Blackmon v. Lee Memorial Health System

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

SANDRA BLACKMON,

Plaintiff,

v. Case No: 2:19-cv-625-FtM-NPM

LEE MEMORIAL HEALTH SYSTEM,

Defendant.

OPINION AND ORDER

This matter comes before the Court on review of defendant’s

Motion for Summary Judgment and Incorporated Memorandum of Law

(Doc. #24) filed on October 12, 2020. Plaintiff filed a Response

and Opposition (Doc. #33) on November 16, 2020, to which Defendant

filed a Reply (Doc. #37) on November 20, 2020.

Plaintiff Sandra Blackmon (Plaintiff or Blackmon) filed a

two-count Complaint (Doc. #1) against her former employer Lee

Memorial Health System (Lee Memorial or Defendant). Both counts

seek relief under the Family and Medical Leave Act of 1933 (FMLA).

Count I alleges a claim of unlawful interference under the FMLA

for terminating her employment in January 2019, and thereby

refusing to allow her to exercise her FMLA leave rights. Count II

alleges a claim of unlawful retaliation under the FMLA for

terminating her employment in January 2019, because of her use or

attempted use of FMLA protected leave. Lee Memorial now seeks

summary judgment for each claim in the Complaint. For the reasons

set forth below, the motion is granted.

I.

Motions for summary judgment should only be granted when the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, show “there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex

Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d

265 (1986). “An issue of fact is ‘genuine’ if the record taken as

a whole could lead a rational trier of fact to find for the

nonmoving party.” Baby Buddies, Inc. v. Toys “R” Us, Inc., 611

F.3d 1308, 1314 (11th Cir. 2010). A fact is “material” if it may

affect the outcome of the suit under governing law. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A court must

decide ‘whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law.’” Hickson Corp. v. N.

Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004)(quoting

Anderson, 477 U.S. at 251).

In ruling on a motion for summary judgment, the Court views

all evidence and draws all reasonable inferences in favor of the

nonmoving party. Tana v. Dantanna's, 611 F.3d 767, 772 (11th Cir.

2010). However, "[i]f reasonable minds might differ on the

inferences arising from undisputed facts, then the court should

deny summary judgment." St. Charles Foods, Inc. v. America's

Favorite Chicken Co., 198 F.3d 815, 819 (11th Cir. 1999) (quoting

Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-

97 (11th Cir. 1983)). "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, then

the court should not grant summary judgment." Allen v. Bd. of

Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1315 (11th Cir. 2007).

II.

Viewed in the light most favorable to Plaintiff, the material

relevant facts are as follows: Plaintiff was employed by Lee

Memorial at the Golisano Children’s Hospital (the Hospital) from

November 2016 until her termination on January 24, 2019. (Doc.

#24, ¶¶ 1, 3; Doc. #25-1, p. 18, 20; Doc. #33-1, ¶¶ 3, 6.)

Plaintiff worked as a registered respiratory therapist in the

Hospital’s Respiratory Care Department, which provides diagnostic

and therapeutic respiratory services to patients. (Doc. #24, ¶¶ 2-

3; Doc. #28, ¶ 4; Doc. #33-1, ¶ 7; Doc. #44, p. 8, ¶ 2.) As a

respiratory therapist, Plaintiff was required to “float” between

various departments at the Hospital, including the Neonatal

Intensive Care Unit (NICU), the Pediatric Intensive Care Unit

(PICU), Pediatrics, and the Emergency Department. (Doc. #24, ¶ 4;

Doc. #27-1, ¶¶ 3-4; Doc. #28, ¶ 4; Doc. #33-1, ¶ 8; Doc. #44, p.

8, ¶ 3.) In doing so, she was scheduled to work varying shifts in

different departments. (Doc. #24, ¶ 5; Doc. #28, ¶ 4.) Plaintiff

primarily worked night shifts either in the NICU or PICU, on an as

needed basis. (Doc. #24, ¶ 5.) Plaintiff reported to NICU

supervisor La Reina Walsh and PICU supervisor Monica Collins (Ms.

Collins), both of whom in turn directly reported to the Hospital’s

Director of Respiratory Care, Jeff Campbell (Director Campbell).

(Doc. #24, ¶ 6; Doc. #27-1, ¶ 4; Doc. #28, ¶ 3; Doc. #33-1, ¶ 8;

Doc. #44, p. 8, ¶ 4.)

On January 16, 2019, a video was taken of Plaintiff with her

eyes closed and her feet propped up on the desk in the front of

the Hospital’s resuscitation room in the Emergency Department.

(Doc. #28, ¶ 7; Doc. #28-2; Doc. #44, p. 10, ¶14.) On or about

January 21, 2019, the Director of the Emergency Services Department

sent Director Campbell a text message along with a copy of the

January 16, 2019 video. (Docs. ##28, ¶ 7; 28-1; 28-2; Doc. #44,

p. 10, ¶ 14.) In addition to the video, Director Campbell received

written complaints from two Emergency Department employees which

stated that on January 16, 2019 Plaintiff was sleeping in this

position off and on for approximately one hour. (Doc. #28, ¶ 8;

Doc. #44, p. 10, ¶ 15.)

The parties agree that on January 22, 2019 Director Campbell

made the decision to terminate Plaintiff’s employment. (Doc. #44,

p. 10, ¶ 16.) Sleeping on-the-job is considered “gross misconduct”

under Lee Memorial’s Corrective Action Policy and called for

immediate termination. (Doc. #28, ¶¶ 9-10; Doc. #28-3, pp. 8-9;

Doc. #44, p. 9, ¶ 7.)

On either January 22, or January 23, 2019, Director Campbell

told Ms. Collins, Plaintiff’s supervisor, of his decision to

discharge Plaintiff. (Doc. #28, ¶ 11; Doc. #27-1, ¶ 7.) Ms. Collins

agreed with Director Campbell’s termination decision, although her

agreement was unnecessary since Director Campbell was to sole

decisionmaker. (Doc. #27-1, ¶ 7; Doc. #28, ¶ 11.) Director

Campbell instructed Ms. Collins to schedule a meeting with himself,

Ms. Collins, and Plaintiff on January 24, 2019, for the sole

purpose of terminating Plaintiff’s employment. (Doc. #27-1 ¶ 8;

Doc. #28, ¶ 11.)

Later, on January 23, 2019, Plaintiff informed Ms. Collins

that she may need FMLA leave for herself and was going to a doctor

for testing. (Doc. #25-1, pp. 36, 42; Doc. #27-1, ¶ 9; Doc. #44,

p. 10, ¶ 17.) Plaintiff also inquired of Ms. Collins about comments

and looks she had received from her peers which made Plaintiff

believe she was “in trouble again.” (Doc. #25-1, p. 38.) Plaintiff

stated “[s]cuttlebutt has it that I’m in trouble for something.”

(Id.) Ms. Collins asked Plaintiff if she had fallen asleep on-

the-job, and informed Plaintiff that Director Campbell was going

to talk with Plaintiff the following day. (Id.; Doc. #33-1, ¶

29.) Ms. Collins did not share any information about Plaintiff’s

possible need for FMLA leave with Director Campbell or any other

Lee Memorial employee. (Doc. #27-1, ¶ 9; Doc. #28, ¶ 14.)

According to Plaintiff, shortly after her discussion with Ms.

Collins on January 23, 2019, she attempted (sometime after

midnight) to submit an FMLA request for intermittent leave on

Aetna’s online portal, but she was unable to do so since the

computer system generated an error message. (Doc. #25-1, p. 39.)

Plaintiff indicated on her FMLA submission that she was requesting

leave for either “personal illness” or “possible biopsies.” (Id.)

The meeting to inform Plaintiff of her termination occurred

as scheduled on January 24, 2019, with Director Campbell, Ms.

Collins, and Plaintiff being present. (Doc. #27-1, ¶ 10; Doc.

#28, ¶ 12; Doc. #33-1, ¶ 31; Doc. #44, p. 10, ¶¶ 18-19.) Director

Campbell did not know of Plaintiff’s recent discussion with Ms.

Collins or attempted request for FMLA leave. (Doc. #25-1, pp. 39,

45-46; Doc. #28, ¶ 13.) Director Campbell informed Plaintiff she

was being discharged due to sleeping on-the-job during her January

16, 2019 shift, which was considered gross misconduct and grounds

for immediate dismissal pursuant to Lee Memorial’s Policies. (Doc.

#28-1, ¶ 12; Doc. #44, p. 10, ¶ 19.) Plaintiff states that during

the termination meeting she informed Director Campbell and Ms.

Collins that she was filing for FMLA and referenced her possible

“cancer.” (Doc. #33-1, ¶ 37.) Director Campbell states in his

declaration that upon being notified of her termination, Plaintiff

abruptly got up and proceeded to leave his office while making a

comment about “cancer.” (Doc. #28, ¶ 13.) Director Campbell did

not have any knowledge about the meaning of Plaintiff’s comment,

nor was he able to speak with Plaintiff since she immediately left

his office. (Id.)

III.

“The FMLA provides eligible employees the right to 12 weeks

of leave for a serious health condition that makes the employee

unable to perform the functions of her position.” Munoz v. Selig

Enterprises, Inc., 981 F.3d 1265, 1274 (11th Cir. 2020) (citing

Batson v. Salvation Army, 897 F.3d 1320, 1328 (11th Cir. 2018));

29 U.S.C. § 2612(a)(1)(D)). The FMLA also creates private causes

of action for equitable relief and money damages for employer

violations of the FMLA. 29 U.S.C. §§ 2615(a)(1), 2617(a). An

employee may bring two types of FMLA claims: "interference claims,

in which an employee asserts that h[er] employer denied or

otherwise interfered with h[er] substantive rights under the Act;

and retaliation claims, in which an employee asserts that h[er]

employer discriminated against h[er] because [s]he engaged in an

activity protected by the Act." Strickland v. Water Works & Sewer

Bd., 239 F.3d 1199, 1206 (11th Cir. 2001). See also Hurley v. Kent

of Naples, Inc., 746 F.3d 1161, 1166 (11th Cir. 2014)(“the FMLA

allows employees to bring a private cause of action for

interference or retaliation."). Both FMLA interference and

retaliation claims require the employee to establish that he or

she qualified for leave. Hurley, 746 F.3d at 1166-67.

A. FMLA Interference Claim

It is unlawful "for any employer to interfere with, restrain,

or deny the exercise of or the attempt to exercise" FMLA rights.

29 U.S.C. § 2615(a)(1). “An FMLA interference claim lies if an

employee can demonstrate by a preponderance of the evidence that

she was entitled to an FMLA benefit and her employer denied her

that benefit.” Munoz, 981 F.3d at 1274 (citation omitted). The

employee must also show harm from the interference which is

“remediable by either damages or equitable relief.” Id. (citing

Evans v. Books-A-Million, 762 F.3d 1288, 1295-96 (11th Cir. 2014)).

Causation is not an element of an interference claim, but the

employer can raise the lack of causation as an affirmative defense.

Spakes v. Broward County Sheriff's Office, 631 F.3d 1307, 1309–10

(11th Cir. 2011). If an employer demonstrates that it would have

discharged an employee “for a reason wholly unrelated to the FMLA

leave, the employer is not liable” under the FMLA. Strickland, 239

F.3d at 1208. Courts look to whether the request for leave was

the proximate cause of the termination. Schaaf v. SmithKline

Beecham Corp., 602 F.3d 1236, 1242 (11th Cir. 2010). Thus,

Unlike with an FMLA retaliation claim, to succeed on an

FMLA interference claim an employee need only

demonstrate by a preponderance of the evidence that she

was entitled to an FMLA benefit that was denied. In

general, “the employer's motives are irrelevant” to an

interference claim. Where the claim is based on an

employee's termination, however, . . . an employer may

affirmatively defend against the claim by establishing

that it would have terminated the employee regardless of

her request for or use of FMLA leave.

Batson, 897 F.3d at 1331 (internal citations omitted).

B. FMLA Retaliation Claim

“The FMLA prohibits employers from retaliating against

employees for engaging in protected activities.” Munoz, 981 F.3d

at 1275. To establish a FMLA retaliation claim, Plaintiff "must

demonstrate that h[er] employer intentionally discriminated

against h[er] in the form of an adverse employment action for

having exercised an FMLA right." Aponte v. Brown & Brown of Fla.,

Inc., 806 F. App'x 824, 829 (11th Cir. 2020) (quoting Strickland,

239 F.3d at 1207. To establish a prima facie case of FMLA

retaliation, Plaintiff must demonstrate that "(1) [s]he engaged in

statutorily protected activity, (2) [s]he suffered an adverse

employment decision, and (3) the decision was causally related to

the protected activity." Martin v. Brevard Cty. Pub. Sch., 543

F.3d 1261, 1268 (11th Cir. 2008). A “close temporal proximity”

between the protected expression and an adverse action is

sufficient circumstantial evidence of a causal connection for

purposes of a prima facie case. Higdon v. Jackson, 393 F.3d 1211,

1220 (11th Cir. 2004).

In the absence of direct evidence of retaliatory intent, the

McDonnell Douglas1 burden-shifting framework applies. Hurlbert v.

St. Mary's Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir.

2006). First, the employee must make a prima facie case for a

retaliation claim. See Hurlbert, 439 F.3d at 1297. The burden then

shifts to the employer to articulate a nondiscriminatory reason

for the adverse action. Id. If the employer does so, the burden

shifts back to the employee to produce evidence that the employer's

reason is pretextual. Munoz, 981 F.3d at 1275; Hurlbert, 439 F.3d

at 1297. The employee shows that the employer's proffered reason

was pretextual by presenting evidence “sufficient to permit a

reasonable factfinder to conclude that the reasons given by the

employer were not the real reasons for the adverse employment

decision.” Martin v. Brevard County Pub. Sch., 543 F.3d 1261, 1268

(11th Cir. 2008); Brooks v. Cty. Comm'n of Jefferson Cty., Ala.,

446 F.3d 1160, 1163 (11th Cir. 2006).

IV.

A. Plaintiff’s FMLA Interference Claim

Count I of the Complaint alleges that Lee Memorial interfered

with plaintiff’s right to FMLA leave by terminating her employment

a day after she made a request to Ms. Collins for FMLA leave.

(Doc. #1, at ¶¶ 9, 13-15, 18-19, 24.) For summary judgment

1 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

purposes, the evidence establishes that plaintiff was entitled to

FMLA leave, her employment was terminated, and the termination

precluded her from obtaining FMLA leave, thus resulting in harm to

plaintiff which could be remedied by damages or equitable relief.

Defendant does not argue to the contrary.

Defendant argues, however, that the undisputed evidence

establishes a reason for the termination completely unrelated to

the request for FMLA leave. (Doc. #24, pp. 19-20.) The Court

agrees. The undisputed evidence shows that on January 22, 2019 -

one day before Plaintiff spoke with Ms. Collins about possibly

needing FMLA leave - Director Campbell made the decision to

terminate Plaintiff based upon video and two written statements

asserting that Plaintiff was sleeping during her January 16, 2019

work-shift. (Docs. ##28, ¶¶ 7-10; 28-1; 28-2; Doc. #44, p. 10, ¶¶

16-17.) This termination decision was wholly unrelated to the

FMLA leave, having been made prior to plaintiff’s suggestion of a

possible need for such leave or plaintiff’s attempt to log-in to

Aetna’s designated online portal. See Strickland, 239 F.3d at 1208.

Additionally, the undisputed evidence further establishes that Ms.

Collins did not speak with Director Campbell or any other employee

about Plaintiff’s purported health issues or a possible need for

FMLA leave prior to Director Campbell terminating plaintiff’s

employment on January 24, 2019. (Doc. #27-1, ¶¶ 9, 11.) Defendant

therefore has established that the undisputed facts show

Plaintiff’s termination was for a reason wholly other than her

anticipated need for or request for leave. See Strickland, 239

F.3d at 1208. See also Krutzig, 602 F.3d at 1236 (summary judgment

on an interference claim was proper because the decision maker not

aware of a request for FMLA leave at time of the decision to

terminate employment). Defendant’s Motion for Summary Judgment as

to Plaintiff’s interference claim in Count I is granted.

Plaintiff’s Response to Defendant’s Motion for Summary

Judgment asserts for the first time that there are other

interference claims embedded within Count I relating to (1) failing

to provide Plaintiff with certain information about her FMLA rights

and eligibility; and (2) discouraging Plaintiff from using the

FMLA leave. (Doc. #33, pp. 11-13.) The Complaint makes no mention

of or reference to such additional interference claims, which

allegedly date back to September 2017, prior to Plaintiff’s FMLA

eligibility that commenced in January 2018. See (Doc. #1; Doc.

#33, pp. 11-13; Doc. #25-1, p. 28.)

“Rule 8(a)’s liberal pleading standard is inapplicable once

discovery has commenced, . . ..” Hurlbert, 439 F.3d at 1297.

Despite the "liberal pleading standard for civil complaints,"

plaintiffs may not "raise new claims at the summary judgment

stage." Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314

(11th Cir. 2004). Thus, it is well settled that "[a] plaintiff

may not amend [her] complaint through argument in a brief opposing

summary judgment." Varazo v. Keiser Corp., 754 F. App'x 918, 919

(11th Cir. 2018) (quoting Gilmour, 382 F.3d at 1315) (citation

omitted). To permit a plaintiff to do otherwise would subject a

defendant to unfair surprise. See White, 789 F.3d at 1200 (holding

there was no basis for defendant to be on notice that plaintiff

was alleging an employer-notice cause of action where three-page

complaint contained no mention of the notice).

Plaintiff’s Complaint provides no notice of interference

claims based upon Defendant’s prior alleged withholding of

required notice under the FMLA or discouraging Plaintiff from using

FMLA leave due to reprimands and fear of retaliation. See (Doc.

#1, ¶¶ 7-31.) "Liberal pleading does not require that, at the

summary judgment stage, defendants must infer all possible claims

that could arise out of facts set forth in the complaint."

Gilmour, 382 F.3d at 1315. In light of the foregoing, this portion

of Plaintiff’s Response is an impermissible attempt to amend the

Complaint, and as such, provides no basis to deny summary judgment.

B. Plaintiff’s FMLA Retaliation

Plaintiff claims that her termination was in retaliation due

to notifying Ms. Collins on January 23, 2019, that she may possibly

need to take FMLA leave. (Doc. #1, ¶¶ 13-19; Doc. #33, p. 15.)

For reasons discussed below, the Court finds Plaintiff has not

established a prima facie case or that Defendant’s stated reason

for termination was pretextual.

(1) Plaintiff’s Prima Facie Case

It is undisputed that Plaintiff suffered an adverse

employment action because Lee Memorial terminated her employment

on January 24, 2019. Krutzig v. Pulte Home Corp., 602 F.3d 1231,

1234–35 (11th Cir. 2010) (recognizing termination as an adverse

employment action); Munoz 981 F.3d at 1276–77 (recognizing the

same).

For summary judgment purposes, Plaintiff also engaged in

statutorily protected conduct by giving “[n]otice of an intent to

use FMLA leave in the future,” when she communicated to Ms. Collins

on January 23, 2019, that she may require FMLA leave for personal

health reasons. Pereda v. Brookdale Senior Living Cmtys., Inc.,

666 F.3d 1269, 1274-75 (11th Cir. 2012).

Finally, Plaintiff must establish a causal connection between

her request for future FMLA leave and her termination. Martin, 543

F.3d at 1268. To establish a causal connection, “an employee must

demonstrate that the decision-makers were aware of the protected

conduct, and that the protected activity and the adverse action

were not wholly unrelated." Munoz, 981 F.3d at 1277 (11th Cir.

2020) (quoting McCann v. Tillman, 526 F.3d 1370, 1376 (11th Cir.

2008)) (discussing causation required for a Title VII retaliation

claim)(internal citations omitted). "Close temporal proximity

between protected conduct and an adverse employment action is

generally 'sufficient circumstantial evidence to create a genuine

issue of material fact of a causal connection.'" Hurlbert, 439

F.3d at 1298 (quoting Brungart, 231 F.3d at 799). Here, temporal

proximity between Plaintiff’s alleged protected activity on

January 23, 2019, when she informed Ms. Collins she may take FMLA

leave, and Plaintiff’s January 24, 2019 termination occurred just

one day apart, which is undoubtedly a sufficient causal connection.

See e.g., Benz v. Crowley Mar. Corp., 731 F. App'x 794, 801 (11th

Cir. 2018)(finding one day between an application for FMLA leave

and termination created an inference of causation); Brungart, 231

F.3d at 799 (finding one day to be sufficient to raise an inference

of causation).

Nevertheless, where "an employer contemplates an adverse

employment action before an employee engages in protected

activity, temporal proximity between the protected activity and

the subsequent adverse employment action does not suffice to show

causation." Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006)

(emphasis added)). See also, Krutzig, 602 F.3d at 1235-36 (citing

Brungart, 231 F.3d at 799))(“Temporal proximity alone, however, is

not sufficient to establish a causal connection when there is

unrebutted evidence that the decision maker was not aware of the

protected activity.”). The unrebutted evidence shows that on

January 22, 2019, Director Campbell made the decision to terminate

Plaintiff’s employment, which was one day prior to Plaintiff’s

alleged protected activity. (Doc. #28, ¶¶ 9-10; Doc. #28-3, pp. 8-

9; Doc. #44, p. 10, ¶ 16.) Furthermore, Plaintiff concedes that

Ms. Collins never informed Director Campbell of “Plaintiff’s FMLA

request prior to and/or during communications between herself and

Campbell or at Plaintiff’s termination meeting . . .,” which is

confirmed by Director Campbell’s declaration statements. (Doc.

#28, ¶¶ 14-17; Doc. #33, p. 17; Doc. #33-1, ¶ 38.) Plaintiff has

not established a causal link between her FMLA leave request and

her termination since Director Campbell not only made the decision

to terminate Plaintiff before she requested FMLA leave, but

Plaintiff also admits Campbell had no knowledge of her January 23,

2019 protected activity, at any time prior to her termination.

See, e.g., Drago, 453 F.3d at 1308; Krutzig, 602 F.3d at 1235.

Plaintiff argues, however, that under the “cat’s paw

theory,” causation is established in this case because Director

Campbell followed the biased, discriminatory recommendation of Ms.

Collins to terminate Plaintiff. (Doc. #33, pp. 16-17.) Under

this theory, causation may be established in a retaliation case if

“a plaintiff shows that the decisionmaker followed a biased

recommendation without independently investigating the complaint

against the employee, in such a case, the recommender is using the

decisionmaker as a mere conduit, or “cat’s paw” to give effect to

the recommender’s retaliatory animus.” Jones v. City of Heflin,

207 F.Supp.3d 1255 (N.D. Ala. 2016) (citing Sims v. MVM, Inc., 704

F.3d 1327, 1335 n. 6 (11th Cir. 2013)). See also, Staub v. Proctor

Hospital, 562 U.S. 411, 415 (2011)(discussing the cat’s paw

theory).

The record is devoid of any evidence showing that Director

Campbell followed the recommendation of Ms. Collins, biased or

otherwise. To the contrary, the undisputed evidence demonstrates

that upon receiving video and two written accounts that Plaintiff

was sleeping during her work-shift, Director Campbell alone made

the decision to discharge Plaintiff. (Doc. #28, ¶¶ 7-10; Doc. #44,

¶ 16.) Director Campbell stated in his declaration that while Ms.

Collins agreed with his decision to terminate Plaintiff, “[he] did

not need Ms. Collins’ approval of [his] decision, but try to keep

[his] supervisors in the loop on these type of decisions.” (Doc.

#28, ¶ 11.) Further, Plaintiff has not pointed to any record

evidence demonstrating that Director Campbell failed to make an

independent investigation concerning termination. See (Doc. #33.)

Rather, the evidence undisputedly shows that Director Campbell

considered video and written statements sent to him by the Director

of the Emergency Department and other employees, prior to making

any termination decision and without any input from Ms. Collins.

(Doc. #28, ¶¶ 7-10.) Accordingly, the Court is unpersuaded by

Plaintiff’s argument that causation is established under the

“cat’s paw theory.” Defendant’s Motion is therefore granted with

respect to Plaintiff’s FMLA retaliation claim, although the Court

will alternatively continue the analysis of her claim.

(2) Lee Memorial’s Articulated Reason for Termination

Lee Memorial states it terminated Plaintiff because she was

sleeping on-the-job, which violated its Corrective Action Policy

and called for immediate termination. (Doc. #28, ¶¶ 9-10; Doc.

#28-3, pp. 8-9; Doc. #44, p. 9, ¶ 7.) This stated reason satisfies

the burden “to articulate a legitimate reason for [its] adverse

action.” Hurlbert v. St. Mary's Health Care Sys., Inc., 439 F.3d

1286, 1297 (11th Cir. 2006).

(3) Plaintiff’s Showing of Pretext

Plaintiff has not produced any evidence that would allow a

factfinder to conclude Defendant's stated reason for discharging

her was pretextual. To show pretext, an employee must introduce

evidence “sufficient to permit a reasonable factfinder to conclude

that the reasons given by the employer were not the real reasons

for the adverse employment decision.” Jones v. Gulf Coast Health

Care of Del., LLC, 854 F.3d 1261, 1274 (11th Cir. 2017) (quotation

marks omitted). This evidence may include the evidence already

produced by the employee to establish her prima facie case. A

showing of pretext arises from “weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the

employer's proffered legitimate reasons for its action.” Munoz,

981 F.3d at 1277–79.

Plaintiff first alleges that evidence of pretext exists based

on Defendant’s “obvious displeasure with Plaintiff taking time

off[,] which should have been deemed FMLA-protected leave[,]

deterred Plaintiff from taking FMLA leave to which she was

entitled, and misleading Plaintiff and then denying Plaintiff’s

FMLA requests and refusal to provide FMLA documentation and/or

information upon notification of an FMLA-qualifying event . . ..”

(Doc. #33, pp. 17-18.) In support, Plaintiff points to Ms. Collins’

discontentment and acts to dissuade Plaintiff from using FMLA

leave, which Plaintiff argues, establishes a retaliatory “state of

mind.” (Id., p. 18.)

Upon careful review of the record, the Court finds there is

no evidence of Defendants’ displeasure with Plaintiff for what

should have been FMLA leave. While the record shows that on

September 27, 2017 and February 1, 2018, Plaintiff received written

warnings for excessive absenteeism, the absences occurred in 2017,

prior to Plaintiff’s eligibility for FMLA leave in January 2018.

(Doc. #33-1, ¶¶ 14-15; Doc. #33-3; Doc. #33-4.) Moreover, both

written warnings demonstrate Plaintiff was offered FMLA leave,

even if mistakenly so.2 (Doc. #33-3; Doc. #33-4.) As to any acts

2 On September 27, 2017, Plaintiff received a written warning

for excessive absenteeism, and it was noted that she was offered

FMLA leave. (Doc. #33-1, ¶ 14; Doc. #33-3.) Plaintiff later

testified, however, that her supervisor, Ms. Walsh, clarified that

leave would not be available until she became FMLA-eligible in

January 2018, but in doing so, Ms. Walsh directed Plaintiff to

look-up the Aetna website and complete the necessary paperwork as

soon as she qualified for leave. (Doc. #25-1, p. 28.) The record

by Ms. Collins that show “discontentment” or in effect dissuaded

Plaintiff form taking FMLA leave, Plaintiff has not provided

evidence of such acts. To the contrary, Plaintiff testified that

Ms. Collins directed Plaintiff to go to Aetna’s website and

complete FMLA-related paperwork (Doc. #25-1, p. 28), and when she

informed Ms. Collins that she planned on applying for FMLA leave

in February 2018, Ms. Collins replied “okay.” (Id., p. 29.)

Likewise, when Plaintiff informed Ms. Collins on January 23, 2019,

that she may need to take FMLA leave for personal health issues,

Ms. Collins replied “thank you for telling [me] and sorry to hear

that.” (Id., p. 36.) Thus, the Court is not convinced that

Plaintiff has produced any evidence from which a reasonable jury

could find Defendant’s stated reason for terminating Plaintiff is

pretextual.

Next, Plaintiff argues that she has established evidence of

pretext through a comparator. (Doc. #33, pp. 18-19.) "[A] plaintiff

must show that she and her comparators are similarly situated in

all material respects." Lewis v. City of Union City, 918 F.3d 1213,

1224 (11th Cir. 2019) (en banc) (quotation marks omitted). A

similarly situated comparator will have (1) “engaged in the same

basic conduct (or misconduct)”; (2) “been subject to the same

therefore establishes that in 2017, Employer informed Plaintiff

that she would be FMLA-eligible in the beginning of 2018.

employment policy, guideline, or rule”; (3) usually (but not

always) “been under the jurisdiction of the same supervisor”; and

(4) “share the plaintiff's employment or disciplinary history.”

Lewis, 918 F.3d at 1227-28 (footnote and citations omitted).

Plaintiff identifies only one comparator — Courtney, a night-shift

lead respiratory therapist, who Plaintiff allegedly witnessed

dozing off multiple times in the NICU, but “never longer than a

minute or two.” (Doc. #25-1, pp. 25-26.) Plaintiff, however,

testified that she never reported to any supervisor that Courtney

was sleeping during a work-shift, nor did Plaintiff know if anyone

else reported the alleged misconduct and whether Director Campbell

witnessed Courtney sleeping. (Id., p. 26.)

According to Director Campbell, he never observed Courtney

sleeping during a scheduled shift, and he had not received any

complaints that she had done so. (Doc. #28, ¶ 22.) “[P]roffered

comparators' actions are only relevant if it is shown that the

decision maker knew of the prior similar acts and did not

discipline the rule violators.” Summers v. City of Dothan, Ala.,

444 F. App’x 346, 348-50 (11th Cir. 2011). Knowledge of a prior

act cannot be imputed on a decision maker, because

"[d]iscrimination is about actual knowledge, and real intent, not

constructive knowledge and assumed intent." Silvera v. Orange

Cnty. Sch. Bd., 244 F.3d 1253, 1262 (11th Cir. 2001). Even if the

Court were to presume that Courtney was sleeping on-the-job, was

subject to same employment policies, and under the jurisdiction of

the same supervisors, Plaintiff has failed to provide any evidence

that Director Campbell, as the decision maker, knew of Courtney’s

alleged actions and did not discipline her. See Summers, 444 F.

App'x at 348. Additionally, Plaintiff has not presented any

evidence that Courtney shared Plaintiff's employment or

disciplinary history. Lewis, 918 F.3d at 1227-28. "[A] plaintiff

and her comparators must be sufficiently similar, in an objective

sense, that they 'cannot reasonably be distinguished.'" Id. at

1227 (quoting Young v. United Parcel Serv., Inc., 575 U.S. 206,

135 S. Ct. 1338, 1355, 191 L. Ed. 2d 279 (2015)). Viewing all facts

and reasonable inferences in the light most favorable to Plaintiff,

the Court finds the allegations of pretext are insufficient to

survive summary judgment.

Finally, Plaintiff argues that Defendant’s own deviation from

its well-established policies is evidence of pretext. (Doc. #33,

p. 21.) The Eleventh Circuit has recognized that "an employer's

deviation from its own standard procedures may serve as evidence

of pretext." Tsavaris v. Savannah Law Sch., Ltd. Liab. Co., No.

20-11150, 2021 U.S. App. LEXIS 5579, at *12 (11th Cir. Feb. 25,

2021) (quoting Hurlbert, 439 F.3d at 1299). Plaintiff contends

that in July 26, 2017, Defendant stated in a “1st Written Reminder”

that Plaintiff was “noted to be dozing off to sleep in a chair,”

yet Plaintiff was not terminated.3 (Doc. #33, p. 19; Doc. #33-2.)

In contrast, following her FMLA leave request, Plaintiff alleges

that Defendant implemented more severe punishment when it

terminated her for sleeping while at work. (Doc. #33, p. 19.)

Plaintiff attributes the disparate treatment to her FMLA requests.

(Id., p. 20.)

Director Campbell, however, explained that unlike the January

2019 incident, in 2017, only one employee witnessed Plaintiff

sleeping and Campbell had no other employee or evidence that could

verify what the employee reported. (Doc. #28, ¶ 20.) Campbell

therefore believed it was a “he said, she said” situation, and was

insufficient evidence to find Plaintiff had committed gross

misconduct and to trigger the immediate termination provision of

Defendant’s corrective action policy. (Id.) With respect to the

January 2019 incident, Campbell stated he had clear, indisputable

proof that Plaintiff was sleeping on-the-job when he received not

only video, but two separate reports from employees in the

Emergency Department who witnessed Plaintiff sleeping, that

warranted Plaintiff’s termination. (Id. at ¶ 21.)

Based on the foregoing, the Court finds Plaintiff has failed

to introduce evidence sufficient to create a genuine issue of fact

3 On July 26, 2017, Plaintiff received a “1st Written Reminder”

for “disruptive behavior and performance issues,” in addition to

being noted as dozing off to sleep. (Doc. #33-2.)

as to Defendant’s deviation from its own standard procedures.

While Plaintiff may disagree with Director Campbell’s

implementation of Defendant’s policies, more than an employee's

subjective disagreement is required to establish pretext. See

Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000)("A

plaintiff is not allowed to . . . substitute his business judgment

for that of the employer."); Combs v. Plantation Patterns, 106

F.3d 1519, 1543 (11th Cir. 1997) ("[A] plaintiff may not establish

that an employer's proffered reason is pretextual merely by

questioning the wisdom of the employer's reason."); Elrod v. Sears,

Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991) ("Federal

courts do not sit as a super-personnel department that reexamines

an entity's business decisions. . . . Rather, our inquiry is

limited to whether the employer gave an honest explanation of its

behavior." (quotation marks omitted)). In sum, Plaintiff has not

shown that any alleged deviation by Defendant from its policies

was pretextual in nature. Because Plaintiff has not proffered

sufficient evidence to create a genuine issue of material fact

regarding whether Defendant’s articulated reason for her

termination is pretextual, Defendant is entitled to summary

judgment on Plaintiff's claim. Mitchell v. Pilgrim's Pride Corp.,

817 F. App'x 701, 709 (11th Cir. 2020).

Accordingly, it is now

ORDERED:

1. Defendant’s Motion for Summary Judgment (Doc. #24) is

GRANTED. The Clerk of the Court shall enter judgment in favor of

defendant Lee Memorial Health System as to both counts of the

Complaint.

2. Defendant Lee Memorial’s Motion in Limine (Doc. #43) is

DENIED as moot.

DONE AND ORDERED at Fort Myers, Florida, this 3rd day of

March, 2021.

E. STEELE

SHYIOR UNITED STATES DISTRICT JUDGE

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