# Blackmon v. Lee Memorial Health System

> District Court, M.D. Florida · March 3, 2021

URL: https://www.frixlaw.com/law-library/cases/10107115

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 3, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10107115

## How later opinions describe it (automated extraction)

- recognizing termination as an adverse employment action
- discussing the cat’s paw theory

## Opinion text

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

Copies:
Parties of record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10107115. Public record. Not legal advice.