Petition for Writ of Certiorari — Dutton v. United Health Care System, L. L. C.

6

I. REVIEW IS WARRANTED TO RESOLVE

WHETHER FED. R. CIV. P. 56(e) REQUIRES

THE NAME OF AN AFFIANT BE INCLUDED AS

A WITNESS ON A WITNESS AND EXHIBIT

LIST IN ORDER FOR THE AFFIDAVIT TO BE

CONSIDERED AS EVIDENCE IN SUMMARY

JUDGMENT PROCEEDINGS.

Without considering the affidavit of Rose Klein, the

Fifth Circuit agreed that although Dutton produced

sufficient evidence for a jury to disbelieve Tulane’s reasons

for her termination, she did not produce sufficient evi-

dence to convince a jury that discrimination was the

intent. The United States District Court for the Eastern

District of Louisiana struck the affidavit of Rose Klein

because the amended witness and exhibit list, containing

her name, was untimely submitted. Klein, the former

Assistant Admitting Director, who reported directly to

Failla, suffered from severe knee arthritis and needed

knee replacement surgery (App. 58-60). On three occa-

sions, Failla told Klein, she could not take FMLA leave to

have knee replacement surgery because her services were

needed at work. Failla also asked Klein to investigate

other methods to treat her arthritis (/d.). The Fifth Circuit

ignored this issue, which was timely raised on appeal.

The Sixth Circuit stated in Ryder Auto Carrier Group,

Inc. v. General Teamsters Sales & Serv., 124 F.3d 199 (6th

Cir. 1997), that Rule 56 does not require the names of

affiants be included on a witness list before the affidavits

are used to support a motion for summary judgment.

Likewise, the Eleventh Circuit remanded a case to the

district court for failure to consider an affidavit that was

stricken from the record for failure to comply with the

7

scheduling order. Lane v. Celotex Corp., 782 F.2d 1526

(11th Cir. 1986) (reversed on other grounds).

The failure of the Court to consider the Klein affidavit

defeats the purpose of Fed. R. Civ. P. 56. This Court has

held that one of the purposes of the summary judgment

rule is to isolate and dispose of factually unsupported

claims or defenses. Celotex Cor; v. Catrett, 477 U.S. 317,

323-324, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986). Further,

this Court has stated that the purpose is to enable a party

who believes there is no genuine dispute as to a specific

fact essential to the other side's case, to demand at least

one sworn averment of that fact before the lengthy process

of litigation continues. Lujan v. National Wildlife Federa-

tion, 497 U.S. 871, 888-889, 110 S.Ct. 3177, 111 L.Ed. 2d

695 (1990). The Court’s action of striking evidence that can

persuade a fact finder of an employer's propensity of

discriminatory intent simply because the name of the

affiant did not appear on a witness and exhibit list, pre-

cludes the possibility of settlement for those litigants who

otherwise would be successful in defeating summary

judgment motions in discrimination cases. Further, this

action erodes the very purpose of Rule 56 and the Seventh

Amendment which gives the litigant a right to a jury trial.

Il. THIS COURT SHOULD GRANT CERTIORARI

SINCE THERE IS A SPLIT IN THE CIRCUITS

REGARDING WHETHER PROOF OF MENDAC-

ITY IS SUFFICIENT TO PRESENT AN EMPLOY-

MENT RETALIATION AND DISCRIMINATION

CASE TO THE JURY UNDER RULE 56.

In regard to the evidence necessary to create a factual

issue under the Age Discrimination Act, this Court has

stated:

8

... [under the] “burden shifting analysis, the

plaintiff - once the employer produces sufficient

evidence to support a nondiscriminatory expla-

nation for its decision — must be afforded the op-

portunity to prove by a preponderance of the

evidence that the legitimate reasons offered by

the defendant were not its true reasons, but were

a pretext for discrimination. That is, the plaintiff

may attempt to establish that he was the victim

of intentional discrimination “by showing that

the employer’s proffered explanation is unworthy

of credence”. Reeves v. Sanderson Plumbing

Products, Inc. 530 US 133, 147; 120 S.Ct. 2097,

2106, 147 L.Ed. 2d 105 (2000).

Some circuits have held that the elements of a prima

facie case, plus evidence of pretext, are sufficient to create

a jury issue in a discrimination case. See Wood v. Dollar

Rent-A-Car Systems, Inc., 128 Fed. Appx. 620, Slip Copy,

2005 WL 902093 (9th Cir. 2005), stating if a plaintiff

meets her prima facie case and proves reasons for termi-

nation are false, she has met her burden at the summary

judgment phase; Ingels v. Thiokol Corp., 42 F.3d 616, 622

n. 3 (10th Cir. 1994); Olson v. General Elec. Astrospace,

101 F.3d 947, 951-52 (3rd Cir. 1996); DeBoer v. Musaski

Auto Parts, Inc., 124 Fed. Appx. 387, Slip Copy, 2005 WL

434526 (6th Cir. 2005).

evidence of direct discrimination or retaliation. See Schnable

v. Abramson, 232 F.3d 83, 88 (2nd Cir. 2000) holding “never-

theless, plaintiff has not demonstrated that the pretextual

reasons were intended to mask discrimination”; in a FMLA

case, @ slight suggestion of pretext, absent other evidence of

discrimination does not meet plaintiff's ultimate burden,

Weston-Smith v. Cooley Dickerson Hospital, Inc., 282 F.3d

9

60, 70 (1st Cir. 2002); weak evidence introduced by plain-

tiff that reason is false is not enough for jury; Champman

v. AI Transport, 229 F.3d 1012, 1025 (11th Cir. 2000).

The Fifth Circuit, as did the District Court, held

Dutton produced evidence to create an issue of material

fact regarding the truthfulness of the reason given for her

termination. (App. 14). Mary Failla’s stated reason for

terminating Dutton was the number of uncollected ac-

counts in her file tracks. (Failla’s Depo. p. 288). However,

evidence produced by Dutton proves she worked within

Failla’s expectation of collecting fifty accounts per day, and

two weeks prior to her termination, the 1100 uncollected

accounts were reduced to 217 (Record Excerpt 4). Further,

fifty of the sixty-six accounts evidenced on Failla’s grid as

Dutton’s poor performance were accounts under $2,000,

accounts which are collected by a Tulane independent

contractor (Dutton Ex. 34). This evidence, coupled with the

fact Dutton had no prior disciplinary actions regarding her

performance, is sufficient to advance the case to a jury.

Likewise, the Fifth Circuit found Dutton failed to

satisfy her burden of whether Tulane regarded her as

being disabled. (App. 17). The Court said Dutton failed to

produce evidence that Failla viewed Dutton as being

incapable of working a broad range of jobs. The Court

reached this concluson despite evidence of Dutton’s inabi!\-

ity to work at all while in surgery, while recuperating from

surgery, and during additional testing as a result of

complications from her surgery. This conclusion was also

drawn despite Dutton's pretext evidence, and Rose Klein's

testimony that Failla discouraged her from taking FMLA

because she was needed at work.

“if an individual can show that the employer .. .

made an employment decision because of a per-

ception of disability based on “myth fear or

stereotype”, that individual will satisfy the “re-

garded as” part of the definition of disability . . .

if an employer cannot articulate a non-

discriminatory reason for the employment action,

an inference that the employer is acting on the

basis of “myth”, fear, or stereotype can be drawn”

29 CFR pt. 1630 App. §1630(2).

Despite this mandate several circuits have held that

evidence of pretext is not sufficient for a jury to conclude

that the employer perceived or regarded the employee as

being disabled. See Rakity v. Dillard Companies Inc., 302

F.3d 1152, 1165 (10th Cir. 2002), rejecting the holding that

the issue of pretext concealed discrimination and the issue

that the employer regarded the plaintiff as disabled; Neese

v. Nordic Const. Co., 405 F.3d 638, 642 (7th Cir. 2003),

stating, “like the 10th circuit, we also decline to follow

Ross.” Also following suit is the holding by the First

Circuit in Sullivan v. Neiman Marcus Group, Inc., 358

F. 3d 110, 116 (2004), stating the employee's contention

that he was fired for alcoholism was not sufficient to

demonstrate that the employer considered the employee to

be limited in the ability to work in a broad range of jobs.

However there are two circuits that follow the EEOC

regulation. In Heyman v. Queens Village Committee for

Mental Health, 198 F.3d 68, 73 (2d Cir 1999), the Court

held that plaintiff's evidence of pretext could lead a jury

to believe that the employer regarded the employee as

being disabled. Likewise, the Sixth Circuit, in Ross v.

Campbell Soup Co., 237 F.3d 701, 708 (2001) stated the

11

evidence of pretext may also tend to show Campbell Soup

regarded plaintiff as being disabled.

Again these circumstances heavily implicate Rule 56

and summary judgment proceedings in discrimination and

retaliation cases. These cases depend heavily on the

credibility of witnesses because the intent of the actor has

to be assessed. Summary Judgment is a mechanism that is

used to discard cases which have no questions of fact in

need of resolution. To the contrary, summary judgment

should not be used to discard cases, wherein litigants have

proauced competent evidence that comports with the

mandates of Rule 56. To do this deprives a litigant of her

right to a jury, and, at the very least, an opportunity to

settle the dispute, as most employers will not entertain

settlement options until summary judgment issues have

been decided.

7

CONCLUSION

For all the foregoing reasons, the petitioner respect-

fully requests that the Supreme Court grant review of this

matter.

Respectfully submitted,

TRACIE J. JACKSON

3870 Gertin St.

Houston, Texas 77004

(713) 303-3935

Attorney for Petitioner

App. 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-30554

AMANDA DUTTON,

Plaintiff-Appellant,

versus

UNIVERSITY HEALTHCARE

SYSTEM, L.L.C.,

d/b/a, TULANE UNIVERSITY

HOSPITAL AND CLINIC,

Defendant-Appellee.

Appeals from the United States District Court

for the Eastern District of Louisiana

No. 03-2084 D(4)

(Filed April 29, 2005)

Before KING, Chief Judge, BENAVIDES, and STEWART,

Circuit Judges.

PER CURIAM:*

Amanda Dutton (“Dutton”) appeals from the district

court’s grant of summary judgment in favor of her former

* Pursuant to 5TH Cir. R. 47.5, the court has determined that this

opinion should not be published and is not precedent except under the

limited circumstances set forth in 5TH Cir. R. 47.5.4.

App. 2

employer, University Healthcare System, doing business

as Tulane University Hospital and Clinic (“Tulane”), which

dismissed her claims under the Family Medical Leave Act

(“FMLA”), 29 U.S.C. § 2601 et seq., and the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. We

affirm the grant of summary judgment for essentially the

same reasons as the district court.

BACKGROUND

Prior to her termination, Dutton worked as a supervi-

sor in Tulane’s Business Services Office (“BSO”) from

March 1999 to December 2001. Dutton was initially

responsible for non-governmental billing and collections;

her immediate supervisor was Mike Lane (“Lane”), Direc-

tor of the BSO. The BSO reorganized in 2000, centralizing

its billing and collections function at one location in Texas.

The district court determined that Tulane gave Dutton

and her colleagues notice that, as a result of the reorgani-

zation, their department would be closing.

In that same year, Lane was replaced by Mary Failla

(“Failla”) as Dutton’s immediate supervisor. As part of

Failla’s own reorganization, Dutton lost supervisory

authority over non-governmental billing, but kept supervi-

sion over non-governmental collections. To assist and

educate personnel in the business office, Failla hired an

outside consulting firm, Coast to Coast Consulting, Inc.

(“Coast Consulting”). From October 2000 until mid-

December 2000, Tulane alleges that Coast Consulting

evaluated ongoing problems in the department, including

problems with Dutton’s performance and with her staff.

The district court determined that despite Failla’s efforts

to improve Dutton’s performance, Failla observed and

App. 3

documented continued problems with Dutton and her staff

in the area of collections and collection follow-ups.

In June of 2001, Dutton requested and was granted

leave under the FMLA. Dutton’s leave extended from June

20, 2001 to August 20, 2001, while she underwent removal

of a fibroid tumor on her uterus. During Dutton’s leave,

Tulane contracted services for part of her duties to Ad-

vanced Receivables Strategy, Inc. (“ARS”), a company

specializing in billing and collections. ARS’ task was to

perform many of Dutton’s duties, offer suggestions on how

to improve her staff’s performance, and to train Dutton’s

staff to perform more efficiently. Tulane alleges that

during Dutton’s absences, two ARS employees, Elizabeth

Mirck and Carlo Ianni, discovered serious deficiencies in

Dutton’s performances in the area of collections, including

over 1900 of Dutton’s accounts had not been worked-up

and that Dutton had a backlog of mail that had never been

opened. The ARS employees conveyed to Failla a list of

violations by Dutton. On August 20, 2001, Failla issued

Dutton a written warning, listing all the violations com-

municated by the ARS employees. On Augusi /1, 2001, the

day Dutton returned from leave, Tulane alleges Failla

presented Dutton with a list of the violations and the

* The violations include the following: Dutton (1) was not ade-

quately reviewing collectors’ work and interacting with them, (2) was

not properly monitoring collectors’ phone usages, (3) was not requesting

implant invoices timely, (4) had not developed cardiac stent invoicing

procedures, (5) had apparently no lines of communication between

herself and her staff, (6) had failed to deal with a substantial amount of

urgent and un-worked correspondence in her office from insurance

companies and others who owed money to Tulane, (7) had no organized

filing system for confidential personnel information, (8) had an unor-

ganized work area, and (9) had failed to implement and monitor certain

procedures, thereby causing redundant work for her and her collectors.

App. 4

corrective actions to cure them. Tulane also alleges that

Failla counseled her concerning the infractions. In a

written memorandum, Dutton later denied most of the

violations raised by Failla. In October 2001, Dutton

requested a second leave from October 15, 2001 to October

22, 2001, to undergo additional medical procedures arising

from, she claims, complications from the first medical

procedure. Dutton was permitted to tak the second leave,

despite the fact that neither Dutton, or Tulane, desig-

nated those absences as FMLA leave.

On November 1, 2001, Failla reviewed Dutton’s file

and discovered that over 1,000 accounts had not been

worked-up. Failla requested Dutton to work-up the ac-

counts by November 9, 2001. When Failla reviewed those

files on November 9, she found that over 1000 accounts

still had not been worked-up. The district court deter-

mined the dollar amount of the accounts amounted to

$556,732.04. Dutton was subsequently terminated on

December 4, 2001.

As a result of her termination, Dutton filed suit in the

United States District Court for the Eastern District of

Louisiana, alleging that Tulane violated § 2601-2654 of the

FMLA by retaliating against her for taking protected

medical leave. Dutton specifically contended that Tulane

retaliated against her by: (1) writing her up after her

return from FMLA leave; (2) failing to restore her to the

position she held prior to her leave; (3) holding her to a

higher standard of performance after her return from

leave; and (4) terminating her shortly after returning from

her second FMLA leave. Dutton also alleged that Tulane

violated her rights under the ADA by discriminating

against her because of her disability.

App. 5

The parties subsequently filed opposing motions for

summary judgment. After the district court granted

Tulane’s motion for summary judgment, Dutton filed this

timely appeal. Dutton’s appellate claims essentially

contend that the district court: (1) erred in granting

Tulane’s motion for summary judgment on her FMLA and

ADA claims; and (2) abused its discretion under the ADA

in awarding expert costs. Tulane’s motion for attorney's

fees pursuant to 42 U.S.C. § 12205 of the ADA has been

carried with the case.

STANDARD OF REVIEW

We review de novo a district court’s grant of a motion

for summary judgment, applying the same standard as the

district court did in the first instance. See Burge v. Parish

of St. Tammany, 187 F.3d 452, 465 (5th Cir. 1999). Sum-

mary judgment is appropriate where the moving party

establishes “there is no genuine issue of material fact and

that [it] is entitled to judgment as a matter of law.” Feb. R.

Civ. P. 56(c). Accordingly, the moving party must show

that if the evidentiary material of record were reduced to

admissible evidence in court, it would be insufficient to

permit the nonmoving party to carry its burden. Celotex v.

Catrett, 477 U.S. 317, 327 (1986). The moving party “need

not negate the elements of the nonmovants’s case.” Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

Once the moving party has carried its summary

judgment burden, the opposing party must set forth

specific facts showing a genuine issue for trial. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Wallace v.

Texas Tech Univ., 80 F.3d 1042 (5th Cir. 1996). Allegations

or affidavits setting forth merely conclusory facts and

App. 6

conclusions of law are insufficient. Galindo v. Precision

American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).

Rather, the nonmovant is required to show more than

some metaphysical doubt as to the material facts; Matsu-

shita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

584-86 (1986), he or she must put forth “concrete and

particular facts.” Duffy v. Leading Edge Products, Inc., 44

F.3d 308, 312 (5th Cir. 1995).

Section 2612(aX1\D) of the FMLA requires employers

governed thereunder to provide eligible employees with up

to twelve weeks unpaid leave if an employee has a “serious

health condition,” rendering that employee unable to

perform the functions of his or her normal position.

Manuel v. Westlake Polymers Corp., 66 F.3d 758, 761 (5th

Cir. 1995). Once the employee returns from a qualified

FMLA absence, the employer must return the employee to

the same position or one comparable to that held before

taking leave. 29 U.S.C. § 2612(aX1); see also Chaffin v.

Carter Co., Inc., 179 F.3d 316, 319 (5th Cir. 1999) (counsel-

ing that an employer may not “interfere with, restrain, or

deny the exercise of ... any right provided under” FMLA)

(quoting from 29 U.S.C. § 2615(a\(2)). Thus, FMLA em-

ployers are statutorily prescribed from penalizing employ-

ees for exercising rights provided under the statute. 29

U.S.C. § 2612(aX1); Chaffin, 179 F.3d at 319.

A plaintiff seeking to establish a claim of discrimina-

tion or retaliation pursuant to 42 U.S.C. § 12102(2) of the

ADA must first establish that she has a “disability” by

establishing that she has: (1) a physical or mental im-

pairment that substantially limits one or more of the

App. 7

major life activities of an individual; (2) a record of her

impairment; or (3) that she can “be regarded” as having an

impairment. See Sharod v. American Airlines, 132 F.3d

1112, 1119 (Sth Cir. 1998). Thus, a plaintiff who is in fact

not disabled, as is Dutton, may establish a claim of dis-

crimination or retaliation under the “regarded as” prong if:

(1) she has no impairment at all but is regarded by the

employer as having a “substantially limiting” impairment;

or (2) she has an impairment which is not substantially

limiting but which the employer perceives as constituting

a “substantially limiting” impairment. See Peagram uv.

Honeywell, Inc., 363 F.3d 272, 287 (5th Cir. 2004). If a

plaintiff can meet this burden, her claim is then assessed

under the McDonnell Douglas standard for discrimination

or retaliation claims discussed below. Sharod, 132 F.3d at

1122.

To prevail on a claim that one’s employer retaliated

against her for exercising FMLA rights in a case with no

direct evidence of retaliation, as in this case, a plaintiff

must first establish a prima facie case of retaliation. Jd. at

320-21. This court utilizes the familiar McDonnell Douglas

burden shifting analysis to determine whether the plain-

tiff was retaliated against. Id.; see also Hunt v. Rapides

Healthcare System, L.L.C., 277 F.3d 757, 768 (Sth Cir.

2001). Therefore, a prima facie case of retaliation is

demonstrated if the plaintiff establishes that: (1) she

engaged in activity protected under the FMLA; (2) her

employer carried out conduct adverse to her employment;

(3) and a causal connection exists between the protected

activity taken and the adverse employment action con-

ducted by her employer. Hunt, 277 F.3d at 757; Chaffin,

179 F.3d at 319; see also Jaynes v. Pennzoil Co., 207 F.3d

296, 299 (5th Cir. 2000). “The causal link required by the

App. 8

third prong of the prima facie case does not rise to the

level of a ‘but for’ standard. [Thus,] [t]he plaintiff ‘need not

prove that her protected activity was the sole factor

motivating the empiloyer’s challenged decision in order to

establish the ‘causal link’ element of a prima facie case.’”

Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002) (internal

and external citations omitted). Notwithstanding, the

plaintiff carries the burden of persuasion, and once a

prima facie case is established, a presumption of retalia-

tion arises. See, e.g., Pratt, 247 F.3d at 606.

After the presumption is raised, however, the burden

shifts to the employer to articulate a legitimate, non-

retaliatory reason for terminating the employee. Reeves v.

Sanderson Plumbing Products, Inc., 530 U.S. 133, 142

(2000); Chaffin, 179 F.3d at 319-20. As this burden “is one

of production, not persuasion, it can involve no credibility

assessment.” Reeves, 530 U.S. at 142; see also, Patrick v.

Ridge, 394 F.3d 311, 315 (5th Cir. 2004) (stating that “the

employer need not prove that it was actually motivated by

its proffered reason.”) (citing Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 255 (1981)). If the employer meets

its burden, however, the presumption of retaliation is

rebutted. Chaffin, 179 F.3d at 320. The burden of persua-

sion then shifts back to the plaintiff to demonstrate that

her employer’s articulated reason for terminating her was

merely a pretext for unlawful retaliation. Jd.

A plaintiff seeking to survive summary judgment at

this juncture must point to some evidence establishing

that the employer’s proffered reasons are pretextual.

Reeves, 530 U.S. at 143; Gee, 289 F.3d at 345. In some

instances, proof of pretext alone will be sufficient to

preclude summary judgment. Reeves, 530 U.S. at 143

(stating that “a plaintiff’s prima facie case, combined with

App. 9

sufficient evidence to find that the employer's asserted

justification is false, may permit the trier of fact to con-

clude that the employer unlawfully discriminated”) (em-

phasis supplied); cf. Crawford v. Formosa Plastics Corp.,

La., 234 F.3d 899, 903 (5th Cir. 2000) (observing that it is

“possible for a plaintiff's evidence to permit a tenuous

inference of pretext and yet be insufficient to support a

reasonable inference of discrimination”); Walton v. Bisco

Indus., Inc., 119 F.3d 368, 371 (5th Cir. 1997). Indeed, the

Supreme Court has instructed that, “[clertainly there will

be instances where, although the plaintiff has established

a prima facie case and set forth sufficient evidence to

reject the defendant’s case and set forth sufficient evidence

to reject the defendant's explanation, no rational factfinder

could conclude that the action was discriminatory.” Reeves,

530 U.S. at 143 (emphasis supplied). Reeves suggests that

whether a plaintiff can survive summary judgment must

be decided on a case-by-case analysis, determinative of a

number of factors, including, “the strength of the prima

facie case, the probative value of the proof that the em-

ployer’s explanation is false and any other evidence that

supports the employer’s case and that properly may be

considered.” Jd. at 148-49. The ultimate burden of persua-

sion lies “at all times with the plaintiff.” Jd. at 143.

DISCUSSION

A. FMLA Claim

Dutton contends that she has propounded sufficient

evidence to raise a genuine issue of material fact that

Tulane terminated her because she took protected medical

App. 10

leave.’ For this reason, she maintains that the district

erred in granting Tulane’s motion for summary judgment.

For the purpose of our analysis we assume (as did the

district court) without deciding that Dutton established a

prima facie case of discrimination. We proceed to examine

Tulane’s asserted reasons for terminating Dutton. Tulane

proffers as its legitimate, non-retaliatory reasons for

terminating Dutton, assertions that Dutton had poor work

* For the same reasons given by the district court, we reject

Dutton’s contention that she was retaliated against by not being

restored to the same or an equivalent position held prior to her FMLA

leave. Indeed, Dutton’s own deposition testimony contravenes her

assertion:

Q. As part of that reorganization, you lost supervision

over the billers and just had supervision over the collectors;

is that right?

A. Correct.

Q. Does that decision form any part of this lawsuit?

A. No. (Dutton’s depo., at 55)

Q. Other than your discharge from employment, were

there any other incidents of retaliation that you can point

to?

A. Not that I can point to.

We also reject Dutton’s contention that she was retaliated against

because Tulane issued her a letter of reprimand after her return from

leave. As the district court properly noted, merely being written up by

one’s employer is not an adverse employment action because such

conduct does not involve an employer's “ultimate decision.” See Mattern

v. Eastman Kodak Co., 104 F.3d 702, 707 (Sth Cir. 1997) (observing that

ultimate acts involve “ ‘conduct such as hiring, granting leave, discharg-

ing, promoting, and compensating’ ”) (citation omitted); Thomas v. Tex.

Dep't of Criminal Justice, 220 F.3d 389, 394 n.2 (5th Cir. 2000) (holding

that “receiving formal discipline” is not an “ultimate employment

decision”). For this re-*on, we only consider Dutton’s claim that she

was unlawfully terminaved for exercising her FMLA rights.

App. 11

performances and failed to meet expectations in, among

other areas, monitoring activities and accuracy of her

work assignments. In support, Tulane proffers evidence

that before, during, and after taking leave, Dutton exhib-

ited repeated problems in her supervisory duties. Tulane

provides evidence that as of December 6, 2000, Dutton had

not instituted a procedure for her, or her staff, to collect

stent invoices, and as a result, Tulane was not reimbursed

for some of those expenditures;’ that in May 2001, prob-

lems were discovered from an internal audit regarding

Dutton’s performance with follow-ups in collections; that

in January 2002, Failla documented other problems with

Dutton’s performances, specifically with regard to: “(1)

Dutton’s use of her productivity reports, (2) her inadequate

interaction bi-weekly with collectors [, i.e., her staff], (3)

her practice of putting herself up above her collectors, (4)

her failure to work enough hours, and (5) her absence from

the department when her collectors were working.”

Tulane also points to evidence demonstrating that in April

2001, approximately two months prior to Dutton’s first

leave, Dutton received a poor performance evaluation, and

that it was Dutton’s lowest overall score during her em-

~ployment ut Tulane. As a result of the low performance

score, Dutton’s supervisor, Faillia, suggested, inter alia,

that Dutton work on her communications skills with her

* Stents are cardiac implant devices used during surgery. One of

Dutton’s responsibilities inciuded collecting information regarding

stents placed in patients, e.g., the manufacturer’s invoice number of the

stent, from the patient’s cardiologist in order for Tulane to be reim-

bursed by that patient's insurer for the cost of the stent.

* Dutton states in her deposition that she recalls discussing some

of these issues with Failla, specifically with regard to the productivity

of her collectors.

App. 12

staff. Finally, Tulane highlights the list of serious deficien-

cies discovered by the ARS employees delineated, supra.

We find that these reasons, if accepted as true by a fact-

finder, are sufficient to rebut Dutton’s presumption of

retaliation. Stated differently, the record evidence is

sufficient to find that Tulane’s proffered reasons are not

incredible as a basis for its decision to terminate Dutton.

Thus, the question becomes whether Dutton has

proffered substantial probative evidence that Tulane’s

reasons for discharging her were false. This tasks [sic]

entails discerning whether the evidence propounded by

Dutton is sufficient for a reasonable factfinder to conclude

that Tulane’s proffered reasons for discharging Dutton are

mendacious. See Laxton v. Gap, Inc., 333 F.3d 572, 579

(5th Cir. 2003).

In support of Dutton’s contention that she was dis-

charged because she took FMLA leave, Dutton asserts a

host of arguments. Dutton first contends that, but for

taking leave, Tulane would not have fired her. She asserts

that the real reason she was terminated is because her file

tracks had ballooned from 100 to over 1,000, while she was

on leave. She also states that the increase was a natural

result of her being out on medical leave, and suggests that

the responsibility of attending to her accounts while on

leave was left to Failla.

Dutton next contends that contrary to Tulane’s con-

tentions, her performance score of two on the formal

performance evaluation does not reflect that she was

deficient, but instead demonstrates that her performance

consistently met expectations, but did not exceed expecta-

tions. She suggests that a reasonable factfinder could infer

from the typewritten note listing her alleged infractions

App. 13

that Failla presented to her is not credible because the

listed discrepancies were not presented in her formal

evaluation. She also states that Failla’s enumerated

discrepancies were typewritten on an informal document

instead of the forma] document required under Tulane’s

policy. Dutton further contends that a factfinder could

infer that Failla is not credible because the comments

written by Failla on her formal evaluation were identical

to coraments Failla wrote on the evaluations of five of her

supervisory counterparts in different departments.

Next, Dutton contends that the informal typewritten

complaints of her performance are contradicted by the

findings that ensued from the internal audit. Dutton

states that the audit’s report conversely indicates that she

was outperforming her supervisory counterparts working

in the governmental section of the BSO. Dutton contends

that the audit’s report is further proof that the list of

discrepancies presented to her by Faiila is not credible

since Failla’s allegations are directly contradicted by the

findings in the audit.

Finally, Dutton contends that she has established a

genuine issue of material fact as to Failla’s informal list of

discrepancies because, after she was presented with the

list from Failla, she filed a response rebutting every

infraction alleged by her supervisor.

Based on the foregoing, the district court concluded

that Dutton presented sufficient evidence to raise a

genuine issue of materia] fact regarding whether Tulane’s

reasons for terminating Dutton were untrue. The court

nonetheless concluded that Dutton failed to present compe-

tent summary judgment evidence sufficient to create a

reasonable inference that Tulane fired her because she

App. 14

exercised her rights under FMLA. We agree with both of

the court’s assessments.

As the district court noted, Dutton puts forth compet-

ing contentious assertions concerning whether she indeed

had poor work performances and continually failed to meet

Failla’s work expectations. But see Little v. Republic

Refining Co., 924 F.2d 93, 97 (5th Cir. 1991) (stating that

“(tlhe existence of competing evidence about the objective

correctness of a fact underlying a defendant’s proffered

explanation does not in itself make reasonable an infer-

ence that the defendant was not truly motivated by its

proffered justification”). Dutton’s problem, however, is a

failure of proof. Thus, Tulane’s summary judgment results

from Dutton’s failure to meet the summary judgment

standard. See Clark v. America’s Favorite Chicken Co., 110

F.3d 295, 297 (5th Cir. 1997) (directing that “[unsupported

allegations or affidavit or deposition testimony setting

forth ultimate or conclusory facts and conclusions of law

are insufficient to defeat a motion for summary judg-

ment”). Dutton’s rebuttal lies in naked assertions, unsub-

stantiated by the record. Hence, she does not marshal

sufficient objective evidence to allow for a reasonable

inference that Tulane was motivated by retaliation. For

example, she produces no counter-reports, aside from her

self-serving written denial of the ARS employees’ findings,

to rebut Tulane’s third-party’s report listing a host of

workplace failures by her. She produces no affidavits or

deposition testimony from other supervisors or credible

employees attesting to the fact that the ARS employee's

report was inaccurate or false. There is no actual proof

that Failla was indeed responsible for her accounts while

she was out on leave, and no proof to sufficiently rebut

App. 15

Tulane’s assertion that she neglected to open wee!’s worth

of incoming mail.

Oddly, Dutton’s inability to rebut her employer’s

proffered business reasons for terminating her is further

hindered by her own deposition testimony. Indeed, plain-

tiff’s deposition testimony acts to suck the remaining air

‘propelling her claim, completely out of her sails. We

highlight just some of her deposition testimony to make

our point:

Q. Were you receptive to their [the ARS em-

ployees) efforts to help out?

A. I became receptive, yes. (Dutton’s depo.,

at 85);

Q. Okay. Item 2 [of the ARS report] mentions a

productivity report... .

Q. Do you recall her [Failla] saying anything

that indicated to you a concern on Mary’s

part that the collectors could have been

more productive than they actually were?

A. Yes. (Dutton’s depo., at 100-02);

Q. Were you aware that an internal audit had

occurred before I produced this document to

you in the lawsuit?

A. Yes.

Q. It [the internal audit report] says, “Collec-

tion follow-up should be monitored more

closely to help ensure adequate follow-up is

App. 16

performed timely based on established col-

lection philosophies.” Do you see that?

A. Yes.

Q. Prior to getting a copy of this document

from me, were you aware that the internal

auditors found collection follow-up to be a

major issue as part of their audit?

Yes. (Dutton’s depo., at 102-03);

Q. What I'm asking is: Part of what needed to

be done to improve the follow-up would have

been to communicate your expectations to

your collectors, but part of that, also, was

you actually, effectively, monitoring their ac-

tivities; is that right?

A. Right. (Dutton’s depo., at 102-03)

We think some of the most damning testimony has to do

with statements of how Dutton rated her own performance

in a particular area:

Q. Take a look at item 5 [of the formal evalua-

tion], ‘Monitors activities and: work assign-

ments for accuracy, timeliness, in

compliance with department standards.’ Do

you see that?

A. Yes.

Q. Okay. Now, you rated yourself a one, ‘Does

not meet [expectations]’; is that right?

A. Yes. (Dutton’s depo., at 108)

P

After careful review of the entire record, we are

sufficiently persuaded that Dutton has failed to provide

evidence sufficient for a reasonable factfinder to infer, by a

App. 17

preponderance of the evidence, that Tulane discharged her

— because she exercised her rights under the FMLA.

B. ADAClaim

We pretermit an analysis of the timeliness of Dutton’s

ADA claim and proceed to the merits and conclude as the

district court that she failed to establish a “disability”

under the Americans With Disability Act. The only ele-

ment that was at issue in establishing that she had a

disability was the “regarded as” prong. See Sharod, 132

F.3d at 1122. The district court concluded that Dutton

produced no evidence to raise a genuine issue of material

fact that she was ever “regarded as” disabled by Tulane.

We have carefully reviewed this record and similarly find

that there is no evidence to create a genuine issue of

material fact that Tulane ever regarded Dutton as dis-

abled. Accordingly, this claim is without merit.

C. Attorney's Fees

Finally, Tulane contends, pursuant to Fifth Circuit

Rule 47.8, that it is entitled to an award of a portion of the

attorney's fees it incurred in defending Dutton’s claims

under the ADA and the FMLA because Dutton’s claims

were frivolous. After dismissing all of Dutton’s claims with

prejudice, the district court awarded Tulane $21,787.50 in

attorney's fees it incurred in defending Dutton’s claims

under the ADA. Section 12205 of Title 42 of the United

States Code allows a court to award the defending party of

an ADA action, “reasonable attorney's fees, including

litigation expenses and costs,” if the court finds the plain-

tiff’s claim was “frivolous, unreasonable, or without

foundation, even though not brought in subjective bad

App. 18

faith.” Christiansburg Garment Co. V. EEOC, 434 US.

412, 421 (1978). See also EEOC v. First Alabama Bank,

NA., 595 F.2d 1050, 1056 (5th Cir. 1979). The district

court noted that Dutton failed to dismiss the claim after

Tulane suggested to her it had no merit. We have reviewed

Dutton’s contentions in her brief suggesting that her ADA

claim had merit because Tulane offered to settle that

claim. Again, Dutton’s own deposition testimony cited

above acts as her Achilles heel.

Because Dutton virtually admits she had no ADA

claim, we do not consider the district court’s denial of her

request for equitable tolling. After full review of the

record, we cannot find that the district court abused its

discretion in awarding Tulane attorney's fees pursuant to

§ 12205 of the ADA. See No Barriers, Inc. v. Brinker Chili’s

Tx., Inc., 262 F.3d 496, 498 (5th Cir. 2001) (directing that

this court reviews a district court’s award of attorney’s fees

for an abuse of discretion). Accordingly, the district court’s

award of attorney's fees to Tulane in the amount of

$21,787.50 was not an abuse of discretion. Also, carried

with the case is Tulane’s motion for additional attorney's

fees in the amount of $12,443.12. We award $10,000 as

reasonable attorney's fees for this appeal. Costs are

assessed against the appellant, Dutton.

CONCLUSION

Because Dutton does not present sufficient evidence to

allow for a reasonable inference that Tulane terminated

her because she took protected medical leave, she has

failed to meet her summary judgment burden of proving a

genuine issue of material fact concerning her FMLA claim.

for this reason, and all the reasons stated herein, the

App. 19

order of summary judgment by the district court dismiss-

ing Dutton’s claims with prejudice and awarding Tulane

attorney's fees is AFFIRMED. Tulane’s motion for addi-

tional attorney's fees is GRANTED.

SUMMARY JUDGMENT AND ATTORNEY'S FEE

AWARD AFFIRMED AND MOTION FOR ADDITIONAL

ATTORNEY’S FEES GRANTED IN PART.

App. 20

MINUTE ENTRY

McNAMARA, J.

MAY 12, 2004

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

AMANDA DUTTON * CIVIL ACTION

VERSUS ; NO: 03-2084

UNIVERSITY HEALTHCARE * SECTION: “D"(4)

*

SYSTEM, L.L.C., ET AL

(Filed May 12, 2004)

Before the court are the following motions:

(1) “Motion to Strike Expert Witnesses” (Doc.

No. 27) filed by Defendant, University Health-

care System, L.L.C. d/b/a Tulane University

Hospital and Clinic (Tulane Hospital); and

(2) “Motion to Strike Witnesses and Exhibits”

‘(Doc. No. 40) filed by Defendant.

The motions are before the court on briefs, without

oral argument. Now, having reviewed the memoranda of

counsel and the applicable law, the court rules.

(1) Defendant's 1st Motion to Strike (Doc. No. 27)

In this motion, Defendant asks the court to strike the

following three witnesses designated as experts by the

Plaintiff: (1) Dr. Craig R. Thompson; (2) Dr. Robert W.

Kelly; and (3) Dr. Laura E. Trunk. Defendant argues that

these three physicians “appear to be Dutton’s present or

former treating physicians” and that the reports they have

App. 21

provided do not satisfy the requirements of Federal Rule of

Civil Procedure 26(aX2\B), because these physicians have

“either simply read their charts regarding Dutton or read

the records of others.” (See Defendant’s Motion, Doc. No.

27 at 1; see also Doc. No. 47, to which Defendant has

attached the reports of Drs. Thompsen, Kelly and Trunk).

Alternatively, Defendant asks the court for an “order

limiting these witness’ testimony to the facts of their

treatment of plaintiff and prohibiting them from testifying

regarding issues of causation or prognosis with respect to

Dutton’s alleged conditions.” (Doc. No. 27 at 3).

The court GRANTS Defendant’s 1st Motion to Strike,

STRIKING Drs. Thompson, Kelly and Trunk as “experts”

because they have failed to provide proper expert reports.

However, if this matter had gone to Trial, they would be

allowed to testify regarding their treatment of Plaintiff.’

(2)_ Defendant’s 2nd Motion to Strike (Doc. No. 40)

In this motion, Defendant moves the court for an

order striking the following witnesses and exhibit from

Plaintiff’s Amended Witness and Exhibit List (Doc. No.

32):

(1) Dr. Bellina (Plaintiff's treating physician);

(2) Rose Kline (former admitting supervisor); and

(3) Department of Labor FOIA documents.

* In a Minute Entry issued simultaneously with this one, the court

granted the Defendant's Motion for Summary Judgment, dismissing

Plaintiff's claims. (Doc. No. 63).

App. 22

Additionally, Defendant moves the court for an order

striking the following exhibits from Plaintiffs’ Opposition

(Doc. No. 33) to Defendant’s Motion for Summary Judg-

ment:

(1) Expert Report of Dr. Thompson (Plaintiff’s

Exhibit 23);

(2) Expert Reports of Drs. Trunk and Kelly (Plain-

tiff’s Exhibits 21 and 22);

(3) the DOL Investigative Report (Plaintiff’s Exhibit

62); and

(3) [sic] the Affidavits of Amanda Dutton, Karen Erin

and Rose Kline (Plaintiff’s Exhibits 63-65).

Background

In the court’s Minute Entry entered following the

Preliminary Conference, the court instructs the parties, in

part, as follows:

Initial disclosures pursuant to Fed.R.Civ.P.

26(aX(1) must be exchanged no later than No-

vember 6, 2003.

Depositions for use at trial shall be taken and all

discovery shall be completed no later than April

5, 2004.

Written reports of experts, including treating

physicians, who may be witnesses for plaintiff

fully setting forth all matters about which they

will testify and the basis therefor shall be ob-

tained and delivered to counsel for defendant as

soon as possible, but in no event later than Feb-

ruary 3, 2004.

(See Minute Entry, entered on October 23, 2003, Doc. No.

4) (emphasis added).

On January 30, 2004, Defendant filed an “Unopposed

Motion to Extend the Deadline to Exchenge Expert Re-

ports and to Depose Experts”. The court granted that

motion, and Plaintiff's deadline to provide expert reports

was extended to March 19, 2004, and Defendant's deadline

to provide expert reports was extended to April 19, 2004,

with both parties reserving their rights to depose said

experts prior to trial. (Doc. No. 7).

On March 3, 2004, Plaintiff timely filed her Witness

and Exhibit List. (Doc. No. 9). On March 4, 2004, Defen-

dant timely filed its Exhibit List (Doc. No. 10) and Witness

List (Doc. No. 11).

App. 24

On March 30, 2004, Defendant filed its Motion for

Summary Judgment (Doc. No. 25) and 1st Motion to Strike

(Dec. No. 27). On April 6, 2004, over a month after the

court deadline of March 4, 2004, Plaintiff filed an

“Amended Witness and Exhibit List”. (Doc. No. 32). And,

on April 12, 2004, Plaintiff filed her opposition (Doc. No.

33) to Defendant's Motion for Summary Judgment.

Dr. Bellina

On Plaintiff's original Witness List, Plaintiff includes

“Dr. Bellina: Treating Physician.” Defendant argues

that Dr. Bellina should be stricken because Plaintiff never

provided Defendant with an expert report by Dr. Bellina.

Plaintiff submits that due to a medical inability, Dr.

Belline did not provide an expert report, and that Dr.

Kelly (Dr. Bellina’s assistant) summarized Dr. Bellina’s

notes. The court concludes that Dr. Bellina should be

stricken as an expert, because he has provided no expert

report.

Accordingly, the court STRIKES “Dr. Bellina” as an

expert in this matter.

Rose Kline

On Plaintiff’s “Amended Witness and Exhibit List,”

Plaintiff added “Rose Kline” as an additional witness.

Because depositions had to be taken and discovery had to

be completed by April 5, 2004 (the day before Plaintiff filed

Amended Witness and Exhibit List), Tulane was not

afforded the opportunity to depose this witness. Counsel

for Plaintiff argues that she informed Defendant’s counsel

of her “intention” to amend her witness list to add Rose

App. 25

Kline during the deposition of another witness, Mary

Failla, on March 24, 2004, and thus Defendant had two

weeks to depose Rose Kline. (Plaintiff's Opp., Doc. No. 56,

p. 2). However, the court rejects this argument, because

this is a court of record, not “intention”, and based on the

record, Plaintiff’s amended witness list was untimely filed

without a motion for good cause.

Accordingly, the court STRIKES “Rose Kline” from

Plaintiff ’s Amended Witness List.

The court also STRIKES the Affidavit of Rose

Kline which Plaintiff attached as Exhibit 65, to her

opposition to Defendant’s Motion for Summary Judgment.

Plaintiff filed her opposition (Doc. No. 33) on April 12,

2004, and the court will not allow Plaintiff to get testi-

mony from this witness through the back door when she is

precluded from getting it in the front door.

Department of Labor Investigative Report

On Plaintiff’s “Amended Witness and Exhibit List”,

Plaintiff also added “Department of Labor FOIA

documents” as a new exhibit. However, contrary to the

court’s Scheduling Order, Plaintiff did not file a motion for

good cause to add this exhibit past the court-imposed

deadline. In her opposition, Plaintiff argues that Defen-

dant had notice of Plaintiff’s “intentior.” *> use the DOL’s

investigative report, because Plaintiff’s November 13,

2003 Amend (sic) Initial Disclosures lists “All documents

received pursuant to a FOIA request from the Department

of Labor”. (Plaintiff’s Opp., Doc. No. 56, p. 1). However,

again, the court rejects this argument because this is a

court of record, not “intention”, and based on the record,

Plaintiff ’s amended exhibit list was untimely filed without

App. 26

a motion for good cause. Further, Plaintiff's Initia! Disclo-

sure does not satisfy Plaintiff's obligation to timely file

her exhibit list.

Accordingly, the court STRIKES the “Department

of Labor FOIA documents” from Plaintiff's Amended

Exhibit List.

The court also STRIKES the Department of Labor

internal narrative report which Plaintiff attached as

Exhibit 62, to her opposition to Defendant's Motion for

Summary Judgment. Plaintiff filed her opposition (Doc.

No. 33) on April 12, 2004, and the court will not allow

Plaintiff to get this document in the back door when she is

precluded from getting it in the front door.

Reports of Drs. Trunk. Kelly and Thompson

In opposition to Defendant's Motion for Summary

Judgment, Plaintiff attaches the “reports” of Drs. Trunk,

Kelly and Thompson. (Plaintiff’s Exhibits 21, 22, and 23).

However, in the format submitted by Plaintiff, the court

finds that such “reports” are incompetent summary

judgment evidence and accordingly STRIKES them as

Exhibits to Plaintiff’s Opposition.

The Affidavits of Plaintiff and Karen Erin

In opposition to Defendant's Motion for Summary

Judgment, Plaintiff attaches the Affidavit of Plaintiff and

Affidavit of Karen Erin.” (Plaintiff’s Exhibits 63 and 64).

* Unlike Rose Kline, Karen Erin was included on Plaintiff's timely

filed “original” Witness List. (Doc. No. 9).

App. 27

Defendant argues that these Affidavits should be stricken

because they contain inadmissible hearsay. The court

DENIES Defendant's Motion to Strike these Affidavits,

but discusses the weight given to these Affidavits in the

court's ruling on Defendant's Motion for Summary Judg-

ment.

‘si AJ. McNamara

App. 28

MINUTE ENTRY

McNAMARA, J.

MAY 12, 2004

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

AMANDA DUTTON * CIVILACTION

VERSUS | - NO: 03-2084

UNIVERSITY HEALTHCARE * SECTION: “D"(4)

*

SYSTEM, L.L.C., ET AL

(Filed May 12, 2004)

Before the court are the following motions:

(1) “Motion for Summary Judgment” filed

by Defendant, University Healthcare Sys-

tem, L.L.C. d/b/a Tulane University Hospi-

tal and Clinic (Tulane Hospital), and

(2) “Cross-Motion for Summary

filed by Plaintiff, Amanda Dutton."

The motions are before the court on briefs, without

oral argument. Now, having reviewed the memoranda of

counsel, the record and the applicable law, the court finds

that there are no genuine issues of material fact, and

Defendant is entitled to judgment as a matter of law.

* Plaintiff's Cross-Motion for Summary Judgment is also her

opposition to Defendant's Motion for Summary Judgment.

App. 29

I. Background

Plaintiff, Amanda Dutton, was employed by Tulane

Hospital from March 1999, through December 4, 2001,

when she was terminated. Plaintiff first held the position

of Supervisor of non-governmental billing and non-

governmental collections,’ and reported to the then Direc-

tor of Business Services, Mike Lane.

In June 2000, the Tulane Hospital billing and collec-

tion department was re-organized, and Mary Failla

replaced Mike Lane as the business office director.’ Plain-

tiff lost supervision over the non-governmental billing, but

kept supervision over the non-governmental collection.

Piaintiff’s duties included, but were not limited to, follow-

ing-up and working with the collectors to insure they were

collecting money owed to Tulane Hospital in an appropri-

ate manner.

To assist and educate personnel in the business office,

Ms. Failla hired an outside consulting firm, Coast to Coast

Consulting, Inc. (C2C). Two trainers from C2C worked

with Plaintiff and her collection staff from approximately

October 2000, until mid-December 2000.

Despite the attempt to improve Plaintiff’s perform-

ance, Ms. Failla observed and documented problems. On

* In her opposition memorandum, Plaintiff states that “[tjhe

governmental collections department collected from governmental

entities such as Medicare, Medicaid and Champus” while “[(t)he non-

governmenta!] department collected from private insurance payers and

workmen's compensation.” (Plaintiff's Opp. at 2).

* Before her employment at Tulane, Mary Failla had worked as the

business office manager at Lakeside Hospital, which (like Tulane) is an

HCA facility.

App. 30

November 6, 2000, Ms. Failla sent Plaintiff an e-mail telling

her “not to pass the buck.” (Defendant's Exhibit F). As of

December 6, 2000, Plaintiff had not instituted a written

procedure in place for gathering stent invoices so that Tulane

could collect them [sic] the insurance companies. (Plaintiff's

Dep. at 92). And she never finalized a stent invoice collection

procedure during her tenure at Tulane. (Jd. at 94).

While Plaintiff does not recall the actual date, she

admits that Ms. Failla discussed with her productivity

reports and Ms. Failla’s concern that Plaintiff's collectors

could have been more productive than they actually were.

Ud. at 101-02).

In April 2001, Plaintiff received a performance evalua-

tion, with an overall performance score of two. (Defendant's

Exhibit I). This was the lowest overall performance score

that Dutton received while employed at Tulane Hospital, and

it was also the lowest performance score of any of the super-

visors who reported to Ms. Failla. (Plaintiff's Dep. at 107,

and Failla’s Dep. at 178). Ms. Failla explained that such a

performance was “barely satisfactory.” (Failla’s Dep. at 178).

Plaintiff even rated herself as “does not meet” expectation in

the area of “monitor{ing) activities and work assignments for

accuracy, timeliness and compliance with department

standards.” (Defendant's Exhibit I, p. 5).

On May 7, 2001, financial analysts from Tulane

Hospital's corporate office issued an audit report and

review cf Tulane Hospital's Business Services Offices.

(Defendant's Exhibit J). In their report, these analysts

described as a “major issue”: “(C)ollection follow-up should

be monitored more closely to help ensure adequate foilow-

up is performed adequately, based on established collection

philosophies.” (Exhibit J, p. 2).

App. 31

Piaintiff admitted that she was aware that the inter-

nal auditors found collection follow-up to be a major issue

as part of the audit, and she agreed that communication,

follow-up and monitoring of her collectors needed im-

provement. (Plaintiff’s Dep. at 103). Plaintiff also admit-

ted that she could monitor her collectors’ activities by

using a computer system called “File Tracks”,“ and she

could also monitor their telephone calls by reviewing their

telephone logs. (/d. at 106).

From June 20, 2001 through August 20, 2001, Plain-

tiff requested and was granted leave under the Federal

Medical Leave Act, for the removal of a fibroid tumor in her

uterus. (See Defendant’s Exhibit K, Leave of Absence Re-

port). While Plaintiff was on this leave, Tulane Hospital

contracted with Advanced Receivables Strategy, Inc. (ARS), a

company that specialized in billing and collection functions.

Two ARS representatives, Elizabeth Mirck and Carlo

Ianni, performed many of Plaintiff’s duties during her

absence. On July 19, 2001, Ms. Mirck e-mailed Ms. Failia

regarding the following issues she encountered during her

three weeks as Interim Collections manager: (1) there was

no evidence that the collectors’ productivity logs were

reviewed for accuracy, accountability or for use as a

training and counseling tool and the manager’s file track

* In her opposition memorandum, Plaintiff explained that:

The file track is the system used by each collector to receive

and work accounts for collections each day At the end of each

day, Defendant's system downloads new ocollecticn accounts

into each collector's file tracks. (Plaintiff) receives accounts

from each collector that has not collected an account over 30

days old. (Plaintiff's| file track is updated nightly as well.

(Plaintiff's Opp. at 3, citations omitted).

App. 32

did not show any interaction with the collector after

review and replacement back to the specific collector; (2)

collector phone usage was not monitored; (3) implant

invoices were not requested timely; (4) cardiac stent

invoicing procedures were not developed or implemented

to consistently facilitate the collectors ability to file for

payment; (5) lines of communication and interaction

between the supervisor (Plaintiff) and her staff appeared

to be almost non-existent or limited; (6) Plaintiff’s inbox

contained correspondence that required immediate atten-

tion; (7) there was no organized filing system in place for

confidential personnel information; (8) “generally every-

thing was unorganized”; (9) the failure to implement and

monitor certain procedures was creating redundant work

for two departments. (Defendant’s Exhibit L, Mirck E-

mail).

On August 13, 2001, Mr. Ianni (the other ARS repre-

sentative) e-mailed Ms Failla regarding problems that he

discovered: (1) Plaintiff’s staff members were not aware of

proper policy procedures for non-covered facility charges;

(2) the staff members were improperly or poorly document-

ing accounts; (3) follow-up was not monitored for appro-

priateness and timeliness; (4) ceratin [sic] collection staff

members did not understand why they were performing

certain tasks. (Defendant’s Exhibit L, lanni E-mail).

In a written warning dated August 20, 2001, Ms.

Failla listed Plaintiff’s “Violations and Areals] of Defi-

ciency”, with an accompanying list of “Corrective Ac-

tion[s)”. (Defendant's Exhibit N, Employee Corrective

Counseling Performance Plan & Attachments).

Ms. Failla’s listed violations/areas of deficiency mir-

rored the deficiencies that had been discovered by the ARS

App. 33

personnel, Ms. Mirck and Mr. lanni, and they included: (1)

lines of communication to the staff were almost non-

existent regarding procedure implementations: (2) mail

received was found unopened and had never been worked;

(3) phone logs were not properly used; (4) staff was not

trained appropriately; (5) staff follow-up efforts to collect

were not monitored appropriately; (6) staff notes that were

entered into the system were poor and incomplete; (7) staff

had lack of training, guidance and counseling; (8) cardiac

stent procedure was never completed and set up; (9) no

organization fo [sic] the office or file cabinet; (10) work

given to Plaintiff to complete was never done and never

turned in as requested; (11) file track was not completed

timely or documented properly. (/d.).

On August 21, 2001, the day Plaintiff returned from

her medical leave, Ms. Failla counseled Plaintiff and

presented her with a copy of the Areas of Deficiency and

Corrective Action plan. (Plaintiff’s Dep. at 119-20). On

August 29, 2001, Plaintiff responded with a memorandum

in which Plaintiff denied most of the issues raised by Ms.

Failla. (Defendant's Exhibit O, Plaintiff's Memo.; see also

Plaintiff’s Dep. at 121). Thereafter, Ms. Failla and Plain-

tiff exchanged more memo~ nda. (Defendant's Exhibit P,

* In her deposition, Plaintiff admits thet she was counseled on

August 21, 2001, and she received a list of “Violations/Areas of Defi-

ciency” and “Corrective Action”. (Plaintiff’s Dep. at 119-20).

In her Affidavit attached to her Opposition to Defendant's Motion

for Summary Judgment, Plaintiff denies receiving the Corrective Action

portion of the warning and write-up. (Plaintiff's Exhibit 66, 1 6).

However, Plaintiff cannot defeat Defendant's motion for summary

judgment using an affidavit that impeaches her prior deposition. S. W_S.

Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495-96 (Sth Cir. 1996).

App. 34

Failla’s memo; and Defendant's Exhibits Q & R, Plaintiff’s

memo’s).

In October 2001, Plaintiff requested time off to un-

dergo an additional medical procedure, but she did not

submit a leave of absence form. Neither Plaintiff nor

Tulane Hospital designated this absence as Family Medi-

cal Leave. However, Plaintiff was permitted to be absent

from work. Plaintiff was absent from October 15, 2001 to

October 22, 2001, during which time, she underwent a

single day of out-patient diagnostic procedures (which

included an endoscopy and colonoscopy). (Dutton Dep. at

214).

On November 1, 2001, Ms. Failla reviewed Plaintiff's

“File Tracks”, the computer system used by the Tulane

Hospital Business office to track patient billing and

payment cycles. Ms. Failla noted that Plaintiff had over

1,000 accounts that were not being worked in her File

Tracks system, and she asked Plaintiff to clean out her

File Tracks by November 9, 2001. (Defendant's Exhibit S,

Failla’s E-mail dated November 1, 2001).

On November 9, 2001, Ms. Failla reviewed Plaintiff's

File Tracks and found that there were still over 1,000

accounts in the system that needed work. (Defendant's

Exhibit T, Failla’s E-mail dated November 9, 2001; Defen-

dant’s Exhibit U, print-out of Plaintiff's file track ac-

vounts). The dollar value of these unworked accounts was

$556,732.04. (Defendant's Exhibit U).

* See also fn. 4, supra, for Plaintiff's explanation of the file track

system

App. 35

On December 4, 2001, Ms. Failla and Human

tion by the Tulane Hospital Interim Chief Financial

Officer (CFO), Brian Lee, and outside counsel. (Plaintiff's

Exhibit 8, Lee’s Dep. at 23-29).

On December 12, 2001, Plaintiff requested reconsid-

eration of her discharge by writing CFO Lee. (Defendant’s

Exhibit X). In her letter to Mr. Lee, Plaintiff states in part

that “[mly immediate supervisor’s reason for termination

was personal in that she thought we were not getting

along together ... My main concern and evaluation is that

assigning positions to [employees at Lakeside Hospital

where she previously worked].” (/d.). Plaintiff makes no

specific mention of discrimination or retaliation.

On February 14, 2002, Mr. Lee wrote Plaintiff advis-

ing her that:

I have received your Formal Letter of Grievance

and attached documentation. Based upon the re-

view of these documents and internal investiga-

tions, it has been determined that your termination

was justified and will not be overturned.

(Defendant’s Exhibit Y).

On February 18, 2002, Plaintiff wrote to Mr. Lee

requesting additional review. (Defendant's Exhibit Z). On

or about March 11, 2002, Plaintiff made a written appeal

to Tulane’s President and Chief Executive Officer, Jim

Montgomery. (Plaintiff's Exhibit 45). On April 4, 2002, Mr.

App. 36

Montgomery informed Plaintiff that he found no suppor-

tive evidence to overturn the decision to terminate her.

(Defendant’s Exhibit AA).

Following her termination, Plaintiff went to the

Equal Employment Opportunity Commission (EEOC),

spoke to someone there and filled out a questionnaire.

But Plaintiff did not sign or file a charge with the EEOC,

because after her interview with the EEOC representa-

tive, he told Plaintiff “he wasn’t sure if there was eny-

thing they could do for [her)” and because Plaintiff “never

heard anything from him,” she understood that to mean

that the EEOC could do “nothing” for her. (Dutton Dep. at

145-49).

Defendant concedes that Plaintiff subsequently filed a

charge with the Department of Labor, and Defendant

submits that “[a)fter a DOL associate investigator made a

determination that an FMLA violation had occurred, the

matter was submitted to the DOL management for review

and nothing more was done by the DOL.” (Defendant’s

Memo. at 12).”

On July 22, 2003, Piaintiff filed this lawsuit against

Defendant, asserting claims under the Americans with

Disabilities Act (ADA), 42 U.S.C. § 12101 et seg., the

Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et

seq., and unspecified laws of Louisiana. In her Complaint,

" In her exhibits attached to her Memorandum in Opposition to

Defendant's Motion for Summary Judgment, Plaintiff has included a

copy of the DOL investigative report. (Plaintiff's Exhibit 62). However,

in another Minute Entry issued simultaneously with this Minute Entry,

the court granted defendant's Motion to Strike this Exhibit as untimely

listed as a Trial Exhibit. (See Minute Entry, Doc. No. 62; see also fn. 21,

infra).

App. 37

Plaintiff specifically claims that Defendant intentionally

(1) refusing to restore Plaintiff to the same or

equivalent position when she returned from

her first FMLA leave in August 2001;

(2) discharging Plaintiff from her employment

without just cause less than two months af-

ter returning from her second FMLA leave

in October 2001 and due te Defendant's

“perception” that Plaintiff suffered from a

“disability” that would cause future ab-

(Complaint, { 14).

In its Motion for Summary Judgment, Defendant

seeks dismissal of all of Plaintiff’s claims. In her Cross-

Motion for Summary Judgment, Plaintiff seeks partial

judgment on two elements of her FMLA claim, “namely

whether Dutton’s leaves are protected under the FMLA

and whether Dutton suffered adverse action in proximity

to returning to work from those leaves.” (Plaintiff's Reply

to Defendant's Opp. at 3).

L.___Legal Analysis

A. Plaintiff's ADA Claim

(1) Plaintiff filed a charge with the EEOC

and her ADA claim is now untimely.

“Under the ADA, a plaintiff must file a charge of

discrimination [with the EEOC] within 300 days of the

alleged discriminatory act.” Ramirez v. City of San Antonio,

312 F.3d 178, 181 (5th Cir. 2002) citing 42 U.S.C. § 12117

(incorporating 42 U.S.C. § 2000e-S(e)). The limitations

App. 38

period on an employment discrimination claim “begins to

run from the time the complainant knows or reasonably

should have known that the challenged act occurred.”

Ramirez, 312 F.3d at 181 (citation omitted).

The limitations period in this case began when Defen-

dant terminated Plaintiff’s employment on December 4,

2001. Plaintiff does not dispute that she did not file a

charge with the EEOC. However, Plaintiff argues that the

limitations for filing her EEOC charge should be tolled

“because of the EEOC’s inaction.” (Plaintiff’s Opp. at 30).

In her Opposition Memorandum, Plaintiff maintains

that:

she went to the EEOC and filled out a question-

naire form regarding her allegations within the

300 days of her termination. Once the form was

completed, Dutton met with an EEOC investiga-

tor. The investigator informed Dutton there was

nothing they could do because she did not have a

disability and that [ ] the supervisor of the gov-

ernmental collections division was also an Afri-

can American female. Dutton was not represented

by legal counsel at the time and took the investi-

gator’s word.

(Plaintiff’s Opp. at 31, citing her Dep. at 145) (emphasis

added).

However, in her deposition, Plaintiff admitted that she

did visit an attorney prior to going to the EEOC, and he

advised her to go to the EEOC as her first step. (Plaintiff’s

Dep. at 243). Further, in her deposition, Plaintiff testified

that the EEOC representative did not “confirm” that the

EEOC could not help her, but she since Plaintiff “never

App. 39

heard from him, (she) took that to mean nothing.” (Id. at

149).

Although the burden is on Plaintiff to demonstrate a

factual basis to toll the limitations period, based on the

little information Plaintiff provided in her deposition, the

court “cannot say that the EEOC affirmatively misled

fher] about the nature of [her] rights.” Ramirez, 312 F.3d

at 185. And to date, Plaintiff has not filed an EEOC

charge. Thus, the court concludes that Plaintiff has failed

to meet her burden of showing that equitable tolling

applies in her case, and Defendant’s motion for summary

judgment should be granted on the ground that Plaintiff’s

ADA claim was untimely filed.

(2) Even if Plaintiffs ADA claim is prop-

erly before this court, it has no merit.

Under the ADA, the term “disability” means:

(1) a physical or mental impairment that sub-

stantially limits one or more of the major

life activities of an individual;

(2) arecord of such an impairment; or

(3) being regarded as having such an impair-

ment.

42 U.S.C. § 12102(2)(A-C).

Here, Plaintiff’s ADA claims falls under the “regarded

as” category. An individual, like Plaintiff, who is not in fact

disabled may have a viable claim that she was “regarded

as” disabled if: (1) she has no impairment at all but is

regarded by the employer as having a “substantially

limiting” impairment; or (2) she has an impairment which

App. 40

is not substantially limiting but which the employer

perceives as constituting a “substantially limiting” im-

pairment. Pegram v. Honeywell, Inc., 361 F.3d 272, 287

(5th Cir. 2004).

To survive summary judgment, Plaintiff must show

that Defendant regarded her impairment (whether imag-

ined or real) as being “substantially limiting,” i.e., foreclos-

ing her ability to perform “a class of jobs or a broad range

of jobs.” Id. The inability to perform a single, particular job

does not constitute a substantial limitation. Id., see also

Dupre v. Charter Behavioral Health Systems, Inc., 242

F.3d 610, 616 (5th Cir. 2001) (even if employer thought

that employee's condition would cause her to be absent,

there was no evidence that employer thought employee

was unable to perform other jobs).

Here, the record shows no evidence upon which a

reasonable trier of fact could conclude that Tulane Hospi-

tal regarded Plaintiff as disabled, because Plaintiff has

presented no evidence that Tulane regarded her as having

an actual or imagined impairment that substantially

limited her ability to perform the particular job she had,

much less work in a whole class or broad range of jobs. Jd.

It is undisputed that Tulane Hospital knew that

Plaintiff had taken leave for a gynecological procedure in

June 2001, and that Plaintiff had a short work absence for

another medical procedure in October 2001. In a letter

written to Tulane in support of Plaintiff’s June 2001

request for medical leave, Plaintiff's doctor stated that

after some five weeks of recovery, Plaintiff would be able to

return to work with no restrictions. (Defendant's Ex. K,

Human Resources File, containing Dr. Bellina’s letter

dated June 13, 2001).

App. 41

Further, in her deposition, Plaintiff admitted that: she

had not been diagnosed with a disability while working for

Tulane; she did not take a leave of absence in connection

with any disability; she never requested an accommoda-

tion from Tulane in connection with a disability; and she

never told anyone at Tulane that she had a disability.

(Plaintiff’s Dep. at 79-80).

Plaintiff has simply failed to create a genuine issue of

fact as to whether Tulane terminated her because Tulane

regarded her as having an impairment, much less, a sub-

stantially limiting one. Thus, Tulane is entitled to summary

judgment dismissing Plaintiff's “regarded as” ADA claim.

B._Plaintiff’s FMLA Claims

in her Complaint, Plaintiff asserts two retaliation

claims under the FMLA:

(1) Defendant refused to restore Plaintiff to the

same or equivalent position upon her return

from her first FMLA leave in August 2001;

and

(2) Defendant discharged Plaintiff from her

employment without just cause less than

two months after returning from her second

FMLA leave in October 2001.

(Complaint at ¥ 14).

In Chafin v. John H. Carter., Inc., 179 F.3d 316 (5th

Cir. 1999), the Fifth Circuit summarized the rights of an

employee under the FMLA and the corresponding obliga-

tions of an employer:

The FMLA requires covered employers to provide

up to 12 weeks of unpaid leave to any eligible

App. 42

employee who suffers from “a serious health con-

dition that makes the employee unable to per-

form the functions of the position of such

employee.” After a qualifying absence, the em-

ployer must restore the employee to the same po-

sition or a position comparable to that held by

the employee before the leave. An employer may

not “interfere with, restrain, or deny the exercise

of ... any right provided under the FMLA. Thus,

employers have a prescriptive obligation under

the FMLA -— they must grant employees substan-

tive rights guaranteed by the FMLA — and they

have a proscriptive obligation — they may not pe-

nalize employees for exercising these rights.

Id. at 319.

When direct evidence of discrimination is lacking, as

is the case here, “the McDonnell Dougl«s’ organizational

framework applies to claims that an employee was penal-

ized for exercising rights guaranteed by the FMLA.” Id.

The three-part burden-shifting scheme places the onus on

the plaintiff alleging an adverse employment action to first

establish a prima facie case of discrimination that:

(1) she engaged in a protected activity;

(2) the employer committed an adverse em-

ployment action (or retaliation) against her;

and

(3) there is a casual connection between the

protected activity and the adverse employ-

ment action.

Id.

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

App. 43

Once the plaintiff makes this preliminary showing,

the employer must articulate a legitimate, nondiscrimina-

tory reason for the adverse employment action. If the

employer carries this burden of production, the presump-

tion raised by the prima facie case is rebutted. Id. at 319-

20.

Once the employer produces sufficient evidence to

support a nondiscriminatory explanation for its decision,

the plaintiff must prove by a preponderance of the evi-

dence that the legitimate reasons offered by the defendant

were not its true reasons, but were a pretext for discrimi-

nation. Reeves v. Sanderson Plumbing Products, Inc., 530

U.S. 133, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000);

Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757,

768 (5th Cir. 2001).

For purposes of its motion for summary judgement,

Tulane does not dispute that Plaintiff engaged in “pro-

tected activity” when: (1) Plaintiff took a designated FMLA

leave from June 20, 2001 through August 20, 2001; and (2)

took undesignated leave from work for a one-day outpa-

tient procedure from Monday, October 15, 2001 through

App. 44

Monday, October 22, 2001. (Defendant's Supporting Memo.

at 19).’

Second Prong: Did Plaintiff an adverse

employment oction? “Yes.”

Under Fifth Circuit jurisprudence, only “ultimate

employment decisions” such as hiring, granting leave,

discharging, promoting and compensating, satisfy the

“adverse employment action” element of a prima facie case

of retaliation. Hunt v. Rapides Healthcare System, LLC,

277 F.3d 757, 769 (Sth Cir. 2001). Here, it is undisputed

that Plaintiff received an adverse employment action

when she was terminated from her employment at Tulane

on December 4, 2001.

In her Complaint, Plaintiff claims that she also

suffered an adverse employment action, when she re-

turned from her first FMLA leave on or about August 21,

2001, because Defendant refused to restore her to the

* The court notes that in opposition to Plaintiff's cross-motion for

summary judgment, Tulane argues that:

Dutton's absence from work from October 15, 2001 through

October 22, 2001 was not covered by the FMLA. Although

Tulane Hospital allowed Dutton to be absent from work,

Dutton did not give notice that her leave for a one-day out-

produced documentation showing that she provided FMLA

notice for her October 2001 absence, while she did provide

notice for the earlier unrelated \eave.

(Defendant's Opposition at 3-4).

However, because Defendant does not dispute (for purposes of its

motion for summary judgment) that Plaintiff engaged in “protected

activity” when she took the undesignated leave in October 2001, the

court need not decide whether or not this “undesignated leave” was in

fact “FMLA leave”.

App. 45

same or equivalent position. However, the court rejects

this claim because, in her deposition, Plaintiff admits that

after her leave, she returned to her position of non-

governmental supervisor (or “business service supervisor”)

with the same pay, same benefits and in the same depert-

ment. (Plaintiff’s Dep. at 113-14).

Plaintiff also argues in her opposition memorandum

that she “suffered adverse employment action August 21,

2001, the day she returned from the first FMLA leave,

when she received the violations/performance deficiencies

and corrective action.” (Plaintiff's Opp. Memo. at 16).

However, as a matter of law, simply being written up is not

an adverse employment action. In essence, laws against

retaliation were “designed to address ultimate employ-

ment decisions, not to address every decision made by

employers that arguably might have some tangential

effect upon those ultimate decisions.” Mattern v. Eastman

Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997) (citation

omitted).

Thus, tne court finds that Plaintiff’s termination (on

December 4, 2001) is the only adverse employment action

she suffered.

The causal link required by the third prong of the

prima facie case does not rise to the level of a “but for”

standard. Gee v. Principi, 289 F.3d 342, 345 (5th Cir.

2002). The plaintiff “need not prove that her protected

activity was the sole factor motivating the employer’s

App. 46

challenged decision in order to establish the ‘causal link’

element of a prima facie case.” Id. (citation omitted).

Further, “[cllose timing between an employee's pro-

tected activity and an adverse action against [her] may

provide the ‘causal connection’ required to make out a

prima facie case of retaliation.” Evans v. City of Houston,

246 F.3d 344, 354 (5th Cir. 2001) (citation omitted). But

time lapse, while a part of the court’s analysis, is not in

itself conclusive of the court’s determination of causal

connection between a protected activity and an adverse

employment action. Shirley v. Chrylser First, Inc., 970 F.2d

39, 44 (5th Cir. 1992).

Here, Plaintiff was terminated on December 4, 2001,

some 3 1/2 months after she returned to work from FMLA

leave on or about August 21, 2001, and approximately 6

weeks after returning to work from the five days Plaintiff

took off (from undesignated FMLA leave) in October 2001.

Thus, at first blush, the temporal proximity between

Plaintiff’s protected leave and her termination infers a

causal connection.

However, upon closer scrutiny, the court finds that the

sole fact that Plaintiff was fired months after her first

leave and then weeks after her second leave, does not

support a retaliatory motive for two reasons. First, before

Plaintiff took her FMLA leave in June 2001, she had

received the lowest performance score of any of the super-

visors evaluated by Ms. Failla (Failla’s Dep. at 178).

Evidence that an employer had been concerned about a

problem before the employee engaged in protected activity

underscores the significance of the temporal connection.

App. 47

Smith v. Allen Health Systems, Inc., 302 F.3d 827, 834 (8th

Cir. 2002).

Second, the relation between the timing of Plaintiff's

designated FMLA leave (from June 20, 2001-August 29,

2001) and her termination is not mere coincidence, but

actually has a causal explanation that hurts, rather than

helps Plaintiff’s case. It was during her leave (from June

2001 through August 2001) that contract employees from

Advanced Receivables Strategy, Inc. (Ms. Mirck and Mr.

Ianni) notified Ms. Failla about numerous deficiencies and

issues the [sic] discovered regarding Plaintiff's job per-

formance. “This gives an explanation for the temporal

proximity other than a retaliatory motive of the employer.”

Id."

In deciding whether a plaintiff has established an

inference of a causal connection, a court should also

consider the identity of the final decisionmaker. See, e.g.,

Mato v. Baldauf, 267 F.3d 444, 450 (Sth Cir. 2001); Long v.

Eastfield College, 88 F.3d 30, 306-07 (5th Cir. 1996).

” In Smith, the employer, a memorial foundation for a hospital,

discharged a long-term employee two weeks after she took FMLA leave.

Smith, 302 F.3d at 830. The employee's job duties included promptly

acknowledging contributions to the Foundation with a receipt and

thank yuu letter. Jd. Before going on leave, the employer counseled the

employee that donors had complained about not receiving acknowledg-

ments. Id. at 830-31. While the employee was on leave, undone work

dating back as much as two months was discovered in her office. /d at

831. About two weeks after the employee was on leave, she was called

in for a meeting and her employment was terminated for failure to send

out receipts. Jd. The Bighth Circuit affirmed summary judgment

dismissal, finding that the employee failed to present sufficient

evidence of pretext even though the employee was fired at about the

same time she took family leave.

” See fn. 10, supra.

App. 48

Circumstantial evidence of retaliation may include

proof that the person whose practices were challenged by

an employee was the same persoa who decided to take an

adverse employment action against that employee. Fieros

v. Texas Dept. of Health, 274 F.3d 187, 193-96 (5th Cir.

2001). That is not the case here, because the person whose

practices are challenged by Plaintiff - Mary Failla -

recommended Plaintiff's termination, but she was not the

In Mato and Long, the Fifth Circuit expressly held

that if a plaintiff’s supervisor appeared to have retaliatory

animus towards the Plaintiff and recommended to the

final decisionmaker that the Plaintiff be fired, the supervi-

sor’s retaliatory animus would not be imputed to the final

decisionmaker if the employer conducted an independent

investigation before reaching a decision. See Mato, 267

F.3d at 450; Long, 88 F.3d at 306-07.

Here, Failla recommended that Plaintiff be termi-

nated and pursuant to instruction from Lisa Talbot of

Tulane Hospital's Human Resources department, she

documented this recommendation in Plaintiff’s personnel

file. Further, Ms. Talbot, Tulane Hospital’s Chief Financial

Officer (Lee), and Tulane’s counsel, conducted an inde-

pendent review and investigation of whether or not Plair-

tiff should be terminated.

But even if Ms. Failla had a retaliatory animus

towards Plaintiff (which Plaintiff has not shown except

through her own self-serving generalized testimony

stating her subjective belief that Ms. Failla retaliated

against her),” Ms. Failla’s animus may not be imputed to

* See Plaintiff's Dep. at 140.

App. 49

Defendant, because Plaintiff has made no showing that

Ms. Failla had influence or leverage over HR Specialist

Ms. Talbot, CFO Lee or Defendant's counsel (who were all

involved in the decision to terminate Plaintiff). Indeed, at

her deposition, Plaintiff denied that either Ms. Talbot or

Mr. Lee retaliated against her when she was terminated.

(Plaintiff’s Dep. at 139-40). Plaintiff also testified at her

tives (Ms. Mirck and Mr. Ianni), who e-mailed Ms. Failla

about Plaintiff’s job deficiencies that they discovered

while filling in for Plaintiff while she was out on leave

from June 20, 2001 to August 20, 2001, were retaliating

against her for taking medical leave.” (Plaintiff’s Dep. at

125-26).

Thus, the court concludes that Plaintiff has failed to

present a genuine issue of material fact regarding the

necessary causal link. As such, Plaintiff has failed to

establish her prima facie case and summary judgment is

appropriate.

Assuming Plaintiff could establish a prima facie case

of retaliation, the burden in the adversarial three-step

framework of McDonnell Douglas shifts to Tulane to state

legitimate, non-retaliatory reasons for terminating Plain-

tiff. According to the summary judgment record, Plaintiff

" As previonsly discussed, Ms. Failla’s August 20, 2001 written

warning to Pizintiff mirrored the deficiencies discovered by the ARS

personnel. (See pp. 5-6, supra).

App. 50

was terminated because she failed to meet expectations

and for poor performance.

In April 2001, before Plaintiff even requested FMLA

leave, she received a “barely satisfactory” job evaluation.

(Failla Dep. at 178). In May 2001, major issues (involving

problems with collection follow-up) which stemmed (at

least in part) from Plaintiff’s inadequate job performance

as a monitoring supervisor were identified in an internal

audit. While on FMLA leave (June — August 2001), numer-

ous job deficiencies were discovered by third-party con-

tractual representatives who were filling in for Plaintiff.

After Plaintiff returned from this first leave, she was

counseled for numerous deficiencies and was given a

corrective action plan. Despite such counseling, Defendant

documented continuing problems with Plaintiff’s job

performance, and Defendant ultimately made the decision

to terminate Plaintiff’s employment.

The court finds that Defendant’s reasons for firing

Plaintiff, if believed, would permit the trier of fact to

conclude that the decision to fire Plaintiff was legitimate

and not retaliatory.“ Thus, Defendant has carried the

burden of production, and the presumption raised by the

prima facie case is rebutted. Plaintiff was then obliged to

present sufficient evidence that (1) creates a question of

fact as to whether Defendant’s reasons are pretextual and

(2) creates a reasonable inference that Defendant acted in

“ Defendant need not persuade the court that it was actually

motivated by its proffered reasons. Williams v. Time Warner Operation,

Inc., 98 F.3d 179 (Sth Cir. 1996). Rather, Defendant's burden at this

stage is one of production cnly, not persuasion, involving no credibility

assessments. Reeves, 530 U.S. 133, 142 (2000), citing St. Mary's Honor

Ctr. v. Hicks, 509 U.S. 602, 509 (1993).

App. 51

retaliation. Hunt v. Rapides Healthcare System, LLC, 277

F.3d 757, 768 (Sth Cir. 2001).

(3) Plaintiff has failed to raise a genuine

issue of material fact that Defendant's

reasons for terminating her were a pre-

text for retaliation.

Plaintiff makes several arguments that Defendant's

“prior to my leave, my evaluation was not one of dissatis-

faction.” (Plaintiff's Dep. at 140; Plaintiff's Performance

Evaluations of March 2000 and April 2001, Exhibits 12 &

15). Plaintiff also points out that in September and Octo

ber 2000, her division won a collection contest. (Plaintiff's

Opp. at 3, citing Plaintiff’s Exhibit 13). Plaintiff also

wrote several memo's to Mary Failla rebutting the list of

deficiencies and corrective action presented to Plaintiff

when she returned from leave. (Plaintiff's Exhibit 27 &

31).

Further, Plaintiff maintains that any counseling she

received regariing her file tracks was improper because

her file tracks “ballooned” (from less than 100 accounts to

more than 1,000 accounts) while she was on leave in the

summer of 2001. (Plaintiff's Memo of 8/27/01, Plaintiff's

Exhibit 29 & Plaintiff's Memo of 10/3/01, Doc. No. 30).

Plaintiff also points out that on 9/10/01, she had 1484

accounts, but by 9/28/01, she had worked the number of

accounts down to 735. (Plaintiff's Opp. at 9, & Plaintiff's

Exhibit 59, p. 6).

Plaintiff also maintains that when she took her second

medical leave fram October 15-22, 2001, again no one

worked her file tracks and they ballooned to 986 accounts

App. 52

by the time she returned.” (Plaintiff’s Opp. at 9, and

Plaintiff's Exhibit 59 at pp. 6-7). Finally, Plaintiff argues,

without evidentiery support, that by the time she was

fired, she had reduced her file tracks to under 300."

(Plaintiff's Opp. at 10).

Viewing the summary judgment evidence in the light

most favorable to Plaintiff, the court finds that Plaintiff

has created an issue of fact, albeit weak, as to whether

Defendant's reasons were untrue. But as the court next

discusses, Plaintiff has woefully failed to present compe-

tent summary judgment evidence that creates a reason-

able inference that Defendant fired her in retaliation for

her taking FMLA leave.” Thus, Plaintiff cannot survive

summary judgment.”

“ Plaintiff concedes that Mary Failla e-mailed her on November 1,

2002 and November 9, 2001, asking when her file track (which then

had over 1,000 accounts) would be cleaned up. (Plaintiff's Opp. at 10, &

Plaintiff's Exhibits 32 & 33). Defendant maintains that many of the

unworked accounts reached Plaintiff's file tracks during periods when

she was not on leave, and that many of the accounts had never been

worked by e collector. (Defendant's Reply at 8, & Defendant's Exhibit

Vv).

" While Plaintiff cites Mary Failla’s deposition, Ex. 6 at 291-92, in

support of this argument, the cited testimony does not support Plain-

tiffs statement that she had reduced the accounts to 300, by the time

she was fired. The court no duty to search the record for triable

. Pipeline Co., 136 F.3d 455, 458 (6th Cir.

1998). Rather, “[t)he party opposing summary judgment is required to

i

|

oF

Defendant's explanation for terminating Plaintiff. Sandstad v. CB

Richard Ellis, Inc., 309 F.3d 893, 899 (Sth Cir. 2002).

“ “Summary judgment is appropriate in any case ‘where critical

evidence is so weak or tenuous on an essential fact that it could not

(Continued on following page)

App. 53

The Fifth Circuit has “repeatedly and emphatically

stated that anti-discrimination laws ‘are not vehicles for

judicial second-guessing of business decisions.’” Mato v.

Baldauf, 267 F.3d 444, 452 (5th Cir. 2001) (citation omit-

ted). And “[t)he existence of competing evidence about the

objective correctness of a fact underlying a defendant’s

proffered explanation does not in itself make reasonable

an inference that the defendant was not truly motivated

by its proffered justification.” Little v. Republic Refining

Co., 924 F.2d 93, 97 (5th Cor. [sic] 1991). “[E]ven an incor-

rect belief that an employee's performance is inadequate

constitutes a legitimate, non-discriminatory reason.” Jd.

So, the issue at stake in an employment discrimina-

tion or retaliation case is not whether the employer's

decision is the correct decision, or a fair decision, or the

best decision; rather the issue is whether the employer

had a discriminatory or retaliatory motive. Deines v. Texas

Dep't of Protection and regulatory Services, 164 F.3d 279,

282 (5th Cir. 1999).

Here, even if Defendant’s reasons (failure to meet

expectations and poor performance) were not the true

reasons for terminating Plaintiff, she must still produce

substantial probative evidence that the real reason for her

termination was retaliation for taking FMLA leave.

Chafin, 179 F.3d at 320. She has not done so at this

summary judgment juncture.

As previously discussed, the temporal proximity

between Plaintiff’s medical leave and termination does

support a judgment in favor of the nonmovant.’” Little v. Liquid Air

Corp., 37 F.3d 1069, 1075-76 (5th Cir. 1994) (citation omitted).

App. 54

not support an inference of retaliatory motive. (See discus-

sion supra, pip. 20-21).

Further, the only evidence that Defendant retaliated

against Plaintiff for taking FMLA leave is Plaintiff's own

self-serving generalized testimony stating her subjective

belief that her supervisor, Mary Failla, retaliated against

her. (Plaintiff's Dep. at 140). But, again as previously

discussed, even if Ms. Failla had a retaliatory animus

towards Plaintiff, such animus cannot be imputed to

Defendant because the decision to terminate Plaintiff was

independently reviewed by Defendant's Human Resources

Specialist, its Chief Financial Officer and its legal counsel.

(See discussion supra, pp. 21-23).

Further, in her deposition, Plaintiff could point to no

employee at Tulane who had been fired, demoted or given

a pay cut for taking FMLA leave. (Plaintiff's Dep. at 141-

43). And while Plaintiff attaches to her opposition, the

Affidavits of individuals who claim that Ms. Failla did not

like employees taking FMLA leave, there are no allega-

tions in these affidavits that those individuals were fired

or otherwise punished for taking FMLA leave. (See Affida-

vits of Karen Erin and Rose Kline, Plaintiff's Exhibits 63

& 64). Further, these Affidavits set forth irrelevant and

immaterial allegations, conclusions, state opinions and

contain hearsay, and thus they constitute incompetent

summary judgment.” Ragas, 136 F.3d at 458.

App. 55

Similarly, Plaintiff attaches to her opposition her own

Affidavit, which contains hearsay, conclusory allegations

and speculation regarding her employment at Tulane and

another employee who took FMLA leave. (Plaintiff's

Exhibit 65). As such, it is incompetent summary judgment

evidence.” Leonard v. Dixie Well Service & Supply, Inc.,

828 F.2d 291, 295 (Sth Cir. 1987).

” The court also strikes Plaintiff's Affidavit to the extent that it

impeaches her prior deposition testimony See also fn. £, supra.

” Plaintiff included in her Exhibits attached to her opposition, a

Department of Labor internal narrative report regarding the FMLA

H

i

sf

1

ith

i

:

i

:

|

if

i

in

conclusion that Defendant is entitled to summary judgment dismissal

App. 56

Accordingly,

IT IS ORDERED that Defendant's “Motion for

Summary Judgment” be and is hereby GRANTED,

dismissing all of Plaintiff's claims.

IT IS FURTHER ORDERED that Plaintiff's

“Cross-Motion for Partial Summary Judgment” be

and is hereby DISMISSED.

/af A.J. McNamara

App. 57

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

AMANDA DUTTON * CIVIL ACTION

VERSUS * NO: 03-2084

UNIVERSITY HEALTHCARE * SECTION: “D"(4)

SYSTEM, L.L.C., ET AL

JUDGMENT

(Filed May 12, 2004)

For reasons set forth in this court’s Minute Entry of

May 12, 2004 (Doc. No. 63), wherein the court granted the

Motion for Summary Judgment filed by Defendant,

IT IS ORDERED, ADJUDGED AND DECREED

that Judgment be entered herein in favor [sic] Defendant,

University Healthcare System, L.L.C. d/b/a Tulane Uni-

versity Hospital and Clinic, and against Plaintiff, Amanda

Dutton, dismissing all of Plaintiff’s claims, with prejudice

and at Plaintiff's costs.

New Orleans, Louisiana, this 12th day of May __, 2004.

/s/

A.J. McNAMARA

UNITED STATES

DISTRICT JUDGE

App. 58

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF LOUISIANA

EXHIBIT 65

AFFIDAViT OF ROSE KLEIN

The affiant, Rose Klein being duly sworn upon oath,

deposes and states as follows:

1. Iam currently employed as a biller with BEA Medical

Billing, located at 13222 Highway 90, Ste B, Boutte,

Louisiana. I have been employed there for the pest

two months. The phone number is 985/785-2221.

2. From September of 1999 through August of 2003, I

worked for Tulane University Hospital and Clinic (Tu-

lane). I began my employment as the Admitting Man-

ager, progressing to the Assistant Director of

Admitting.

3. As the Assistant Director of Admitting, my duties

included all points of registration for the hospital and

clinics and the emergency room. During the last ap

proximately two years of my employment with Tulane,

I reported directly to Mary Failla, the Director of Tu-

lane’s Business Services Department.

4. In 2001, I was diagnosed with severe arthritis in the

knees. The problem became so bad that I had to use

the assirtance of a cane in order to walk. When I was

diagnosud, my doctor told me that I would eventually

need a knee replacement and would need to be off

work for 6-8 weeks. In the mean time, the doctor gave

me shots to alleviate the pain. On one occasion my

doctor filled out a medical certification form needed

for Tulane’s Family Medical Leave forms.

5. linformed Mary Failla when I found out I was in need

of knee replacement surgery. Mary told me it was not

a good time for me to be off work because she needed

App. 59

me in the department too badly. Mary asked me if I

could treat my knees in a different fashion.

There were times in meetings when they or others in

the meeting would ask me about my knees. I would

reply that I needed to have knee replacement surgery

but my boss would not let me take the time off. In one

Suzanne Haggard, and Pete Olivier. Attendees in

these meetings would refer to Mary as a slave driver. !

went to Mary on at least three occasions during the

two year period I reported to her to talk about when I

could take the time off. Each time Mary told it was not

a good time because I was needed at work. Each time,

I accommodated Mary's request.

On one occasion, I had the opportunity to talk with

Lisa Talbot in Human Resources. | asked Lisa ques-

tions about the Family Medical Leave Act. I asked her

about the Family Medica] Leave provision regarding

key employees. I also told Lisa that I needed knee re-

went on leave because of the key employee

Talbot advised me to talk to Mary about taking the

leave but at no time did Talbot tell me I had the right

to take FMLA leave. At the time, I earned approxi-

mately $60,000 per year.

On or about June or July of 2003, | received a glowing

performance appraisal and a wage increase of $1.50

App. 60

FURTHER AFFIANT SAYETH NAUGHT.

Dated, this 12th day of

April, 2004.

/s/ Rose Klein

Rose Klein

Witnessed by Tracie Jackson, Notary Public thie 12th day

of April 2004.

/s/ Tracie Jackson

Tracie Jackson, Esq.

AMANDA DUTTON,

Petitioner

UNIVERSITY HOSPITAL CARE SYSTEMS, L.L.c D/B/A

TULANE ITY HOSPITAL AND CLINIC,

Respondent

BRIEF IN OPPOSITION

CHAFFE McCaw, LLP Counsel of Record

1100 Street Rosert B. » Hl, APLC

2300 Energy Centre 757 St. Charles Avenue, Suite 302

New Orleans, LA 70163 New Orleans, LA 70130

(504) 585-7000 (504) 301-1479

Attorneys Sor Respondent

SS ——_——

COunSsei PRESS

(909) 274-3321 + (800) 339-4859

CC ———e

i

QUESTIONS PRESENTED FOR REVIEW

Whether the district court abused its discretion in

disregarding an affidavit submitted in opposition to a

summary-judgment motion on grounds that it was

untimely, irrelevant, and immaterial.

Whether the district court properly granted sumiaary

judgment dismissing petitioner's claims under the Family

and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601,

et seq., and the Americans With Disabilities Act

(“ADA”), 42 U.S.C. § 12101, et seg.

LIST OF INTERESTED PERSONS AND

RULE 29.6 NOTATION

The parties to the proceedings below were petitioner-

plaintiff, Amanda Dutton, and respondent-defendant,

University Healthcare System, L.C., doing business as Tulane

University Hospital and Clinic. University Healthcare

System, L.C., is a joint venture between The Administrators

of the Tulane University Educational Fund and Columbia/

HCA of New Orleans, Inc.

Galen Holdco, LLC owns 100% of the stock of

Columbia/HCA of New Orleans, Inc. Healthtrust, Inc. -

The Hospital Company owns 100% of the membership

interest of Galen Holdco, LLC. HCA Inc., a publicly traded

company, owns 100% of the common stock of Healthtrust,

Inc. — The Hospital Company.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ......

LIST OF INTERESTED PERSONS AND

FS SPUN POETS oc cccvevosccecdceoves

PERI STEED: Adulccecatsdcbvedcheuee

TABLE OF CITED AUTHORITIES ............

STATEMENT OF THE CASE ..........-e000--

REASONS FOR DENYING THE PETITION .....

I The District Court Did Not Abuse Its

Discretion in Refusing to Consider an

Untimely, Irrelevant, and Immaterial Affidavit

in Opposition to the Motion for Summary

CN i ink bd dweddd bbe oe ceticcn wae

Il. The District Court Properly Granted Summary

Judgment Dismissing Petitioner’s FMLA and

PTE MAE oh ted cho vebes «> cadendceees

SITS. onc btecepncvornctasdenesseons

Page

iv

TABLE OF CITED AUTHORITIES

Cases:

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)

Crawford v. Formosa Plastics Corp., La., 234 F.3d

Ca as BOE ab Fe Renin d ede sbekwadss eh

Delta Airlines, Inc. v. August, 450 U.S. 346 en

*@eeeseeeeeeaeeeewaewneeeseeeeeeweeeaeeeeweeaeeweeweeee ee

Gee v. Principi, 289 F.3d 342 (5® Cir. 2002) ......

Keeler v. Putnam Fiduciary Trust Co., 238 F.3d 5

CG Ee canes cotanevaeatcevensmaiee

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

Bia Gc SPOUTS hia kb vt cn badenddvedvers

Matthews v. Independence Blue Cross, 2002

WL 7930 (E.D. Pa. Dec. 28,2001) ...........

Reeves v. Sanderson Plumbing Products, Inc.,

PEE Ch COE bic cdkswddnangeatecaudeys

Smith v. Allen Health Sys., Inc., 302 F.3d 827

Cs AO 65 0 Ve ded Meeu Nice bee rnsoeeus

Walton v. Bisco Indus., Inc., 119 F.3d 368 (5® Cir

ds PET (eee edese dived eeevedetstaws

Page

v

Cited Authorities

Page

Statutes:

Be Gee OS BO UO on ckcccctécvtceevccess i

ee ae OOOO. cncdbcccécubaeseéacs i

GP Geis © GEE. vo cccdescoesccecucoseces 1,9, 11

Rules:

POGUE UN OO pbc csbcnes deed bccucsé éimnue 5

PE UE Pde b c'edet chads cotrebacveda 6,7

PIECES EE Shivé were cecseccducdssens 5, 6,7

Pee GE CE SUED on costocaccncesoveseece ll

Treatises:

R. Stern, E. Gressman, S. Shapiro, and K. Geller,

Supreme Court Practice, 459 (8" ed. 2002) ..... ll

l

STATEMENT OF THE CASE

Respondent, University Healthcare System, L.C. d/b/a

Tulane University Hospital and Clinic (“Tulane Hospital”

or “Tulane”), adopts and incorporates by reference the

Fifth Circuit’s statement of the course of proceedings and

the undisputed facts as set forth in its unpublished opinion

below. See Dutton Appendix at 1-19. They need only be

restated briefly here.

Petitioner, Amanda Dutton, filed suit against Tulane

Hospital, her former employer, asserting claims under the

FMLA and ADA. She alleged that Tulane had discriminated

against her in violation of the FMLA by discharging her from

employment after she had returned from medical leave and

in violation of the ADA because of a “perceived disability.”

The district court rendered summary judgment in favor of

Tulane and against Dutton, dismissing all of her claims with

prejudice, and further granted Tulane’s motion for attorney’s

fees and expert costs under 42 U.S.C. § 12205, upon

concluding that Dutton’s ADA ciaim was frivolous,

unreasonable, or without foundatica.

The Fifth Circuit affirmed the district court’s judgment,

concluding that Tuiane had supported its motion for summary

judgment with competent evidence of legitimate business

reasons for terminating Dutton because she had performed

her work poorly and had failed to meet her supervisor’s work

expectations. The court of appeals stated that Dutton had

not marshaled “sufficient objective evidence to allow for a

reasonable inference that Tulane was motivated by

retaliation,” because she had exercised her rights under the

FMLA and that “plaintiff's deposition testimony acts to suck

the remaining air propelling her claim, completely out of her

2

sails.” See Dutton Appendix at 14-15. The Fifth Circuit

likewise concluded that Dutton had failed to establish a

“disability” under the ADA and had produced no evidence

to raise a genuine issue of material fact that Tulane had ever

“regarded” her as disabled. /d. at 17. It affirmed the district

court’s award of attorney’s fees and awarded Tulane an

additional amount for defending against Dutton’s ADA claim

on appeal.

Tulane Hospital hired Dutton in March 1999 as a

supervisor in its Business Services Office, which collected

fees that Tulane Hospital earned by providing medical

care to patients. Dutton later became responsible for

non-governmental collections and reported to Mary Failla,

Tulane Hospital’s business-office director. Because of

problems in Dutton’s collection group, Failla hired an outside

cunsulting firm to provide two trainers to work with Dutton

and her collection staff on a daily basis in October-December

2000. Failla documented further shortcomings in Dutton’s

performance in January 200! and discussed them with her.

In April 2001, Dutton received a performance evaluation

of “2,” the lowest she received at Tulane Hospital and also

the lowest of any of the supervisors who reported to Failla.

Dutton rated herself as “does not meet” expectations in the

area of monitoring activities and work assignments for

accuracy, timeliness, and compliance with department

standards. In May 2001, financial analysts later issued an

audit report and review likewise finding deficiencies in

Dutton’s collection area. Dutton admitted that the internal

audit was correct.

From June 20, 2001, through August 20, 2001, Tulane

Hospital granted Dutton’s request for leave under the FMLA

3

for gynecological surgery. Dutton had originally requested a

shorter time period, but Tulane extended the leave fourteen

days. Failla approved the leave request. After the surgery,

Dutton’s physician advised Tulane Hospital that he expected

Dutton to completely recover and return to full activity.

Unbeknownst to Tulane, Dutton had actually worked part-

time during her FMLA leave for another employer on shifts

as a pharmacy technician, even though she would later assert

that she was unable to work.

While Dutton was absent on FMLA leave, Tulane

Hospital used the services of a contract agency. It discovered

yet more serious insufficiencies in Dutton’s job performance,

including mail anc correspondence that Dutton had received

as far back as 1999 but had never opened. Failla warned

Dutton in writing in August 2001, advising ber of 11 areas

of deficiency and informing her that future performance

issues would result in additional disciplinary actions,

including the possible termination of her employment.

From October 15 to October 22, 2001, Dutton was absent

for work with permission to undergo a single day of

outpatient diagnostic procedures. Neither Dutton nor the

hospital designated her absence as family medical leave.

On November 1, 2001, Failla reviewed Dutton’s accounts

and found that she had failed to properly supervise the

collection of over one thousand accounts within her

department's responsibility. They totaled over $556,000 in

uncollected funds. Failla asked Dutton to rectify the problem

by November 9, 2001, but she failed to do so.

On December 4, 2001, Dutton met with Failla and

Tulane’s employment-relations representative, who explained

4

to her that her employ:nent was being terminated because of

her poor work performance and failure to meet expectations.

Dutton appealed the discharge by writing to Tulane Hospital's

interim chief financial officer, who conducted his own

independent investigation and concluded that Dutton's

termination was appropriate. Dutton thereafter appealed the

decision to Tulane’s president and chief executive officer,

who also independently reviewed it and found no evidence

sufficient to overturn it. In her deposition, Dutton admitted

that Tulane’s employee-relations specialist, the CFO, and the

president/CEO, the ultimate decision makers, had not

retaliated against her for taking FMLA leave.

Dutton further presented no evidence to support her

unfounded allegation under the ADA that Tulane had

terminated her because it “perceived” or “regarded” her as

disabled and substantially limited in her ability to work at a

class of jobs or broad range of jobs. Dutton’s own doctor

had ‘aformed Tulane Hospital that she could return to work

with no restrictions after her surgery. Dutton only subjectively

believed that her supervisor Mary Failla was thinking of her

as “disabled” because she had taken brief absences from work

for medical procedures. In addition, Dutton never filed a

charge of ADA discrimination as required by law before she

filed suit.

5

REASONS FOR DENYING THE PETITION

Il. The District Court Did Not Abuse Its Discretion in

Refusing to Cunsider an Untimely, Irrelevant, and

Immaterial Affidavit in Opposition to the Motion for

Summary Judgment

Dutton first argues that “review is warranted to resolve

whether Fed. R. Civ. P. 56(e) requires the name of an affiant

be included as a witness on a witness and exhibit list in order

for the affidavit to be considered as evidence in summary

judgment proceedings.” This contention presents no issue

worthy of the Court’s review.

First, Dutton did not raise this question in the lower

courts. In her brief on appeal, Dutton conceded that the trial

judge had discretion under Fed. R. Civ. P. 16 to strike the

affidavit of Rose Kline and disregard it as summary-judgment

evidence because Dutton had failed to comply with the

Court’s case scheduling order requiring her to complete

discovery and timely list all witnesses. Dutton merely

contended on appeal that the judge had abused that discretion.

In her certiorari petition, she now claims for the first time in

this litigation that Rule 56(¢) “requires” the trial court to

consider the excluded affidavit. But she cited no such

authority in the lower courts and never presented the issue

to them for their decision. Having failed to raise and preserve

the question below, Dutton cannot now raise the issue as a

ground for this Court to grant certiorari. As this Court has

stated, a question presented in a petition for certiorari but

not raised in the Court of Appeals “is not properly before

us.” Delta Airlines, Inc. v. August, 450 U.S. 346, 362 (1981).

6

Second, even if Dutton had preserved her Rule 56(e)

argument, it is meritless. Nothing in Rule 56 prevents a

district judge from exercising discretion under Rule 16 to

control the court’s docket through a scheduling order.

Rule 16 provides that a district judge shall enter a scheduling

order and that such orders “shal! not be modified except upon

a showing of good cause and by leave of the district

judge [.]” In this case, the district court entered such an order.

See Dutton Appendix at 22-23. Nevertheless, Dutton violated

the scheduling order and attempted to offer the affidavit of

Rose Kline on her own accord and without a motion for good

cause. Id. at 24-25.

Moreover, Rule 56(e) requires an affidavit to “set forth

facts as would be admissible in evidence.” The Kline affidavit

set forth totally irrelevant and immaterial allegations,

conclusions, opinions and hearsay about Kline’s own

employment. As Dutton acknowledged in her own deposition,

she could point to no Tulane employee who had been fired,

demoted, or given a pay cut for taking FMLA leave. Dutton

herself testified that no one made any jokes about her medical

leave and that no manager or director at Tulane Hospital had

ever said any thing derogatory about it. Kline’s affidavit

therefore had no relevance or probative value. Even though

the district court also struck the Kline affidavit, the court

nonetheless considered tl. .gue and immaterial assertions

contained in it and foun« « } > be irrelevant and incompetent

summary-judgment evide: »;. See Dutton Appendix at 54.

The Fifth Circuit’s opinion likewise recognized that

unsupported allegations or affidavits or deposition testimony

are insufficient to defeat a motion for summary judgment.

Id. at 14.