled” standard. (Doc. # 39 at 22-26).
In response, Rollins does not address whether BLG
regarded her as disabled and has thus waived this argument.
See Floyd, 274 F. App’x at 765. But she insists that her
aneurysm qualifies as a disability under the “substantially
limits a major life activity” standard. (Doc. # 45 at 17).
“[C]ourts are instructed that ‘[t]he term “substantially
limits” shall be construed broadly in favor of expansive
coverage, to the maximum extent permitted by the terms of the
ADA.’” Vaughan v. World Changers Church Int’l, Inc., No. 1:13-
CV-0746-AT, 2014 WL 4978439, at *8–9 (N.D. Ga. Sept. 16,
2014)(quoting 29 C.F.R. § 1630.2(j)(1)(i)). “Under this more
lenient standard, courts consider whether an impairment
‘substantially limits the ability of an individual to perform
a major life activity as compared to most people in the
general population.’” Id. (quoting 29 C.F.R. §
1630.2(j)(ii)). “Even an episodic impairment may be a
disability under the Act ‘if it would substantially limit a
major life activity when active.’” Id. (quoting 42 U.S.C.
12102(4)(D)).
To prove she is disabled, Rollins points to her
declaration, in which she avers that her aneurysm “causes
vision issues and headaches,” which “make [her] unable to
work, drive, read, concentrate, think clearly, and see.”
(Doc. # 45-3 at 1). But Rollins does not aver that the vision
issues and headaches caused by her aneurysm “substantially
limit” these major life activities. Additionally, Rollins
does not identify in the declaration how frequently she
suffers from vision problems and headaches. See Munoz v. Selig
Enterprises, Inc., No. 116CV03924MHCJCF, 2018 WL 9440321, at
*6 (N.D. Ga. July 3, 2018)(“Plaintiff generally asserts that
there were occasions on which she was unable to control her
digestive functions, sit at a desk, or operate a vehicle. But
the record does not reflect how frequently such episodes
occurred — if indeed more than once — such that a jury could
infer those activities were substantially limited by her
symptoms.”), report and recommendation adopted as modified,
No. 1:16-CV-3924-MHC, 2018 WL 9441063 (N.D. Ga. Sept. 20,
2018).
At most, Rollins wrote in one email toward the end of
her employment that she suffered headaches “at least twice a
week.” (Doc. # 40-11 at 131-32). Her occasional symptoms only
lasted a couple of hours to a day or two. (Doc. # 40-1 at
18:16-19:4, 25:5-8). Because the symptoms are intermittent,
Rollins testified that the aneurysm limited her ability to
work on “some days” only. (Id. at 24:15-18). When she did
experience vision problems and headaches during work, Rollins
could go home early to sleep. (Id. at 18:12-19:3, 24:5-25:8,
55:2-10).
Regarding the major life activities of driving, reading,
concentrating, thinking clearly, and seeing, the evidence is
insufficient to show that Rollins’ aneurysm “substantially
limited” these activities. Rollins was only limited in these
activities when she had sporadic episodes of blurred vision
or headaches. And she has produced no evidence, besides the
conclusory statement in her declaration, to support that
these activities were substantially limited during an
episode. See, e.g., Allen v. SouthCrest Hosp., 455 F. App’x
827, 832–33 (10th Cir. 2011)(“[T]aken as a whole, the evidence
showed that Ms. Allen’s migraines, when active and treated
with medication, did not permit her to perform activities to
care for herself in the evenings and compelled her to go to
sleep instead. But it was her burden to make more than a
conclusory showing that she was substantially limited in the
major life activity of caring for herself as compared to the
average person in the general population.”); Munoz, 2018 WL
9440321, at *7 (“The record evidence of Plaintiff’s
impairments — specifically, her own declaration and
deposition testimony — is simply too undeveloped to support
an inference by a reasonable factfinder that any of her major
life activities were substantially limited by her
impairments.”); Vaughan, 2014 WL 4978439, at *10 (“The Court
recognizes that an ADA plaintiff does not necessarily need
medical evidence to substantiate her disability assertions.
But in this case, given the conclusory nature of her own
affidavit, and vague nature of her deposition testimony,
without additional clarity — from, for example, a medical
professional — regarding the specific pain her medical
condition caused and the limitations on major life activities
resulting from the condition and pain, a jury has no evidence
from which to infer that Vaughan’s condition was
substantial.”).
In short, while Rollins’ declaration and deposition
establish that these major life activities were affected by
her occasional headaches and vision issues, they do not
establish a substantial limitation of these activities. See
Woolf v. Bloomberg L.P., No. 16-CV-6953 (PKC), 2019 WL
1046656, at *12 (S.D.N.Y. Mar. 5, 2019)(“Hutchinson’s letter
and Woolf’s deposition testimony are some evidence that
Woolf’s migraines affected his major life activities of
seeing and speaking, but they do not go toward whether those
activities were ‘substantially limit[ed] . . . as compared to
most people in the general population.’ Woolf has not directed
the Court to evidence of how and to what extent his sight,
speech and concentration were affected. Drawing every
reasonable inference in favor of Woolf, he has demonstrated
only that these categories of life activity were in some way
affected by his migraines, but not that they were
substantially limited.” (citations omitted)), aff’d sub nom.
Woolf v. Strada, 949 F.3d 89 (2d Cir. 2020), and aff’d sub
nom. Woolf v. Strada, 792 F. App’x 143 (2d Cir. 2020).
Nor does the evidence establish that Rollins was
substantially limited in the major life activity of working.
“A plaintiff claiming that she is substantially limited in
the major life activity of working must establish that her
condition significantly restricts her ability to perform
either a class of jobs or a broad range of jobs in various
classes as compared to the average person having comparable
training, skills, and abilities.” Hudson v. Tyson Farms,
Inc., 769 F. App’x 911, 916 (11th Cir. 2019).
There is nothing in the record to suggest that Rollins
was significantly restricted in her ability to perform her
job, let alone a broad range of other jobs. See Id.; see also
Ward v. City of Gadsden, No. 4:15-CV-0865-VEH, 2017 WL 568556,
at *7 (N.D. Ala. Feb. 13, 2017)(“[T]here is no record of Mr.
Ward’s missing a substantial amount of work as compared to
most other people because of his depression or being
disciplined substantially more than others due to missed days
attributable to his treatment for depression. . . . While Mr.
Ward did occasionally miss work to see his VA doctor, there
is no indication that these missed days substantially
impacted his overall ability to perform his job as compared
to other people or even that those missed days led to his
discharge.”).
Thus, a reasonable jury could not conclude that Rollins
is disabled under the ADA or the FCRA. Summary judgment is
granted to BLG on the disability discrimination claims,
Counts 6 and 7.
2. Pregnancy Discrimination
The PDA amended Title VII to include “pregnancy,
childbirth, or related medical conditions” in its definition
of sex-based discrimination. 42 U.S.C. § 2000e(k)(2). BLG
does not contest Rollins’ argument that breastfeeding is a
protected classification. Indeed, the Eleventh Circuit has
explicitly held that breastfeeding is covered by the PDA.
See Hicks v. City of Tuscaloosa, Alabama, 870 F.3d 1253, 1260
(11th Cir. 2017)(“We have little trouble concluding that
Congress intended the PDA to include physiological conditions
post-pregnancy. The PDA would be rendered a nullity if women
were protected during a pregnancy but then could be readily
terminated for breastfeeding — an important pregnancy-related
‘physiological process.’”).
Rollins “must establish a prima facie case by showing
that (1) she belongs to a protected class; (2) she was
qualified to do the job; (3) she was subjected to an adverse
employment action; and (4) her employer treated similarly
situated employees outside her class more favorably.”
Penaloza, 549 F. App’x at 846 (11th Cir. 2013).
Importantly, the Eleventh Circuit has clarified that
“[t]aking adverse actions based on [a] woman’s breastfeeding
is prohibited by the PDA but employers are not required to
give special accommodations to breastfeeding mothers.” Hicks,
870 F.3d at 1260. “Instead employers are only required to
treat pregnant employees the same as ‘other persons not so
affected but similar in their ability or inability to work.’”
Poague v. Huntsville Wholesale Furniture, 369 F. Supp. 3d
1180, 1196 (N.D. Ala. 2019)(quoting 42 U.S.C. § 2000e(k));
see also Hicks, 870 F.3d at 1261 (finding that a valid PDA
claim existed when plaintiff “showed that other employees
with temporary injuries were given ‘alternative duty,’ and
[plaintiff] merely requested to be granted the same
alternative duty.”). Hicks did not suggest that a plaintiff
can establish a claim of pregnancy discrimination simply by
pointing out that she did not receive a sufficient
accommodation for her breastfeeding. See also Dudhi v. Temple
Health Oaks Lung Ctr., No. CV 18-3514, 2020 WL 996915, at *7
(E.D. Pa. Mar. 2, 2020)(“Ms. Dudhi’s claims do not turn on
whether she, as a breastfeeding mother, requested and was
denied an accommodation. Rather, they turn on whether
similarly situated, non-breastfeeding employees were treated
more favorably than she was.”).
BLG argues that Rollins’ pregnancy discrimination
claims, Counts 1 and 4, fail because Rollins was not qualified
for her job, she has not identified relevant comparators, and
she cannot establish pretext for her termination. (Doc. # 39
at 19-22, 29).
Rollins failed to address BLG’s argument regarding her
qualifications. Therefore, Rollins has abandoned the argument
that she was qualified for her position. See Floyd, 274 F.
App’x at 765 (“In his brief in opposition to Home Depot’s
motion for summary judgment, Floyd failed to respond to Home
Depot’s argument that he could not state a prima facie case
of hostile environment harassment because he could not show
that the alleged conduct was severe or pervasive or altered
the terms and conditions of his employment. Therefore, even
if his claim were not time barred, he has waived this
argument.”). Thus, Rollins’ pregnancy discrimination claims
fail based on this element alone.
Regardless, even if Rollins had shown that she was
qualified for her job, summary judgment would still be
appropriate on these claims. Rollins has failed to identify
non-pregnant comparators treated more favorably. “[A]
plaintiff proceeding under McDonnell Douglas must show that
she and her comparators are ‘similarly situated in all
material respects.’” Lewis v. City of Union City, 918 F.3d
1213, 1226 (11th Cir. 2019). To determine whether a comparator
is similarly situated in all material respects, courts
consider whether the comparator (1) “engaged in the same basic
conduct (or misconduct) as the plaintiff”; (2) has “been
subject to the same employment policy, guideline, or rule as
the plaintiff”; (3) “ordinarily (although not invariably)
[has] been under the jurisdiction of the same supervisor as
the plaintiff”; and (4) “share[d] the plaintiff’s employment
or disciplinary history.” Id. at 1227-28.
Rollins states in the pregnancy discrimination section
of her response: “The facts here show that other employees
were allowed to work extended hours and/or work from home to
catch up on work but [Rollins] was not.” (Doc. # 45 at 20).
But Rollins does not name these comparators, provide analysis
on whether these comparators are similarly situated, or cite
any record evidence in support of that statement.
At most, Rollins mentions two potential comparators in
her statement of material facts: Onelja Shehaj and Megan
Fight. (Id. at 7-8). In her statement of material facts,
Rollins merely identifies Fight as “[a]t least one other legal
assistant at BLG [who] was allowed to work from home.” (Id.
at 8). However, not enough information is provided to support
that Fight is an appropriate comparator. Fight is a legal
assistant in BLG’s Tampa office in the general trial practice
group who is permitted to work from home. (Doc. # 45-2 at
60:6-61:14). But there is no evidence in the record why Fight
is permitted to work from home, besides that she does not
work from home as a disability accommodation. (Id.). Nor is
there any information about Fight’s performance or
disciplinary history. Without any further evidence in the
record or analysis by Rollins regarding Fight, Rollins has
not shown that Fight is similarly situated to her. Indeed,
the limited information about Fight suggests that she is not
similarly situated in all material respects because she
worked in a different BLG office in a different practice
group.
Regarding Shehaj, who was also a legal assistant in the
PIP/SIU practice group in BLG’s St. Petersburg office,
Rollins averred in her declaration that she once overheard
Shehaj “flatly refus[e] to do work assigned by her attorney.”
(Doc. # 45-3 at 2). Additionally, Rollins emphasizes that
Shehaj “was counseled more than once about working
unauthorized overtime.” (Doc. # 45 at 7). However, these
allegations do not support that Shehaj was allowed to work
extended hours or from home, while Rollins was not. Indeed,
Shehaj was disciplined for working unauthorized overtime,
suggesting she was not permitted to work extended hours. (Doc.
# 40-11 at 146-48). Thus, there is no evidence that Shehaj
was similarly situated to Rollins but was allowed to work
overtime hours or work from home.
In short, Rollins has failed to establish a prima facie
case of pregnancy discrimination. Summary judgment is
accordingly granted for BLG on these counts.
3. FMLA Retaliation
i. Prima Facie Case
“Where, as here, a plaintiff alleges an FMLA retaliation
claim without direct evidence of the employer’s retaliatory
intent, [courts] apply the burden shifting framework
established by the Supreme Court in” McDonnell Douglas.
Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286,
1297 (11th Cir. 2006). “A plaintiff bringing an FMLA
retaliation claim must show that his employer intentionally
discriminated against him in the form of an adverse employment
action for having exercised an FMLA right.” Bradley v. Army
Fleet Support, LLC, 54 F. Supp. 3d 1272, 1282 (M.D. Ala.
2014). “To state a prima facie case of retaliation under the
FMLA, a plaintiff must show that (1) he engaged in a
statutorily protected activity, (2) he suffered an adverse
employment action, and (3) the adverse action was causally
related to a protected activity.” Id. “If the plaintiff makes
out a prima facie case, the burden shifts to the defendant to
articulate a legitimate, non-discriminatory reason for the
adverse employment action.” Id.
Regarding the prima facie case, BLG argues that only
Rollins’ termination qualifies as a materially adverse action
and that Rollins cannot establish causation for her
termination.
In the context of a Title VII retaliation claim, the
Supreme Court held that “a plaintiff must show that a
reasonable employee would have found the challenged action
materially adverse, ‘which in this context means it well might
have “dissuaded a reasonable worker from making or supporting
a charge of discrimination.”’” Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 68 (2006). This is because “[t]he
anti-retaliation provision protects an individual not from
all retaliation, but from retaliation that produces an injury
or harm.” Id. at 67. This standard is “decidedly more relaxed”
than the standard for adverse employment actions applicable
to discrimination cases. Crawford v. Carroll, 529 F.3d 961,
973 (11th Cir. 2008).
It appears that the Eleventh Circuit has not yet decided
whether the Burlington Northern standard applies to FMLA
retaliation claims. See Foshee v. Ascension Health-IS, Inc.,
384 F. App’x 890, 891 (11th Cir. 2010)(“[W]e have not
addressed whether the ‘materially adverse effect’ standard
articulated in Burlington Northern should apply to claims of
FMLA retaliation. However, it is unnecessary for us to decide
whether Burlington Northern applies in FMLA retaliation cases
in order to dispose of this appeal . . .”). However, multiple
other circuits have held that the Burlington Northern
standard applies to FMLA retaliation claims. See Millea v.
Metro-N. R.R. Co., 658 F.3d 154, 164 (2d Cir. 2011)(“We
therefore join our sister circuits that have considered this
issue and apply the Burlington Northern standard for
materially adverse action to the FMLA context.”); Breneisen
v. Motorola, Inc., 512 F.3d 972, 979 (7th Cir. 2008)(applying
Burlington Northern anti-retaliation standard to FMLA
retaliation claims); Metzler v. Fed. Home Loan Bank of Topeka,
464 F.3d 1164, 1171 n.2 (10th Cir. 2006)(same). Thus, the
Court finds that the more lenient Burlington Northern
standard applies to this claim.
Even under the Burlington Northern standard, one of the
three employment actions Rollins complains of cannot support
her claim. Specifically, in her response, Rollins states that
“a number of things [] happened to [Rollins] after her return
from FMLA leave and request for accommodations — from the
increased workload, to being scolded for asking for help, to
being terminated — that could dissuade a reasonable employee
from exercising their own rights under the FMLA.” (Doc. # 45
at 13). Thus, Rollins bases her FMLA retaliation claim on (1)
her workload, (2) being chastised for asking for help, and
(3) her termination.
Regarding asking for help, Rollins avers in her
declaration that she “was told that [she] could ask for help
if [she] was overwhelmed.” (Doc. # 45-3 at 1). But, “when
[she] did ask another assistant for help, [she] was
reprimanded and told that [she] had to ask an attorney’s
permission each time prior to asking another staff member for
help,” which Rollins considered impractical. (Id.). The
record reflects that all legal assistants were required to
receive attorney approval before asking a fellow assistant to
help with her assignments. (Doc. # 40-11 at 119).
Being told by a supervisor to get attorney approval
before asking another legal assistant for help is not a
“materially adverse” action that would dissuade a reasonable
worker from making or supporting a charge of discrimination.
It is a trivial harm. See Sanders v. Benjamin Moore & Co.,
No. 4:11-CV-0397-JEO, 2015 WL 1489855, at *41 (N.D. Ala. Mar.
31, 2015)(“[I]t is clear that the ‘nitpicking’ (i.e., the
requirement that plaintiff attend weekly meetings with Recca,
Recca’s criticism of plaintiff’s calendar entries, and
Pallozzi’s comments that plaintiff was ‘insubordinate’)
amounts to trivial harms.”). Being scolded for asking for
help without approval is less severe than other actions —
such as placing an employee on a performance improvement plan
or formal coachings — that have been held insufficient to
support retaliation claims. See Jarvis v. Siemens Med. Sols.
USA, Inc., 460 F. App’x 851, 858 (11th Cir. 2012)(holding
that placement on performance improvement plan was not
materially adverse action to establish prima facie case of
retaliation); Hall v. Dekalb Cty. Gov’t, 503 F. App’x. 781,
790 (11th Cir. 2013)(concluding that a written counseling was
not a materially adverse action because the plaintiff “failed
to explain how it negatively impacted his employment”).
Rollins has not shown that she was injured or harmed by being
scolded for failing to get attorney approval or that it had
a significant impact on her employment. See Godbolt v. Sam’s
E., Inc., No. 8:12-cv-1650-T-24TBM, 2013 WL 4781064, at *6
(M.D. Fla. Sept. 6, 2013)(“Plaintiff, however, has not shown
that she was injured or harmed by the coachings or that it
had any significant impact on her employment. This is fatal
to her claim.”). Thus, she cannot proceed based on this
employment action.
However, the Court finds that Rollins’ heavy workload
when she returned from leave was a materially adverse action.
True, an increased workload is not an adverse employment
action for discrimination claims. See Grimsley v. Marshalls
of MA, Inc., 284 F. App’x 604, 609 (11th Cir. 2008)(“Although
Grimsley’s workload sometimes increased and he was
occasionally assigned additional tasks, these kinds of
temporary assignments, without a change in compensation or
position, do not amount to a ‘serious and material change in
the terms, conditions, or privileges of employment.’”).
Still, an increased workload meets the lower Burlington
Northern standard. A heavy workload could dissuade a
reasonable employee from engaging in protected activity. See
Smith v. Quintiles Transnational Corp., 509 F. Supp. 2d 1193,
1203 (M.D. Fla. 2007)(holding that placement on a performance
improvement plan was a materially adverse action for purposes
of a retaliation claim because the plan resulted in, among
other things, “an increased workload”); Burlington N., 548
U.S. at 70–71 (“Common sense suggests that one good way to
discourage an employee such as White from bringing
discrimination charges would be to insist that she spend more
time performing the more arduous duties and less time
performing those that are easier or more agreeable. That is
presumably why the EEOC has consistently found ‘[r]etaliatory
work assignments’ to be a classic and ‘widely recognized’
example of ‘forbidden retaliation.’”).
Thus, the two employment actions on which Rollins may
base her FMLA retaliation claim are her workload and her
termination. But Rollins cannot establish that these actions
were causally related to her use of FMLA leave. Generally, a
plaintiff can satisfy the causation prong by “prov[ing] that
the protected activity and the negative employment action are
not completely unrelated.” Meeks v. Computer Assocs., 15 F.3d
1013, 1021 (11th Cir. 1994).
Here, there is significant record evidence that the
workloads of all BLG employees in the PIP/SIU group increased
while Rollins was out on leave. During the summer of 2018, “a
client sent a large number of new glass cases to BLG to
handle.” (Doc. # 40-10 at 5). And Rollins acknowledged that
all legal assistants were very busy at this time. (Doc. # 40-
1 at 95:21-96:21, 98:12-20, 192:3, 192:10-14). Although there
was temporal proximity between her return from FMLA leave and
her increased workload, the evidence shows that Rollins’
workload was higher after her leave because the PIP/SIU group
as a whole became significantly busier while Rollins was out
on leave. Thus, there is no genuine issue of material fact
regarding the cause of Rollins’ increased workload.
Rollins has also failed to establish causation regarding
her termination. “The FMLA does not insulate an employee who
has requested medical leave from being terminated for poor
performance. So long as the employer would have taken the
same action it did regardless of the request for leave, there
is no statutory violation.” Gamba v. City of Sunrise, 157 F.
App’x 112, 113 (11th Cir. 2005). Here, the record is replete
with evidence of Rollins’ performance issues before she took
FMLA leave, which continued after she returned from leave.
See Id. (“Although Gamba contends his termination was in
retaliation for having requested leave under FMLA, the City’s
position that he was terminated after numerous documented
instances of unsatisfactory job performance is well-supported
by the record.”). Rollins had been informed that her
performance needed to improve before she caused a second
default, ultimately resulting in her termination.
The lack of temporal proximity further supports the lack
of causal connection between Rollins’ FMLA leave and
termination. Rollins first informed BLG of her upcoming need
for FMLA leave in October 2017, seventeen months before her
termination. Rollins began her FMLA leave in June 2018 and
was terminated on March 25, 2019 — a span of nine months. And
Rollins returned from FMLA leave in early September 2018 —
over six months before her termination. Thus, Rollins cannot
establish causation by temporal proximity. See Brisk v.
Shoreline Found., Inc., 654 F. App’x 415, 417 (11th Cir. 2016)
(“[T]he district court correctly granted summary judgment
because there was no causal connection between the protected
conduct — Brisk taking FMLA leave — and the adverse event,
termination, when the temporal proximity of four months was
tenuous and there was an intervening cause of poor work
performance.”).
Summary judgment is therefore granted to BLG on Rollins’
FMLA retaliation claim, Count 3.
ii. Non-Retaliatory Reason and Pretext
Even if Rollins could establish a prima facie case of
retaliation based on her increased workload and termination,
BLG has produced legitimate, non-discriminatory reasons for
those actions and Rollins has not shown a genuine issue of
material fact regarding pretext.
As mentioned above, BLG noted that it became very busy
in the summer of 2018 — while Rollins was out on FMLA
maternity leave — because “a client sent a large number of
new glass cases to BLG to handle.” (Doc. # 40-10 at 5). Thus,
all members of the PIP/SIU group had increased workloads
during September 2018, when Rollins returned from leave.
Additionally, BLG explains that it terminated Rollins because
of “her well-documented history of repeated performance
errors, with the March 2019 failure to calendar a deadline
that caused yet another default being the last straw.” (Doc.
# 39 at 29). Thus, BLG has met its burden of producing
legitimate, non-discriminatory reasons for its actions.
The burden now shifts to Rollins to show pretext. “A
legitimate nondiscriminatory reason proffered by the employer
is not a pretext for prohibited conduct unless it is shown
that the reason was false and that the real reason was
impermissible retaliation or discrimination.” Worley v. City
of Lilburn, 408 F. App’x 248, 251 (11th Cir. 2011)(citing St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). “If
the proffered reason is one that might motivate a reasonable
employer, a plaintiff cannot merely recast the reason, but
must meet it ‘head on and rebut it.’” Id. (quoting Chapman v.
AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000)). Thus, to
show pretext, an employee must demonstrate “such weaknesses,
implausibilities, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that
a reasonable factfinder could find them unworthy of
credence.” McCann v. Tillman, 526 F.3d 1370, 1375 (11th Cir.
2008)(quoting Cooper v. Southern Co., 390 F.3d 695, 725 (11th
Cir. 2004)).
Rollins has not presented sufficient evidence of
pretext. She has not rebutted that her workload increased
upon her return from FMLA leave because her practice group
had become significantly busier while she was out. While
Rollins felt that she had the highest workload, she testified
that all legal assistants and attorneys in the PIP/SIU group
were “overwhelmed by all the new cases” that had come in
during the summer of 2018. (Doc. # 40-1 at 95:21-96:21, 189:9-
15). Her mere belief that her workload was increased the most
in retaliation for taking leave fails to create a genuine
issue of material fact regarding pretext and her workload.
Rollins also acknowledges that she made numerous
mistakes before she was terminated, and the record supports
BLG’s progressive counseling and disciplining of Rollins.
Although Rollins insists that BLG did not terminate Gonzalez
and Shehaj, “employees who had similar or worse performance
issues,” neither is similarly situated to Rollins. (Doc. # 45
at 15). Gonzalez is an attorney — not a legal assistant — and
there is no evidence of poor performance by her. There is no
evidence that Shehaj committed the same types of errors as
Rollins; the record only shows that Shehaj was occasionally
insubordinate and worked unapproved overtime. Thus, Shehaj
and Gonzalez are dissimilar from Rollins and cannot be used
as comparators to prove pretext. See Lewis, 918 F.3d at 1226
(“[A] plaintiff proceeding under McDonnell Douglas must show
that she and her comparators are ‘similarly situated in all
material respects.’”). In short, despite her arguments on
this issue (Doc. # 45 at 15-16), Rollins has not rebutted
BLG’s legitimate, non-discriminatory reason for terminating
Rollins.
While Rollins is clearly dissatisfied with BLG’s
treatment of her, it is not the Court’s place to question an
employer’s judgment. See Damon v. Fleming Supermarkets of
Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999)(“We are not
in the business of adjudging whether employment decisions are
prudent or fair. Instead, our sole concern is whether unlawful
discriminatory animus motivates a challenged employment
decision.”). The Court merely reviews whether an employer’s
decision was motivated by retaliation. Here, Rollins has not
created a genuine issue of material fact as to that question.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1) Defendant Banker Lopez & Gassler, PA’s Motion for
Summary Judgment (Doc. # 39) is GRANTED.
(2) The Clerk is directed to enter judgment in favor of
Defendant Banker Lopez & Gassler, PA and against
Plaintiff Jennifer Rollins on all counts of the
complaint.
(3) Thereafter, the Clerk is directed to terminate all
pending deadlines and CLOSE the case.
DONE and ORDERED in Chambers in Tampa, Florida, this
30th day of July, 2020.
VIRGINIA M. HERNANDEZ’COVINGTON
UNITED STATES DISTRICT JUDGE
56