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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 1031

## Text

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

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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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0141%3A1. Public record. Not legal advice.