Roberson v. Iberia Comprehensive Community Health Center Inc

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE DIVISION

NICOLE ROBERSON CIVIL ACTION NO. 6:19-CV-00067

VERSUS JUDGE TERRY A. DOUGHTY

IBERIA COMPREHENSIVE MAG. JUDGE CAROL B. WHITEHURST

COMMUNITY HEALTH CENTER,

INC.

RULING

Plaintiff Nicole Roberson (“Roberson”) makes two claims in this action against her former

employer, Defendant Iberia Comprehensive Community Health Center, Inc. (“Iberia

Comprehensive”): (1) Iberia Comprehensive terminated her because of her actual disability, manic

bipolar disorder and schizophrenic psychosis, in violation of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12101, and the Louisiana Employment Discrimination Law (“LEDL”), LA.

REV. STAT. § 23:323; and, (2) Iberia Comprehensive interfered with and retaliated against her for

attempting to take a protected medical leave in violation of the Family and Medical Leave Act

(“FMLA”), 29 U.S.C. § 2601, et seq.

Pending here is Iberia Comprehensive’s Motion for Summary Judgment [Doc. No. 25]

seeking dismissal of Roberson’s claims. Roberson has filed an opposition [Doc. No. 27]. Iberia

Comprehensive has filed a reply to the opposition [Doc. No. 28].

For the following reasons, the Motion for Summary Judgment is GRANTED.

I. FACTS

Iberia Comprehensive is a non-profit, federally qualified health center providing a wide

range of healthcare services at facilities located in Acadiana. Roberson began working for Iberia

Comprehensive in July 1997, and, as of December 2017, she was working as Iberia

Comprehensive’s Health Information Manager. Roberson reported directly to Iberia

Comprehensive’s CEO, Roderick Campbell (“Campbell”), and was considered a part of senior

management. Prior to December 2017, when the events occurred that led to her separation, she

was a good, above-average worker. [Campbell Deposition, Doc. No. 25-4, pp. 20, 41, 43, 45, 55-

57.]

Throughout the course of her employment, Roberson received Iberia Comprehensive’s

Handbooks; as a manager, she was responsible for knowing and enforcing the Handbook

provisions. [Roberson Deposition, Doc. No. 25-3, pp. 39-40]. Iberia Comprehensive’s

Handbook contains policies prohibiting discrimination because of an employee’s disability;

outlining Iberia Comprehensive’s duties under the ADA; providing for FMLA leaves; explaining

the expected standards of employee conduct, including the expectation that employee act

professionally and with respect; and providing for termination of employment for violation of

policies. [Doc. No. 25-5].

A. Roberson’s Medical Issues and Leaves of Absence Before December 2017

Prior to December 2017, Roberson took several medical leaves of absences. In 2015,

Roberson took a two-month medical leave due to surgery. [Doc. No. 25-3, pp. 60-62]. In June

2016, Roberson took medical leave again, but the exact dates and whether it was one extended

leave or intermittent leave is unclear. [Id., pp. 65-67, 71, 77-79] Roberson testified it was during

this medical leave that she was first diagnosed with Manic Bipolar Disorder. [Id., pp. 48, 50].

During the summer of 2016, her husband involuntarily committed her to the hospital on two

separate occasions pursuant to PECs (Physician Emergency Certificates) which Roberson defines

as what is “issued when the physician feel [sic] that you're at danger to yourself or others.” [Id.,

55-56.]

During this leave, Iberia Comprehensive’s Human Resources Manager Tamekia

Livingston-Willis (“Livingston-Willis”) sent Roberson a letter offering her FMLA-protected leave

because, by that time, she had exhausted all of her accrued vacation and sick leave. Livingston-

Willis also sent Roberson the FMLA medical certification to be completed by Roberson’s treating

healthcare provider. [Id., pp 70,71]. Roberson did not complete or submit the FMLA paperwork;

instead, she returned to work, providing Iberia Comprehensive with a release dated September 19,

2016, from her general practitioner, Dr. LeBean. [Id., pp 70-76]. The release did not contain a

diagnosis; it appeared the release was related to a physical injury or illness that involved

Roberson’s inability to lift heavy objects. The release did not indicate Roberson was hospitalized

for her mental condition. [Doc. No. 25-9]

Roberson contends that, after receiving the FMLA paperwork, she spoke to Campbell, and

he advised her that if she wanted to keep her job, she would need to return to work. [Roberson

Declaration, Doc. No. 27-2, ¶ 21-22] As a result of Campbell’s comments, Roberson states she

did not complete the FMLA paperwork; instead, she returned to work without taking FMLA leave.

[Id.] Campbell denies telling her this. [Doc. No. 28-2, p.3].

B Events Occurring in December 2017 Leading to Roberson’s Separation

Roberson continued working at Iberia Comprehensive through December 2017. According

to Campbell, prior to December 2017, Roberson expressed to Campbell that she was interested in

resigning from Iberia Comprehensive and taking a consulting job in Texas. They agreed that, if

she had an opportunity in Texas and could not give Iberia Comprehensive two weeks’ notice, they

would work it out. [Doc. No. 25-4, pp. 147-148]. Roberson denies telling Campbell she was

interested in resigning. [Doc. No. 27-1, p. 10]. Iberia Comprehensive’s policy requests (but does

not require) two weeks’ notice and the CEO may accept a resignation effective immediately

without penalty to the employee. [Doc. No. 25-5].

As of mid-December 2017, Roberson described her work as stressful and demanding, in

part because she was assisting Campbell with an important grant application due on Wednesday,

December 13, 2017. [Doc. No. 25-3, pp. 79, 84-85]. Roberson does not recall whether she was

taking her medications to control her mental illness in December 2017, but she stated, “the manic,

the condition was coming up -- coming up on me because it's a lot of things in that time I don't

recall.” [Id., p. 80].

1. Thursday, December 14, 2017

Beginning on Thursday, December 14, 2017, Roberson had several interactions with

Director of Nursing Patrina Rogers (“Rogers”). Although Roberson has little or no memory of the

incidents [Id., pp. 102-103], Rogers made a contemporaneous report of the incidents. [Id., p. 102;

Doc. No. 25-11]

Roberson contacted Rogers and asked her for a ride to Iberia Comprehensive’s St.

Martinville location that morning; Rogers agreed. [Doc. No. 25-11]. Later that morning, Roberson

and Rogers left the St. Martinville location, presumably to travel to Iberia Comprehensive’s

Lafayette site; however, instead of driving to Iberia Comprehensive’s Lafayette site, Roberson

directed Rogers to drive Roberson to various locations around Lafayette, St. Martinville, and New

Iberia, including to her daughter’s school, to a Candlewood Suites hotel, and to her attorney’s

office. [Id.]

At her attorney’s office, Roberson’s husband appeared in the parking lot, and Rogers

became very frightened he would become violent (stating, “I was afraid he was going to shoot

me”). [Id.] Rogers felt as though she was in the middle of a domestic dispute between the

Robersons and she was “going to die” when Roberson’s husband approached her car. [Id.] Rogers

felt “something was just not right” about the situation and she “did not want to be involved” in it.

[Id.]

Aside from being fearful of the Robersons, Rogers also felt she was going to be “fired, that

[her] job was on the line” because she was missing work.[Id.] Roberson repeatedly assured Rogers

that Rogers’ direct supervisor, Dr. Ramsey, was aware of the situation and had approved of Rogers

being away from the office. [Id.] In fact, that was not the case and, instead, Dr. Ramsey and other

Iberia Comprehensive personnel began calling Rogers to determine her whereabouts; they were

worried because she was missing from work. [Id.] Campbell became aware of the situation and

felt that Roberson was violating policy by placing Rogers’ life at risk and by taking Rogers away

from work to drive her around town without authority or permission of Rogers’ supervisor.

[Campbell Deposition, Doc. No. 25-4, pp. 133-140]. After Roberson left, Rogers sat in her car

and talked to HR because “I was extremely upset at this point.” [Doc. No. 25-11]. Roberson called

her twice later that night, at about 8:30 p.m. and 10:30 p.m.; Rogers did not answer her phone.

[Id.]

Roberson has no recollection of the specifics of these events other than being in the car

with Rogers, and, she states her husband later told her the places she went. [Roberson Deposition,

Doc. No. 25-3, pp. 111-114].

2. Friday, December 15, 2017

The following morning, Rogers called Roberson to tell her she was bringing Roberson’s

laptop (which Roberson had left in her vehicle) to work. Roberson stated she was not coming to

work and that she had decided she would resign on December 31, 2017, to be a stay-at-home mom.

[Doc. No. 25-11]. Roberson began to speak about various co-workers at Iberia Comprehensive

“in an accusatory, expletive fashion.” [Id.] Although Roberson has no memory of what she said

and therefore cannot deny it, Roberson indicates that she would not have said those things. [Doc.

No. 25-3, p. 106; Doc. No. 27-1, p. 14].

Later that same day, beginning at 4:47 p.m., Roberson sent several text messages to

Campbell; Roberson has no memory of sending these text messages. [Id, p. 15]. Roberson’s first

text message to Campbell asked him to call her; Campbell responded by stating “in the woods

hunting this weekend. Take care.” [Doc. No. 25-12]

In her second text message, Roberson wrote:

. . . I want to talk to you about my resignation. Be safe I love you

and thanks for all your support. . . . Thanks to Human Resources she

violated Hippa but because she is beautiful no one knows all the dirt

and all the confidential information. I tried to tell you but warn you

but you could not see past her attractiveness. I am so disappointed

in you. I took you like my brother. You were my hero. I thought you

only so the best in me when everyone else around me saw the worst.

The proof was in the pudding but I believed in you. Because of who

you were when I first met you. You and Melissa betrayed me and

always cost me my life and Hailey’a (sic) life.

[Doc. No. 25-12] (emphasis added); see also [Doc. No. 25-3, pp 89-90, 93]. Iberia Comprehensive

states that this text message establishes Roberson was resigning her employment, which was not

unexpected because she had previously spoken to Campbell about resigning. In this text message

she also accused HR Manager Livingston-Willis of violating HIPAA; stated she was

“disappointed” in Campbell; and accused Campbell of “betray[ing]” her and almost costing her

life and her daughter’s life.

Campbell responded to this text message by stating:

Not sure what you are talking about and under the circumstances

you will need to contact me only during working hours and please

put your wishes in writing. I pray that whatever is weighing on you

is lifted and you have a great life. Please contact HR on Monday

evening or upon your return. Thank you.

[Doc. No. 25-12]. Iberia Comprehensive asserts that it was clear from Campbell’s response that

he did not want to receive any further texts from Roberson, and, he expected her to go through

Human Resources if she had any issues.

Roberson did not contact Human Resources as instructed. [Doc. No. 25-3, p. 158]. Instead,

she continued to text Campbell. In one text she referred to Campbell as a “hoe;” accused him of

“F***ing” various employees and “lusting” over the HR Manager; referred to the HR Manager as

a “dirty bitch” and herself as a “Brilliant Bitch with a saving grace;” accused Campbell of “sleeping

with” the Board President of Iberia Comprehensive, whom she also called a “side hoe;” and

referred to another former coworker as “the biggest slut.” She also stated, “Change your life and

ask for forgiveness because the end is near.” [Doc. No. 25-3, p. 94-97, Doc. No. 25-4, pp. 104-

109; Doc. No. 25-12].

Campbell testified the allegations of sexual relationships were untrue and that he found the

text “very hurtful” and “very disrespectful.” [Doc. No. 25-4, pp. 105-106, 108, 141, 150].

Roberson admits her language in this text message was in violation of Iberia Comprehensive’s

conduct policy and not professional behavior expected of a senior manager. [Doc. No. 25-3, pp.

95-97].

Again, Roberson does not recall the circumstances surrounding sending this or any other

text message during this time period and has no memory of sending these text messages. [Doc.

No. 25-3, pp. 81-84, 99]

After receiving this text message, Campbell blocked Roberson’s number because he

thought she was misusing the company’s equipment and violating policy, he did not want it to

continue, and he found the text messages “very hurtful” and “very disrespectful.” [Doc. No. 25-4,

pp. 141, 150] As the CEO, Campbell did not think that employees should send him text messages

of that nature just as he wouldn’t send that type of text message to employees. [Id. p. 151].

3. Saturday, December 16, 2017

Roberson attempted to send another text message to Campbell on Saturday, December 16,

2017, at 4:23 p.m., stating she would be taking medical leave starting the following day. [Roberson

Deposition, Doc. No. 25-3, p. 98, Doc. No. 25-12]. The text message does not show that it was

delivered to Campbell, and Roberson received no confirmation and does not know whether he

received it, although she states that since he received her texts the previous day, she “assumes” he

received this one. [Roberson Deposition, Doc. No. 25-3, p. 98.; Doc. No. 27, p. 23]. However, in

her Statement of Contested Material Facts Presenting a Genuine Issue, Roberson does not contest

Iberia Comprehensive’s contention that Campbell never received the text message because he had

already blocked Roberson’s number from his phone, and that the first time Campbell saw the text

was when it was produced by Roberson in this litigation. [Doc. No. 27-1, p. 19]. Roberson also

does not dispute that, even if Campbell had seen this text, he would not have approved her leave

because she had been terminated for her conduct. [Id.; Doc. No. 25-4, pp. 126-127]

Roberson also called Rogers on the evening of December 16, 2017, stating the purpose of

the call was to obtain Human Resources Manager Livingston-Willis’ telephone number. [Doc. No.

25-11]. During this call, Roberson was “screaming” and using “expletive[s],” stating Livingston-

Willis was the “reason her child wants to kill herself,” and making threats to physically “beat”

Livingston-Willis. [Id.] During this call, Roberson repeatedly threatened to kill herself,

articulating with detail her plan for her daughter after her death. [Id.] Roberson does not contest

this. [Doc. No. 27-1, p. 20].

4. Sunday, December 17, 2017

At some point on either Saturday, December 16, 2017, or Sunday, December 17, 2017,

while at the Candlewood Suites, Roberson reported there was an “active shooter” at the hotel.

[Roberson Deposition, Doc. No. 25-3, pp. 114, 118]. Thereafter, Roberson was transported to and

treated at Our Lady of Lourdes Emergency Room, where she was caustic to the physicians and

staff, i.e., screaming, cursing, and making physical threats of violence. [Id., pp. 115-116] Roberson

states she believes that that would have been her behavior, but she does not remember what

happened. [Id.; Doc. No. 27-1, p. 21]. Roberson was released from Our Lady of Lourdes that

night and returned home. [Roberson Deposition, Doc. No. 25-3, pp. 118-119].

5. Monday, December 18, 2017

Monday morning, Roberson called Iberia Comprehensive’s Pharmacy Director, Reginald

Boutte (“Boutte”), purportedly to warn him of an impending investigation. Roberson does not

recall this conversation. [Id., pp. 120-122]. During that call, Roberson told Boutte that Campbell

was having inappropriate sexual relationships with various employees and the Board President;

she referred to Campbell as a “hoe;” she used profanity concerning Campbell; she stated Campbell

would be terminated and she would become the new CEO; and, she encouraged Boutte to leave

the facility and to go work for another healthcare facility in Houston. [Doc. No. 25-14].1

Later that day, Roberson was transported to Lafayette General Hospital by ambulance and

was involuntarily committed and transferred to Vermilion Hospital. [Roberson Deposition, Doc.

1 Although this statement in not in admissible form, the Court may consider it if the statement could be reduced to

admissible evidence at trial or reduced to admissible form. Lee v. Offshore Logistical and Transport, LLC, 859 Fed.

3d 353 (5th Cir. 2017). Here, Boutte could be called as a witness at trial; additionally Roberson cannot contest the

statement.

No. 25-3, pp. 119, 121]

C. Roberson’s Resignation/Termination

Campbell understood and considered Roberson’s December 15th text messages as

indicating her intent to resign [Campbell Deposition, Doc. No. 25-4, pp. 35, 98, 120-122].

Campbell sent Roberson a letter dated December 19, 2017, accepting her resignation. [Doc. No.

25-15]. Roberson did not immediately receive the letter because, unbeknownst to Campbell, she

was hospitalized. [Doc. No. 25-4, p. 120]. Roberson responded by letter dated December 29, 2017,

which she describes as an attempt to “undo” her resignation and be placed on medical leave. [Doc.

No. 27-1, p. 23]. She stated in this letter that she had an “inpatient stay” from December 19 through

December 25, 2017, and that she intended to take medical leave from December 25, 2017, through

January 15, 2018, [Doc. No. 25-16; Doc. No. 27-1, p. 23].

Campbell sent a written response to the letter, indicating that he understood her text

message as a resignation, he allowed her to resign out of courtesy, but if she withdrew her

resignation, she would be involuntarily terminated for violation of company policy, including

making threats against coworkers, insubordination, abusive behavior, breaking the chain of

command, and using vulgar and obscene language. [Doc. No. 25-17; Campbell Deposition, Doc.

No. 25-4, pp. 124-125].

Roberson understood that she was being allowed to resign in lieu of termination due to her

long tenure at Iberia Comprehensive. [Roberson Deposition, Doc. No. 25-3, p. 136].

Both Roberson and Campbell brought the issue of Roberson’s termination to Iberia

Comprehensive’s Board of Directors, which, in turn, had the issue investigated. [Roberson

Deposition, Doc. No. 25-3, pp. 136-137; Campbell Deposition, Doc. No. 25-4, pp. 145-146].

Following the investigation, the Board of Directors decided not to reinstate Roberson. [Campbell

Deposition, Doc. No. 25-4, 146].

Roberson filed an EEOC charge, and this lawsuit followed.

Iberia Comprehensive contends it is entitled to judgment as a matter of law dismissing

Roberson’s disability discrimination claim because it is undisputed that Roberson’s unprofessional

and disruptive conduct, including threats made against Iberia Comprehensive’s Human Resources

Manager and the use of profanity directed to Campbell, violated Iberia Comprehensive’s policies

and was not the type of professional conduct befitting her position in senior management. Thus,

Iberia Comprehensive decided to accept Roberson’s resignation, or, alternatively, to terminate

Roberson. Iberia Comprehensive asserts its termination of Roberson was not discriminatory under

the ADA or the LEDL because, as Roberson readily admits, any employee demonstrating this type

of conduct would be similarly terminated.

Iberia Comprehensive further contends that Roberson did not request FMLA medical leave

in December 2017. However, even if she had requested protected medical leave, Iberia

Comprehensive states it would have taken the same action in terminating her based on her violation

of conduct rules. Iberia Comprehensive asserts Roberson’s termination was due to legitimate,

nondiscriminatory and nonretaliatory reasons, and was not motivated to deprive, interfere with, or

retaliate because of Roberson’s protected FMLA leave.

Roberson responds that Iberia Comprehensive violated the ADA by terminating Roberson,

when her behavior was caused by her mental disability. She further responds that Iberia

Comprehensive interfered with her FMLA rights in September 2016 and again in December 2017,

and then retaliated against her for seeking to exercise her FMLA rights, by terminating her

employment.

The motion is fully briefed, and the Court is prepared to rule.

II. LAW AND ANALYSIS

A. Standard of Review

Under Federal Rule of Civil Procedure 56(a), A[a] party may move for summary judgment,

identifying each claim or defense--or the part of each claim or defense--on which summary

judgment is sought. The court shall grant summary judgment 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.@

The moving party bears the initial burden of informing the court of the basis for its motion by

identifying portions of the record which highlight the absence of genuine issues of material fact.

Topalian v. Ehrmann, 954 F.2d 1125, 1132 (5th Cir. 1992); see also Fed. R. Civ. P. 56(c)(1) (AA

party asserting that a fact cannot be . . . disputed must support the assertion by . . . citing to

particular parts of materials in the record . . . ). A fact is Amaterial@ if proof of its existence or

nonexistence would affect the outcome of the lawsuit under applicable law in the case. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is Agenuine@ if

the evidence is such that a reasonable fact finder could render a verdict for the nonmoving party.

Id.

If the moving party can meet the initial burden, the burden then shifts to the nonmoving

party to establish the existence of a genuine issue of material fact for trial. Norman v. Apache

Corp., 19 F.3d 1017, 1023 (5th Cir. 1994). In evaluating the evidence tendered by the parties, the

Court must accept the evidence of the nonmovant as credible and draw all justifiable inferences in

its favor. Anderson, 477 U.S. at 255. However, “a party cannot defeat summary judgment with

conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.” Turner v.

Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (citing Anderson, 477 U.S. at

248.)

B. Disability Discrimination Claim

Roberson alleges her termination violates the ADA and the LEDL. “The ADA is a federal

anti-discrimination statute designed to remove barriers which prevent qualified individuals with

disabilities from enjoying the same employment opportunities that are available to persons without

disabilities.” Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 161 (5th Cir. 1996). Pursuant to

the ADA, “[n]o covered entity shall discriminate against a qualified individual with a disability

because of the disability of such individual 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).

Louisiana's version of the ADA, the LEDL, provides that an employer cannot “[d]ischarge

or otherwise discriminate against an otherwise qualified disabled person with respect to

compensation or the terms, conditions, or privileges of employment on the basis of a disability

when it is unrelated to the individual's ability to perform the duties of a particular job or position.”

LA. REV. STAT. § 23:323(B)(2). Both the ADA and LEDL employ similar language, and the

United States Court of Appeals for the Fifth Circuit has held that when interpreting Louisiana's

anti-discrimination laws, it looks to federal employment discrimination jurisprudence. Baker v.

FedEx Ground Package Sys., Inc., 278 Fed. Appx. 322, 328 (5th Cir. 2008).

In a termination action under the ADA, the employee may either present direct evidence

that she was discriminated against because of her disability, or, alternatively, proceed under the

burden-shifting analysis first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), a Title VII case. See Benson v. Tyson Foods, Inc., 2016 WL3617803 at*6 (E.D. Tex. July

6, 2016) (citing EEOC v. LHC Group, Inc., 773 F.3d 688, 694 (5th Cir. 2014); see also EEOC v.

Chevon Phillips Chem. Co., LP, 570 F.3d 606, 615 (5th Cir. 2009)).

Direct evidence “is evidence that if believed, proves the facts of discriminatory animus

without inference or presumption.” Rachid v. Jack in the Box, Inc., 376 F.3d 305, 310 n.6 (5th Cir.

2004).

Absent direct evidence of discrimination, a plaintiff must make a prima facie case of

discrimination by showing she (1) has a disability, was regarded as disabled, or has a record of a

disability; (2) was qualified for the job; and (3) was subjected to an adverse employment decision

on account of her disability. Cannon v. Jacobs Field Services North America, Inc., 813 F. 3d 586,

590 (5th Cir. 2016) (citing LHC Grp., 773 F.3d at 697). “If [s]he makes that showing, a

presumption of discrimination arises, and the employer must ‘articulate a legitimate non-

discriminatory reason for the adverse employment action.’” Id. at 590 (quoting Chevron Phillips,

570 F.3d at 615). “The burden then shifts to the plaintiff to produce evidence from which a jury

could conclude that the employer’s articulated reason is pretextual.” Id. (citing Chevron Phillips,

570 F3d. at 615.)

To establish her claim of disability discrimination, Roberson must prove her mental illness

was a “motivating factor” in her termination. See Maples v. University of Texas Medical Branch

at Galveston, 524 Fed. App’x. 93, 95 (5th Cir. 2013) (“Under the ADA, ‘discrimination need not

be the sole reason for the adverse employment decision, [but] must actually play a role in the

employer’s decision-making process and have a determinative influence on the outcome.’); see

also Soledad v. U.S. Dep't of Treasury, 304 F.3d 500, 503 (5th Cir. 2002) (quoting Ahrens v. Perot

Sys. Corp., 205 F.3d 831, 835 (5th Cir. 2000)).

1. Prima facie case

There is no direct evidence of disability discrimination in this case, so the McDonnell

Douglas burden-shifting analysis applies. Here, for the purposes of summary judgment, Iberia

Comprehensive does not dispute that Roberson had an actual disability, manic bipolar disorder

and schizophrenic psychosis, or that Iberia Comprehensive had knowledge of Roberson’s

disability. Likewise, Iberia Comprehensive does not dispute that Roberson was “qualified” for and

performing in the job of Health Information Manager at least until December 2017. Further, it is

undisputed that Roberson suffered an adverse employment action--she was terminated. The issue

then becomes whether the third prong has been satisfied, i.e, has Roberson established a prima

facie case by showing that she was subjected to an adverse employment decision on account of

her disability.

Iberia Comprehensive argues that the evidence demonstrates that Roberson resigned and/or

was terminated because of her threatening, profane, and unprofessional conduct. Roberson

responds that she did not resign, and, that her behavior, which admittedly violated company

policies, was caused by her disability.

The Court finds that, even viewing the evidence in the light most favorable to Roberson,

she has not met her burden of showing she was subjected to an adverse employment decision on

account of her disability. First, she has failed to raise a genuine issue of material fact for trial

that her termination was not the result of her resignation statements to Campbell. Roberson

disputes Campbell’s testimony that she told him that she was interested in resigning from Iberia

Comprehensive and taking a consulting job in Texas, and she claims she would not have told

Rogers she was resigning on December 31, 2017, to be a stay-at-home mom. However, she

nevertheless does not dispute that she sent the resignation text to Campbell, that he construed it

to be her resignation, and that he accepted her resignation. She implicitly acknowledges that she

did resign by stating that she sent a letter seeking to “undo” her resignation. [Doc. No. 27-1, p.

23].

Secondly, she has not shown that her termination did not come about because of her

threatening, profane, and unprofessional conduct. She does not dispute that she engaged in the

behavior outlined above; she merely asserts her behavior was caused by her disability. Although

her burden of proof in establishing a prima facie case is minimal, the Court finds that she has not

met that threshold. For these reasons, Iberia Comprehensive is entitled to summary judgment on

Roberson’s ADA and LEDL claims.

However, assuming arguendo that Roberson has established a prima facie case of

discrimination based on disability, the Court will next consider whether Iberia Comprehensive

has articulated “a legitimate non-discriminatory reason for the adverse employment action.”

2. Legitimate non-discriminatory reasons for termination

Iberia Comprehensive argues that it has clearly articulated its legitimate, non-

discriminatory reason for its decision to accept Roberson’s resignation, or, alternatively, to

terminate Roberson for her conduct. First, it is uncontested that Campbell, Roberson’s direct

supervisor and the decision maker in this case, considered Roberson’s text message as her intent

to resign her employment. However, even if she had not resigned, Iberia Comprehensive

submits it would have terminated Roberson because of her abusive and threatening language, her

inappropriate and offensive text messages, and her actions involving Rogers—all of which

violated Iberia Comprehensive’s conduct and discipline policies.

Iberia Comprehensive submits that even Roberson concedes that her conduct between

December 14 and 18, 2017 was unacceptable—she admits that her offensive and inappropriate

language in the text messages, threats made against Iberia Comprehensive’s Human Resources

Manager and her other behavior violated the policies and expectations of Iberia Comprehensive.

Iberia Comprehensive further asserts that Roberson’s attempts to excuse her conduct by

arguing that it was caused by her mental illness are of no avail because the ADA and the LEDL

do not protect abusive, offensive conduct from termination. Iberia Comprehensive argues that

courts presented with this issue have uniformly held that an employer does not violate the ADA

or otherwise discriminate against an employee by terminating an employee who violates the

employer’s conduct rules, even if the violation is caused by a mental disability.

As an example, Iberia Comprehensive points to the Fifth Circuit case of Hamilton v.

Southwestern Bell Telephone Co., 136 F.3d 1047 (5th Cir. 1998). In Hamilton, the Plaintiff-

employee was suffering from depression and Post Traumatic Stress Disorder (“PTSD”) when he

was fired after a heated, profanity-ridden encounter with a coworker. In granting summary

judgment in favor of the employer, the Court held that, assuming Plaintiff’s mental impairment

was a disability, he was not terminated because of the disability, but rather because he violated a

workplace policy, i.e., the “abusive harangue” to a coworker in which he yelled and called the co-

worker a “f---ing bitch!” Plaintiff argued the incident was caused by his PTSD, but the Fifth Circuit

rejected that argument, holding, “the ADA does not insulate emotional or violent outbursts blamed

on an impairment. An employee who is fired because of outbursts at work directed at fellow

employees has no ADA claim.” Id., at 1052. Further, the Court noted: “The cause of [Plaintiff’s]

discharge was not discrimination based on PTSD but was rather his failure to recognize the

acceptable limits of behavior in a workplace environment. The nature of the incident, shown by

the record, presents a clear case in which [Plaintiff] was fired for his misconduct in the workplace.

. . . Plaintiff cannot hide behind the ADA and avoid accountability for his actions.” Id. See also,

Seaman v. CSPH, Inc., 179 F.3d 297 (5th Cir. 1999) (affirming summary judgment on employee’s

ADA claim holding employee who was allegedly bipolar was terminated for insubordination to

his supervisor and stating Plaintiff “cannot use the ADA as an aegis and thus avoid accountability

for his own actions.”)

Iberia Comprehensive additionally argues that the District Courts within the Fifth Circuit

have likewise followed Hamilton’s holding. See Leal v. Sinclair Broadcasting Group, No. A-16-

CV-679, 2018 WL 6172526, at *9 (W.D. Tex. Nov. 26, 2018) (granting summary judgment on

ADA claim and finding Plaintiff was not a “qualified individual” because he made threatening

statements, even when Plaintiff claimed those statements were caused by his nervous breakdown);

Johnson v. Parkwood Behavioral Health System, No. 2:11CV212-SA-SAA, 2013 WL 1827585,

at *4 (N.D. Miss. April 30, 2013) (affirming summary judgment on an ADA claim brought by

bipolar employee holding, “The ADA does not prohibit adverse action due to a consequence of a

disability. . . The ADA does not insulate an employee from adverse action taken by an employer

because of misconduct in the workplace, even if his improper behavior is arguably attributable to

an impairment.”); Necaise v. Grand Casinos of Miss., Inc.—Biloxi, No1:04CV126, 2006 WL

3469604, at *2 (S.D. Miss. Nov. 30, 2006) (dismissing employee’s ADA claim on summary

judgment).

Further, Louisiana courts have adopted Hamilton in the context of claims under the LEDL.

See Lindsey v. Foti, 2011-0426, p. 8 (La. App. 1 Cir. 11/9/11); 81 So.3d 41, 46 (affirming summary

judgment and holding employee with PTSD who was terminated for using profanity and making

a threatening statement regarding a co-worker could not maintain a state law disability

discrimination claim). In Lindsay, the Court stated:

Although [Plaintiff] argues that his conduct was caused by his disability and

therefore the adverse employment action was taken because of his

disability, the LEDL does not provide protection for [Plaintiff’s]

unacceptable and threatening conduct. The first circuit has adopted the

position that our antidiscrimination law does not insulate an employee’s

emotional outbursts at work blamed on an impairment. . . . After a thorough

de novo review of the record, we conclude that the basis of [Plaintiff’s]

discharge was not discrimination based on his PTSD, but was rather his

inappropriate and hostile behavior in a workplace environment. . . .

Louisiana’s antidiscrimination law is not a job insurance policy, but rather

a legislative scheme for correcting illegitimate inequities faced by the

disabled. An employer must be permitted to terminate its employee on

account of egregious misconduct, irrespective of whether the employee is

disabled. The act cannot be interpreted to require an employer to accept

egregious behavior by a disabled employee when that same behavior,

exhibited by a nondisabled employee would require termination. Thus,

firing an employee for conduct caused by his disability is not the equivalent

of firing the employee for the disability.

Id.

Additionally, “[a] survey of federal case law supports [the] argument that a disabled person

can be lawfully terminated for disability related misconduct—so long as the employer’s

explanation is not a pretext for discrimination.” Walton v. Spherion Staffing, LLC, 152 F.Supp.3d

403 (E.D. Pa. 2015) (citing supporting cases from the First, Third, Fourth, Eighth, Ninth and Tenth

Circuits); see also, Darcangelo v. Verizon Md., Inc., 189 Fed. Appx. 217, 219 (4th Cir. 2006) (“ .

. . the ADA does not require [defendant’s] to subject its employees to [plaintiff’s] abusive behavior,

which, not surprisingly, created considerable anxiety within her work environment, even if that

behavior was related to her bipolar disorder.”); Valentine v. Standard & Poor’s, 50 F.Supp.2d

262, 289 (S.D.N.Y. 1999) (holding “whether [Plaintiff’s] misconduct was a manifestation of his

disability [bipolar disorder] is immaterial because the ADA does not immunize disabled employees

from discipline or discharge for incidents of misconduct in the workplace.”); Husowitz v. Runyon,

942 F.Supp. 822, 834 (E.D.N.Y. 1996) (judgment for employer based on evidence that Plaintiff,

diagnosed with bipolar affective disorder, was uncooperative, disruptive, and “engaged in

threatening conduct with his co-workers”).

Iberia Comprehensive argues that the EEOC also makes it clear that an employer may

discipline an employee who, because of a disability, violated a conduct rule. The EEOC has

included this in its guidance. See 2008 Enforcement Guidance, The Americans With Disabilities

Act: Applying Performance and Conduct Standards to Employees with Disabilities, at Example 9;

Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans

with Disabilities Act, 2002 WL 31994335, at * 25 (October 17, 2002); Enforcement Guidance on

the Americans with Disabilities Act and Psychiatric Disabilities, 1197 WL 34622315, at * 14, 16

(March 25, 1997).

Roberson responds that the central issue here is whether Iberia Comprehensive violated

the ADA and the LEDL by terminating Roberson, who admittedly violated company policies,

when the violation was caused by her mental disability. She contends that the cases cited by Iberia

Comprehensive predicate their holdings on violence (or threats of violence) directed at fellow

employees within a workplace. See, e.g., Hamilton, 136 F.3d at 1052 (employee used expletives

in a face-to-face encounter with a coworker); Darcangelo v. Verizon Maryland, Inc., 189 F. App’x

217, 218 (4th Cir. 2006) (employee engaged in “threatening, abusive, and harassing behavior

toward her co-workers and supervisors in the course of performing her duties”); Sullivan v. River

Valley Sch. Dist., 197 F.3d 804 (6th Cir. 1999), cert. denied, 530 U.S. 1262 (2000) (employee

threatened school board members at a meeting); Palmer v. Circuit Court of Cook Cty., Ill., 117

F.3d 351 (7th Cir. 1997), cert. denied, 522 U.S. 1096 (1998) (employee threatened coworker with

violence and threatened to kill supervisor).

Roberson argues that her text messages do not involve or mention violence, do not include

threats of violence, and were not directed at a fellow employee while at a workplace. According

to Roberson, the text messages were sent while both Roberson and Campbell were off, and the

messages were not a face-to-face conversation. Finally, she argues that no one other than Campbell

and Roberson had access to the messages, and the messages did not rise to the level of posing a

direct threat to the health or safety of others.

Considering all of these factors, Roberson asserts that her text messages do not fall within

the general rule that “[a]n employee who is fired because of outbursts at work directed at fellow

employees has no ADA claim.” Hamilton, 136 F.3d at 1052. Roberson state her messages were

not in all capital letters, which is commonly identified as yelling. Roberson further states she

simply sent messages to Campbell addressing her concerns of a HIPAA violation and her

disappointment in Campbell. While Roberson used profanity within her text messages, she did not

refer to Campbell in any way other than possibly being a “hoe.”

Roberson additionally argues that another difference between Hamilton is that Roberson

never physically touched anyone employed at Iberia Comprehensive. Further, a key distinction

between Roberson and the plaintiff in Leal v. Sinclair Broadcasting Group is that the plaintiff in

Leal wrote threatening messages on social media regarding his coworkers and managers. No. A-

16-CV-679,2018 WL 6172526, at *3 (W.D. Tex. Nov. 26, 2018) These messages included actual

threats and were made public; the messages were not limited to two Defendant-employees. The

court found Defendant’s reason for terminating Leal legitimate, as his threatening posts and attacks

on the station on social media violated Defendant’s policies. Id.at 8. As for Roberson, the text

message exchange between her and Campbell was confidential and was not shared publicly. Also,

Roberson’s text messages did not include actual threats.

Roberson further asserts that a distinction between Necaise v. Grand Casinos of Miss.,

Inc.—Biloxi, supra, and her case is the plaintiff was terminated for insubordination in the

workplace after being warned multiple times of wrongdoings. No 1:04CV126, 2006 WL 3469604,

at *3 (S.D. Miss. Nov. 30, 2006) This is distinct from Roberson, as she was never reprimanded for

any form of insubordination until Campbell found the December 15, 2017 texts to be a form of

insubordination, “very hurtful” and “very disrespectful.”

Roberson contends her text messages were not a violent outburst, did not take place at the

workplace, and were not a threat of violence. The text messages were exchanged between two

senior managers, one of whom simply thought the messages were “very hurtful” based on the

allegations made within the messages. These key differences, according to Roberson, show that

she was qualified for her position with Defendant after December 19, 2017.

Roberson concludes that the question is whether the facts, read in the light most favorable

to her, support the conclusion that she was fired because of her disability. She contends she did

not actually threaten anyone. She contends further, that even if this Court determines she made

actual threats in the text messages or that Roberson was a genuine threat to anyone at Iberia

Comprehensive, which Roberson contends she was not, then upon her potential return to work

date, the threat would have passed. She contends she pursued treatment to control her mental illness

immediately after the text messages were sent. She states that Campbell’s reliance on Roberson’s

text messages as a reason for termination is at least partially motivated by his concerns of

Roberson’s disability. Having dealt with and experienced Roberson’s disability in 2015 and 2016,

Campbell was aware that once Roberson sought help in December of 2017 for her disability, she

would be able to return to work and termination was not necessary.

The Court finds that Iberia Comprehensive has articulated legitimate, non-discriminatory

reasons for Roberson’s termination. First of all, Iberia Comprehensive was justified in believing

Roberson had submitted her resignation. She admittedly sent a text message clearly stating her

intent to resign.

However, assuming arguendo, that Iberia Comprehensive was not justified in believing

Roberson had resigned, the Court additionally finds that, contrary to Roberson’s arguments, her

actions constitute the type of unacceptable and threatening conduct which may serve as legitimate,

non-discriminatory reasons for termination, as long as they are not pretextual.

Although all of Roberson’s interactions with Rogers are disturbing, the telephone call on

December 16, 2017, can certainly be deemed as unacceptable and as threatening violence toward

fellow employees. Roberson was “screaming” and using “expletive[s]” stating Human Resources

Manager Livingston-Willis was the “reason her child wants to kill herself,” and making threats to

physically hurt Livingston-Willis. [Doc. No. 25-11]. Roberson stated she wanted to “beat”

Livingston-Willis. During this call, Roberson repeatedly threatened to kill herself, articulating with

detail her plan for her daughter after her death.

Roberson’s string of emails to Campbell at his hunting camp were also profane and

threatening, particularly the email sent Friday, December 15, 2015, in which she referred to

Campbell as a “hoe;” accused him of “F***ing” various employees and “lusting” over the HR

Manager; referred to the HR Manager as a “dirty bitch” and herself as a “Brilliant Bitch with a

saving grace;” accused Campbell of “sleeping with” the Board President of Iberia Comprehensive,

whom she also called a “side hoe;” and referred to another former coworker as “the biggest slut.

In that email, Roberson also threatened Campbell: “Change your life and ask for forgiveness

because the end is near.”

While at the Candlewood Suites, Roberson reported the existence of an “active shooter”

when no such person existed. Thereafter, Roberson was transported to and treated at Our Lady of

Lourdes Emergency Room, where she was caustic to the physicians and staff, i.e., screaming,

cursing, and making physical threats of violence.

Therefore, contrary to Roberson’s representations, she did threaten violence, and her

threats were made against fellow employees, both in and out of the workplace.

The Court concludes that Iberia Comprehensive has articulated legitimate, non-

discriminatory reasons for Roberson’s termination. The Court will next determinate whether

Roberson has carried her burden of proving pretext.

3. Pretext

In order to create a genuine issue of fact on the issue of pretext, Roberson must either

produce evidence establishing Iberia Comprehensive’s stated reasons for its actions are unworthy

of credence or false, or, evidence of disparate treatment. Roberson has not argued or introduced

any evidence of disparate treatment; however, she argues that Iberia Comprehensive’s articulated

legitimate, nondiscriminatory reasons were false.

Roberson attempts to establish pretext by stating, “Upon information and belief,

Defendant’s reasons for discharge are known to be false.” [Doc. No. 27, p. 19] However, her

argument, based on “information and belief,” falls short of the requirement that Roberson produce

actual evidence that Iberia Comprehensive’s reasons for its decisions were false. Instead of

producing such evidence, Roberson merely argues her conduct was not so egregious to warrant

termination.

Roberson argues that there is no pre-discharge evidence to support the stated reason for

discharge. She apparently is arguing that she had never been reprimanded for violating company

policies prior to December 2017. However, the events of December 2017 which occurred prior to

her termination are ample “pre-discharge” evidence.

Roberson further argues that most of her actions occurred on a weekend and therefore

Campbell should have ignored them, as he had done previously. She additionally argues that the

idea that she was insubordinate is “nonsensical,” because there is no evidence that she disobeyed

any directives on a weekend when she was not working. This argument ignores the fact that

Campbell directed her to call HR on Monday, and, when she ignored this directive, he eventually

had to block her string of abusive texts. Even though this occurred on a weekend, it nevertheless

demonstrated insubordination.

Roberson further argues that reliance on Rogers’s account is “illogical” because Rogers

returned her lap top the next day, which shows she was actually not afraid for her life, and,

additionally, some of Rogers’ statements are disputed by Roberson’s husband. However, a

reading of Rogers’ statement in full supports the conclusion that she had ample reason to fear for

her life. Roberson has offered no reason why Rogers would lie about her conduct.

Roberson does not fare any better under the mixed motive theory, that is, by arguing

Defendant's legitimate, non-discriminatory reason, while true, is only one of the reasons for its

decision, and another “motivating factor” was her disability. Aside from her subjective belief that

she should not have been terminated, which is insufficient to establish discrimination, see Hervey

v. Miss. Dept. of Educ., 404 Fed. Appx. 865, 870 (5th Cir. 2010) (“[S]ubjective beliefs of

discrimination cannot be the basis for judicial relief.”), Roberson has not introduced any evidence

that her disability was a factor, much less a “motivating factor” in the decisions made by Iberia

Comprehensive.

The only argument Roberson seemingly makes to this point is that Campbell knew of her

disability for at least two years before her resignation/termination. However, that fact alone, even

if true, does not establish that it was a “motivating factor” to his decision to terminate her.

Roberson has not submitted any evidence to suggest that Campbell had a discriminatory motive.

For instance, Roberson does not allege any facts that would suggest that Campbell made any

disparaging comments about Roberson’s mental disability. Quite the opposite, a fair reading of

Roberson’s declaration and the declaration of her husband, Robert Roberson, demonstrate that

Campbell was accommodating and helpful to Roberson. For instance, Campbell offered to write

and wrote a referral for Roberson to see a psychiatric nurse practitioner, Lecy Broussard. [Doc.

No. 27-1, p. 9, ¶ 27; Doc. No. 27-2, p. 2, ¶ 16; Doc. No. 27-3, p. 2, ¶¶ 18-19.]

Further, Robert Roberson attested Campbell stated Roberson could take “as much time as

needed despite the fact that she no longer had any sick leave time available” [Doc. No. 27-3, p. 1,

¶ 5]; agreed to reduce Roberson’s workload [Doc. No. 27-3, p. 2, ¶ 18]; referred to Roberson as a

“professional woman” and agreed to assist Roberson with medical leave [Rec. Doc. 27-3, p. 3, ¶¶

20-21.]

There is nothing to suggest Campbell was motivated by animus based on Roberson’s

disability. The mere fact that he could not continue to tolerate or condone her conduct does not

establish that Roberson’s disability was a “motivating factor.”

The Court finds that Roberson has not carried her burden of proving pretext. Even taking

all facts in the light most favorable to Roberson, her ADA claim must fail because the

overwhelming evidence indicates she was separated from Iberia Comprehensive due to her

resignation and/or her conduct and violation of conduct policies. Further, Roberson has no

evidence that Iberia Comprehensive’s stated reason for her separation was not legitimate; indeed,

Roberson admits that she knows of no other employee who engaged in similar conduct who was

not or would not be likewise terminated. [Doc. No. 27-1 ¶ 74]. Roberson cannot point to any non-

disabled employee who was similarly situated, meaning they engaged in similar conduct, that was

not terminated. Simply put, Roberson was not treated differently or adversely because of her

disability; she was separated because her conduct was intolerable.

For these reasons, Iberia Comprehensive is entitled to summary judgment on Roberson’s

ADA and LEDL claims. The Court will next address Roberson’s FMLA interference and

retaliation claims.

C. FMLA Claims

1. Interference

The FMLA makes it unlawful for an employer to interfere with, restrain, or deny the

exercise, or attempt to exercise, of any right provided by the FMLA. 29 U.S.C. § 2615(a)(1).

To establish a prima facie interference case, Roberson must show all of the following

elements: (1) she was an eligible employee, (2) her employer was subject to the FMLA's

requirements, (3) she was entitled to leave, (4) she gave proper notice of her intention to take

FMLA leave, (5) her employer interfered with, restrained, or denied her the benefits to which she

was entitled under the FMLA, and (6) she was prejudiced thereby. Jiles v. Wright Med. Tech.,

Inc., 313 F.Supp.3d 822, 844 (S.D. Tex. 2018); Caldwell v. KHOU-TV, 850 F.3d 237, 245 (5th

Cir. 2017); See Lanier v. Univ. of Texas Sw. Med. Ctr., 527 F. App'x 312, 316 (5th Cir. 2013);

see also Cuellar v. Keppel Amfels, L.L.C., 731 F. 3d 342, 347 (5th Cir. 2013).

The employee must point to evidence of prejudice. Jones v. Children’s Hosp., 58

F.Supp.3d 656, 668-69 (E.D. La. 2014). Prejudice exists when an employee loses compensation

or benefits by reason of the violation or suffers some loss in employment status. Id.at 669. An

interference claim does not require a showing of discriminatory intent. Id.at 668.

Requesting or being on FMLA “does not insulate Plaintiff from being lawfully

terminated . . . .” Terry v. Promise Hosp. of Ascension, Inc., No. 13-128-SDD-RLB, 2014 WL

4161581, at * 10-11 (M.D. La. Aug. 19, 2014). Indeed, there is an “important caveat” that “an

employee who requests or takes protected leave under the FMLA is not entitled to any greater

rights or benefits that he would be entitled to had he not requested or taken leave.” Id. quoting

Maldonado v. Frio County, Tex., No. A.SA-02-CA1046XR, 2004 WL 1304951, at * 4 (W.D.

Tex. June 1, 2004). “Therefore, an employer is entitled to dismiss an employee for any lawful

reason at any time, whether before, during or after an employee requests or takes leave pursuant

to the FMLA, as long as the employer does not discriminate or retaliate against the employee for

requesting or taking such leave.” Id. “To limit an employer’s ability to terminate an employee

for performance issues simply because the employee requested medical leave would vest the

employee with greater rights and benefits than she would have enjoyed had she continued

working without requesting such leave.” Id. (Emphasis in original.) Thus, simply because an

employee requests medical leave, the employee is not entitled to be retained despite poor

performance or violation of the employer’s policies. Id

An employer may defeat a FMLA interference claim by proving that the right to FMLA

leave was extinguished before the employer requested the leave. Ralser v. Winn Dixie Stores,

Inc., No. 13-2799, 2015 WL 5321743 at * 9 (E.D. La. Sept. 11, 2015), citing Shirley v. Precision

Castparts Corp., 726 F.3d 675, 682 (5th Cir. 2013). In Ralser, the court held the employer

presented sufficient evidence to show that the Plaintiff’s right to FMLA was “no longer viable”

because the employer made the decision to terminate him unrelated to his FMLA leave. Ralser,

2015 WL 5321743, at * 10. Likewise, for the same reason, the Ralser court found the Defendant-

employer was entitled to summary judgment on its mixed-motives defense, that is, it proved that

it intended to terminate Plaintiff regardless of his request for FMLA leave. Ralser, 2015 WL

5321743, at * 9.

Iberia Comprehensive argues that it is entitled to judgment as a matter of law dismissing

Roberson’s alleged December 2017 FMLA interference claim because the evidence clearly

establishes that Roberson failed to give proper notice of her intention to take FMLA leave before

she was terminated. Additionally, even if she had given proper notice, Iberia Comprehensive

separated her not because she requested or would be entitled to a FMLA leave, but rather,

because she expressed the intent to resign, and, even if she had not, her conduct violated Iberia

Comprehensive’s conduct and discipline policies.

However, Roberson responds in her opposition that she, in fact, made two requests for

FMLA leave. First, in September of 2016, upon her return to work after being discharged from a

mental institution, Roberson asserts that she spoke to Campbell concerning her desire to take

FMLA leave, and that Campbell told her that if she took FMLA leave, she would be terminated

because the facility could not function without someone in her position.

Roberson asserts she requested leave a second time on December 16, 2017 when she sent

the text message to Campbell stating she “will be on medical leave effective tomorrow.”

The Court will address each alleged interference claim in order.

a. September 2016 interference claim

As indicated above, Roberson contends in her opposition that Campbell interfered with

her FMLA rights in September 2016 when he allegedly discouraged her from taking FMLA

leave, by telling her that, if she took FMLA leave, she would be terminated because the facility

could not function without someone in her position.

Iberia Comprehensive replies that Roberson’s FMLA claims are restricted to her inability

to take FMLA protected leave in December 2017, as indicated by her amended Complaint [Doc.

No. 7, ¶¶ 56-69]. Iberia Comprehensive asserts that, despite her arguments in her opposition,

Roberson has not alleged and is not making a claim in this lawsuit that she was denied FMLA

leave at any time before December 2017, and, in fact, the undisputed facts demonstrate that she

took numerous leaves in 2015 and 2016, and, was restored to her job after each leave. [Doc. No.

27-1, pp. 4-5, ¶¶ 11-14; p. 25, ¶ 76].

Iberia Comprehensive additionally contends that Roberson’s attempts to create an issue

of fact fail because Roberson had already been released to return to work by her primary care

physician [Doc. 27-2, p. 2, ¶¶ 14, 17, 18.25], and she returned to work at the same salary. [Rec.

Doc. 25-3, pp. 32, 38-39.]

The Court does not construe Roberson’s amended Complaint as making an independent

FMLA claim for the September 2016 interference when Campbell allegedly discouraged her

from taking FMLA leave. Roberson’s amended Complaint in its “Facts” section states:

22.

In September of 2016, Plaintiff returned to work after being

discharged from a mental institution.

23.

Upon her return, Plaintiff spoke with the human resources

department (“HR”), as well as Mr. Campbell, concerning her desire

to take leave under the Family Medical Leave Act (“FMLA”)

because of her disability.

24.

However, Plaintiff was informed by Mr. Campbell that if she

took FMLA leave, she would be terminated because ICCH could not

function without someone in her position.

Roberson’s amended Complaint in its FMLA section states:

FAMILY MEDICAL LEAVE ACT (“FMLA”)

56.

All foregoing allegations are incorporated herein by

reference.

57.

Defendant is an “employer,” and Plaintiff is a qualified

“employee” for purposes of FMLA, 29 U.S.C. § 2601, et seq.

58.

Plaintiff was employed by Defendant for over twelve (12)

months, having worked at least 1,250 hours in the twelve (12)

months before taking leave.

59.

Defendant employs at least fifty (50) employees within 75

miles of Plaintiff’s worksite.

60.

Defendant violated the FMLA’s retaliation clause when

Plaintiff attempted to take medical leave and Defendant refused to

allow her to submit a medical leave authorization in violation of the

FMLA.

61.

After Plaintiff’s hospitalization in 2017, Plaintiff attempted

to take medical leave, as evidenced by her text message sent on

December 16, 2017; however, she was not advised on her FMLA

leave options, rather she was discharged from her employer.

62.

Upon information and belief, Defendant’s reasons for

discharge are known to be false. Defendant is aware that Plaintiff

did not resign, as Plaintiff’s text message merely stated she wished

to talk about possible resignation.

63.

Defendant also violated the FMLA’s interference clause

when Defendant interfered with and denied Plaintiff’s exercise of

her rights under the FMLA.

64.

Plaintiff was entitled to leave under the FMLA based on her

serious health condition that made her unable to perform her job

with Defendant at that time.

65.

Plaintiff gave proper notice of her intention to take FMLA

leave when she sent a text message to Mr. Campbell in December of

2017.

66.

Mr. Campbell was also made aware of Plaintiff’s initial

medical diagnosis in 2016, as well as through his communication

with Plaintiff’s family.

67.

Defendant willfully interfered with and denied Plaintiff’s

benefits to which she is entitled under the FMLA by terminating

Plaintiff’s employment despite her request for medical leave.

68.

Plaintiff has been prejudiced by Defendant’s actions of

terminating Plaintiff’s employment because Plaintiff’s income has

dramatically decreased since seeking new employment after her

termination.

69.

Plaintiff is entitled to damages from Defendants under the

FMLA, including:

a. back pay, including wages and salary, overtime, and

benefits;

b. front pay;

c. economic and other compensatory damages;

d. liquidated damages;

e. pre-judgment interest;

f. costs; and

g. attorney’s fees

[Doc. No. 7]

At most, it is arguable that ¶ 60 could possibly be construed as background for her

December 2017 claim or as making a claim that Iberia Comprehensive retaliated against her by

terminating her in December 2017 because she asked for FMLA leave in September 2016, and

the Court will address that contention below in the retaliation section of the Ruling. However,

Roberson’s amended Complaint cannot be construed as making an independent claim for Iberia

Comprehensive’s alleged interference with her FMLA rights in September 2016.

Nevertheless, even assuming arguendo that her amended Complaint could be construed

as making an independent claim for interference arising from the alleged September 2016

incident, the Court finds that Roberson has not established a prima facie case because she has not

shown how she was prejudiced. Her complaint only alleges that she was prejudiced by any

FMLA violations by the termination of her employment in December 2017 [¶ 68]. She had

already been released by her doctor, and she did not suffer a demotion or a decrease in pay.

Prejudice exists when an employee loses compensation or benefits by reason of the violation or

suffers some loss in employment status. Jones, 58 F. Supp 3d. at 669

Therefore, any independent FMLA claim Roberson may be making for the alleged

September 2016 interference of her FMLA rights has no merit. The Court will next address her

December 2017 interference claim.

b. December 2017 interference claim

Roberson contends that she had a viable right to FMLA leave when she sent a text

message to Campbell on Saturday, December 16, 2017, stating she “will be on medical leave

effective tomorrow.” She states that, despite the text message, Campbell terminated her, thereby

interfering with her FMLA rights.

Iberia Comprehensive responds first that Roberson cannot establish a prima facie case of

interference because she did not appropriately request FMLA leave prior to her separation.

Roberson does not dispute that Campbell failed to receive her text requesting leave because he

had blocked her after her string of abusive texts; therefore, she was terminated before Campbell

knew of any such request.

Secondly, Iberia Comprehensive contends that, even assuming Roberson can establish a

prima facie case under the FMLA and, further, assuming Roberson appropriately requested

FMLA leave prior to her separation, the evidence nevertheless clearly establishes Iberia

Comprehensive separated her not because she requested or would be entitled to a FMLA leave,

but rather, because her conduct violated Iberia Comprehensive’s conduct and discipline policies.

In other words, even if she had requested and received FMLA protected leave, she would have

still been terminated, and her FMLA leave would not insulate her from that adverse action. Once

Iberia Comprehensive made the decision to terminate Roberson because of her conduct, her

FMLA rights were extinguished. Thus, according to Iberia Comprehensive, Roberson cannot

maintain a FMLA interference claim against it because Iberia Comprehensive had a legitimate,

nondiscriminatory reason unassociated with the FMLA to terminate her.

The Court finds that Roberson has failed to establish a prima facie case of interference

because she cannot establish that she gave proper notice of her intention to take FMLA leave.

She admits she has no proof that her text was delivered, and she does not dispute that Campbell

had blocked her abusive texts and did not know about the text until it was shown to him during

this litigation. Her statement in argument that she assumes Campbell received the text because

he received the texts which she sent the day before, which was prior to his blocking her, is not

summary judgment evidence sufficient to establish a genuine issue of material fact.

Additionally, the Court finds that, even if Roberson could establish a prima facie case of

interference with regard to the December 2017 incident, Iberia Comprehensive has established

that it had a legitimate, non-discriminatory reason to terminate her. Iberia Comprehensive

terminated her not because she requested or would be entitled to a FMLA leave, but rather,

because her conduct violated Iberia Comprehensive’s conduct and discipline policies.

Roberson has failed to carry her burden of showing pretext. Accordingly, Iberia

Comprehensive is entitled to summary judgment on Roberson’s FMLA interference claims.

2. Retaliation

The FMLA also “prohibits an employer from discriminating or retaliating against an

employee . . . for having exercised or attempted to exercise FMLA rights.” 29 C.F.R.

§825.220(c). An employer is further prohibited from discharging or in any other way

discriminating against any person . . . for opposing or complaining about any unlawful practice

under the [FMLA].” 29 C.F.R. §825.220(a)(2).

An FMLA retaliation claim requires the employee to set out a prima facie case of

retaliation that: (1) she engaged in protected activity; (2) the employer took a materially adverse

action against her; and (3) a causal link exists between her protected activity and the adverse

action. Rideau, 381 F.Supp.3d at 709, citing Wheat v. Florida Parish Juvenile Justice Comm'n,

811 F.3d 702, 705 (5th Cir. 2016). If this showing is made, the burden then shifts to the employer

to proffer a legitimate, non-retaliatory reason for the employment decision; once made, to

succeed, the employee must then rebut the employer’s reason by showing either the reason is

pretext for discrimination or the employer has a retaliatory motive in addition to a legitimate

reason, or mixed motives. Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 333 (5th Cir.

2005). If the employee establishes mixed motives, an employer still may prevail by showing it

would have conducted the same employment action regardless of the discriminatory motivation.

Id.

Iberia Comprehensive contends that Roberson’s FMLA retaliation claim fails for the

same reason as her FMLA interference claim and her ADA claim. Even assuming Roberson can

establish a prima facie case under the FMLA and, further, assuming Roberson appropriately

requested FMLA leave prior to her separation, the evidence clearly establishes Iberia

Comprehensive separated her not because she requested or would be entitled to a FMLA leave,

but rather, because Campbell believed she had resigned and that, even if she had not, her conduct

violated Iberia Comprehensive’s conduct and discipline policies. In other words, even if she had

requested and received FMLA protected leave, she would have still been terminated, and her

FMLA leave would not insulate her from that adverse action.

To establish pretext, Roberson responds that Campbell discouraged her from taking

FMLA leave in September 2016, and that only one business day passed between Roberson’s

request for medical leave on December 16, 2017, and her termination on December 19, 2017.

She argues that this shows temporal proximity. However, once again, her argument that

Campbell received the text wherein she stated her intention to take medical leave is not

supported by any evidence, other than her assumption that he received it, even though she admits

he had blocked her due to her prior abusive texts.

The Fifth Circuit finds temporal proximity relevant at the pretext stage but “temporal

proximity alone cannot create a fact issue of pretext for purposes of summary judgment.” Ralser,

2015 WL 5321743, at *7. Inconsistencies in an employer’s documentation and a suggestion of

gross negligence or dishonesty can support a finding of pretext. Id.at *7. Ultimately, “the

combination of suspicious timing with other significant evidence of pretext, can be sufficient to

survive summary judgment.” Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398. 409 (5th

Cir.1999). The Fifth Circuit will reverse summary judgement if a reasonable jury could conclude

that the employer fired the plaintiff in retaliation for her protected activity. Id. at 410.

Here, Roberson has offered no inconsistencies in her employer’s documentation, no

suggestion of gross negligence or dishonesty, and no other significant evidence of pretext. Her

allegation that Campbell discouraged her from taking FMLA leave in September 2016, has no

temporal proximity to her termination in December 2017. Further, whether she was dissuaded

from taking additional leave in 2016 does not relate to whether she was entitled to take leave in

December 2017.

As the undisputed facts demonstrate, Campbell did not receive Roberson’s request for

FMLA before he made the decision to terminate her, he did not know she was hospitalized at the

time he accepted her resignation [Doc. No. 27-1, p. 22], and, Roberson would not have been

entitled to FMLA leave in December 2017 because the decision had already been made to either

accept her resignation per her text, or, alternatively, terminate her based on her inappropriate

conduct that violated Iberia Comprehensive’s policy.

Accordingly, she has not carried her burden of establishing pretext, and Iberia

Comprehensive is entitled to summary judgment on Roberson’s FMLA retaliation claim as well.

Wl. CONCLUSION

For the reasons set forth above, Iberia Comprehensive’s Motion for Summary Judgment

[Doc. No. 25] is GRANTED. Roberson’s claims are DISMISSED WITH PREJUDICE in their

entirety.

MONROE, LOUISIANA, this 21* day of April, 2020.

Laat

UNITED STATES DISTRICT JUDGE

37