Pringle v. Family Dollar et al, No. 1:2012cv00044 - Document 87 (S.D. Ga. 2014)
Court Description: ORDER granting 55 Motion for Summary Judgment; denying 56 Motion for Partial Summary Judgment; denying 71 request for an award of attorney's fees and costs. The Clerk is directed to enter final judgment in favor of Defendant, terminate all deadlines and motions, and close the case. Signed by Judge J. Randal Hall on 09/30/2014. (thb)
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Pringle v. Family Dollar et al Doc. 87 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION MELISSA PRINGLE, Plaintiff, CV vs. FAMILY DOLLAR STORES GEORGIA, 112-044 OF INC., Defendant. ORDER Plaintiff, that Defendant, Ms. Melissa Pringle, filed this Family Dollar Stores of Georgia, case Inc., alleging terminated her employment as a store manager because of her race and sex in violation of Title amended, 42 alleged disability Disabilities seq. U.S.C. Act VII §§ of the 2000(e) Civil et in violation ("A.D.A."), as Rights seq. , and of the amended, 29 Act of because 1964, of Americans U.S.C. § as her with 12112 et Plaintiff also brings a negligent supervision claim against Defendant under Georgia law. Before the Court are Defendant's motion for summary judgment (doc. no. 55) as to all Plaintiff's claims on the merits and on the doctrine of judicial estoppel, Plaintiff's motion for partial Dockets.Justia.com summary judgment request for (doc. no. attorneys' Plaintiff's judgment, Todd (doc. and fees and no. on her A.D.A. Federal costs Rule motion objection 74). of claim, in for Procedure responding partial the declaration of the briefs submitted by counsel, 11 to summary consideration Upon to Defendant's Civil incurred frivolous Plaintiff's (doc. 56) under allegedly Jarrett evidence, 71) no. of the Mr. record and the relevant law, the filings are resolved as set forth below. I. This case arises out BACKGROUND of the termination of Plaintiff's employment after she failed to return from an eight month medical leave of absence due to bunion-removal surgery. She then brought this suit claiming that she was fired on account of her race, and her motions alleged disability. The facts material to the sex above follow. A. Factual Background 1) Defendant Defendant is a subsidiary of Family Dollar Stores, Inc. ("Family Dollar") and is an employer as contemplated by Title VII and the A.D.A. see Am. Compl. (Barkley Decl. SI 1; Ans. to PL's Am. Compl. 5 3; SI 3.) Defendant sells items such as clothing, household goods, cosmetics, health and beauty aids, and food at discounted prices. (See Barkley Decl. SI 7.) Defendant's are organized into numerical districts, which are between stores. fifteen and thirty Districts are managed by managers, and individual (Id. SISI 10-11, 2) Ms. individual district stores managers or are managed by stores comprised of (Id. area SISI 8-9.) operations store managers. 16. ) Stacev Bales In the summer of 2008, Ms. Stacey Bales ("Bales") became the district manager responsible with nineteen other stores. for 84; Bales July 2010. Bales was Dep. at (Def.'s the 7.) Resps. ultimate for work restrictions, Wrightsville store along She supervised the store manager for each of those twenty stores, at the including Plaintiff. She to served as PL's district manager First decision maker (Pringle Dep. Interrogs. for at Plaintiff s until 17-18.) requests such as a request to work only part-time rather than full-time due to an alleged physical disability, for at Plaintiff's termination. 7, 19.) Bales (Halstead Dep., never disciplined or Ex. 50; Bales and Dep. suspended Plaintiff, and Plaintiff never lodged any complaints against Bales prior to her separation in 2010. Plaintiff's complaint, (Pringle Bales Dep. has never at 83-84.) been Aside accused of from unfair treatment in the workplace or been the subject of complaints of unfair treatment within Defendant's organization. (Bales Dep. at 230-31.) However, district manager. Plaintiff did not consider Bales to be a good (Pringle Dep. at 84.) regularly failed to answer phone calls, too demanding of her, (Id. was negative, She stated Bales believed that Bales was and had an attitude problem. at 84-85.) 3) Plaintiff Plaintiff is an African-American female. SI that 13; see Am. Compl. SI 13.) assistant store manager at Defendant (Ans. to Am. hired Defendant's Wadley, Compl. Plaintiff Georgia, as an store in the first quarter of 2005 (Pringle Dep. at 75, 78), then promoted Plaintiff to store manager about one year later and relocated her to Defendant's Wrightsville, Georgia, store. (Id. at 79-80.) She remained at the Wrighstville store until her last day of work for Defendant on June 8, 2009. a salary of (Pringle Dep. at 80.) approximately $523.00 per Plaintiff earned week when automatically terminated her employment on January 31, failure to return PL's Ex. 4) from leave. 29; Barkey Dep. The Store Manager at 30, (Barkley Decl. SI 17; employee hiring, 2010, Bales for Dep., 32) Position During Plaintiff's employment with Defendant, were responsible Defendant store managers for managing the daily operations of a store; development, discipline, supervision, and safety; and administering Defendant's policies found in the store associate handbook. (Barkley Decl. SI 11; see Pringle Dep. at 97- 99, 101 & Exs. 1-2.) Relevant to this action, store managers were responsible for administering policies for store employees. attendance and (Pringle Dep. leave of absence at 98-99 & Ex. 2.) Defendant's leave of absence policy provides: All requests for leaves of absence should be made in writing by the associate prior to the beginning of the leave. The written request should be submitted to the Store Manager (or for leaves requested by [the] Store Manager, to the District Manager). If the leave is approved, you will be conditions of the leave, informed of the terms and including the effective date and the ending date of the leave. An associate desiring an extension of his or her leave should submit a written request prior to the ending date of the absence It is your responsibility to provide the written information necessary to document the leave of absence. With proper authorization, you may be permitted to take a leave of absence up to a period of three months. This may be extended by your written request to your immediate supervisor and approval of the Human Resources Department up to an additional three months. Should a period of absence or a period of absences exceed six months, the Associate will be considered terminated . . . . Additional leave beyond six months will normally be considered on a case-by-case basis as a reasonable accommodation for qualified individuals with disabilities absent undue hardship. However, such leave must be approved by the Human Resources Department to ensure that the Company does not endure an undue hardship due to the job vacancy. (Id., Ex. 2.) If a request for a leave of absence was granted, the employee bore the responsibility to maintain communication at all times with her supervisor and Defendant. 5 (Halstead Dep. at 93.) The associate handbook also provides examples "of situations for which discipline up to and including immediate discharge may be imposed!,]" including an employee's "failure to contact supervisor when late, absent, and as required during a leave, and at the expected time of return from a leave of absence." Dep., Ex. absences, one 2.) Defendant has two forms to request (Pringle leaves of one to be used prior to going on a leave of absence and during Defendant leave [her] the leave allowed for their of absence. eligible serious (Halstead employees to take health conditions Medical Leave Act ("FMLA"). Dep. at twelve under the 28-29.) weeks of Family and (Pringle Dep., Ex. 2.) FMLA leave ran concurrently with Defendant's allowed six months of leave. (Id.) Store managers were also expected to be able to lift up to 55 pounds from floor level to above shoulder height and to meet the demands climbing, of frequent pushing, walking, putting, and standing, stooping, repetitive lifting without reasonable accommodation." (Pringle Dep. At the time, kneeling, "with at 97 & Ex. or 1.) store managers were salaried employees expected to work full-time, which was defined as 52 hours per week.1 (Barkley Decl. SI 13. ) When Plaintiff applied for the store manager position, did not notify Defendant that she had any restrictions on she her 1 In contrast, assistant store managers were compensated on an hourly basis and were eligible for overtime pay. (Barkley Decl. f 13.) ability to do the job. (Pringle Dep. at 88.) Nor did Plaintiff identify or request any accommodations with or alterations to the standard duties (Pringle Dep. and at responsibilities 92-93.) for At her deposition, a store manager. Plaintiff confirmed that she did not have any physical limitations in performing her job. (Id.) Prior to her surgery in June of 2009, Plaintiff never reported any medically-related issue with her foot to Defendant. (Id.) Plaintiff described herself as a "good" store manager and indicated that she was able to perform all the responsibilities of her position "satisfactorily." functions and (Id. 97- at 98.) During managers' managers Plaintiff's employment with Defendant, store salaries were determined on an annual basis by district with the aid of a pay modeler. (Barkley Dep. at 14.) The pay modeler suggested salary ranges based on various factors, including geographic location, risk class, given store. (Id.) Additionally, and sales volume for a store managers who transferred laterally to other stores would not see their salary reduced if the pay modeler (Id. suggested a lower salary range for the store. at SI 15.) Defendant officially relevant did have to this a not employ part-time "holding manager" action. (See Id. , SI 7 store position 12; managers during Barkley the Dep. at or times 44.) Unofficially, also known as to substitute for managers where needed. "floaters," Defendant used "holding managers," (Pringle Dep. at 34; Bales Dep. at 69, Dep. at 45.) For example, 140; Barkley Dep. at 44; Halstead a holding manager would occasionally fill in for a manager on a leave of absence or a manager who had suddenly left his or her position. (Bales Dep. at 69.) 5) Plaintiff's Surgery Plaintiff observed that her right foot after she spent "a long period of time" working. 92, 179.) swelled and hurt (Pringle Dep. at She could stand for more than two hours at a time but could not stand the entire day before she experienced pain in her foot. (Id. at 180.) Plaintiff would occasionally sit down in the store's office when her foot began hurting, but could not recall how often she had to sit down throughout the week. 82.) Prior to her surgery, her foot discomfort. On nor had she 31, 2009, 181- Plaintiff had not taken medication for received (Id. at 181; Smith Dep. March (Id. at Thomas medical treatment for her at 51.) Smith, M.D. ("Dr. Smith"), a podiatrist, diagnosed Plaintiff with a bunion on her right foot. (Smith Dep. at 10 & Ex. 1.) A bunion is an "angular deformity on the foot where the bones that make up the great toe stick out on the inside of pressure and [the] foot .... . . . within [It] can be painful to shoe the joint itself." (Id. at 10-11.) Plaintiff's bunion was a "significant deformity to her great toe" and was exaggerated when she stood on it. Dr. Smith observed that Plaintiff's (Id. bunion Plaintiff indicated that she had 67 & Ex. experienced progression of deformity and pain over time." 1.) at had 1.) a "slow 64 & Ex. bunion since (Id. the at childhood and complained to Dr. Smith of "pain within the joint as well as However, gait, difficulty with shoe fit." Dr. Smith noted that Plaintiff did not wear a corrective shoe, 23-24, 29 & Ex. (Id. at 11, walked 63 & Ex. with a and did not limp. 1.) normal (Id. at 1.) Days before her surgery, Plaintiff notified Bales that she would be taking a medical leave of absence to undergo a procedure to remove 168.) Bales manager long her bunion. informed (Pringle Dep. at 52; Plaintiff that she would in her position and that as she communicated with documentation for her leave. Bales Plaintiff's Bales and place job was turned (See Bales Dep. Dep. in a at 21, holding secure the so proper at 37.) Plaintiff had surgery to correct the bunion on or about June 12, 2009, which involved general anesthesia. Smith Dep. first at 16, metatarsal metatarsal. 66.) and (Pringle Dep. at 95; Dr. Smith cut the bone at the base of the inserted two screws to realign the first (Smith Dep. at 65.) He then inserted a "joint release at the level of the joint to straightened first metatarsal." 6) the toe on a newly (Id.) P l a i n t i f f ' s Leave of Absence On June 8, Defendant Decl., straighten and Ex. leave. 2009, prior to the operation, requested 1.) (Id.) Defendant On 12, receipt of its request Plaintiff's Pringle Dep., ("provider Ex. 4.) to (Jarrett Decl., a FMLA claim leave.2 file for Defendant Plaintiff's address Plaintiff's mailed FMLA of (Jarrett leave record. a letter of absence (Id., Ex. 2; A health care provider certification form Defendant Ex. for 2009, mailing certification") submitted apply opened June confirming to to Plaintiff contacted was for 2.) The attached to approval letter of the letter Plaintiff's notified Plaintiff to be leave. that she was required to confirm her return-to-work date with her district manager prior to the end of her leave and to promptly notify her district manager changed. (Id.) certification and Defendant Dr. Smith form on June if her completed 12, 2009, return-to-work date and submitted the which indicated that 2 Defendant had contracted with Aon Hewitt, a third party vendor to administer leaves of absence on its behalf and according to its policies. (Barkley Dep. at 11.) Aon Hewitt's duties were to coordinate with Defendant's employees regarding the requisite documentation for an employee's request for a leave of absence, to evaluate the employee's eligibility for leave, and to communicate with the employee and Defendant regarding requests and approval for extensions of leave, if any. (Id. f 4.) The vendor used Defendant's letterhead on its official correspondence to Plaintiff and held itself out to be Defendant. (See generally Barkley Dep. at 11; Halstead Dep. at 111.) Plaintiff's interactions with the Accordingly, the Court will consider third-party Defendant. 10 vendor as if it were with Plaintiff would be out September 13, 2009. on leave her request September 3, June 12, 2009, until (Jarrett Decl., Ex. 3; Pringle Dep., Ex. 5.) By letter dated June 25, that from for 2009. 2009, FMLA Defendant notified Plaintiff leave had been approved (Jarrett Decl., Ex. 4; Pringle Dep., through Ex. 6.) The letter advised Plaintiff of her obligations for returning to work, which supervisor (Jarrett included and confirming submitting Decl., Ex. 4.) a completed Defendant leave of absence on August 25, 7) Plaintiff's By letter First her return fitness notified 2009. 25, for Bales 2009, with duty of (Jarrett Decl., Extension of Her Leave dated August date her form. Plaintiff's Ex. 1.) of Absence Defendant confirmed Plaintiff was scheduled to return to work on September 14, that 2009, and warned that if she did not return to work on this date, she could Defendant's be considered policies. to (Id., have Ex. voluntarily 5; Pringle resigned Dep., Ex. that per 7.) Plaintiff contacted Defendant the same day seeking an extension of her return-to-work date. Defendant advised Plaintiff would need to submit an updated provider certification. Declaration, Ex. 1.) that she (Jarrett Plaintiff submitted a fitness for duty form, dated September 8, 2009, requesting an extension of leave through October 5, 2009. (Jarrett Decl., 11 Ex. 6; Pringle Dep., Ex. 8.) Defendant approved (Jarrett Decl., 8) Ex. September advised request on September 16, 2009. 1.) Plaintiff's On again Plaintiff's Second Extension of Her Leave of Absence 17, her 2009, that Defendant she must contacted submit an Plaintiff updated and provider certification to request an extension of her leave and to submit an updated date. (See fitness Jarrett extension process same date, request Ex. with 2, to Plaintiff (Id.) return-to-work contacted Defendant Plaintiff (Id.) to extend her a the provider By letter of the (Id., leave and noted that the Ex. certification 7; Pringle Dep., to Defendant be received an letter dated October 23, Ex. 9.) of It attached submitted 11; Pringle Dep., 12 Ex. to certification, November 9, 2009. 10.) 2009, Defendant Plaintiff that her extension request had been approved. Ex. for Ex. 7.) On October updated provider 9; Pringle Dep., request was and (Jarrett Decl., (Jarrett Decl., Ex. Ex. completed a return to work date Decl., Defendant reviewed and requested that which provided for By her Defendant confirmed its receipt of Plaintiff's second provider 2009, 1.) 2009. Defendant within fifteen days. 6, prior faxed to her physician. "non-FMLA leave." a form regarding an extension of her leave through November certification be duty Decl., on October 5, 2009, approximately for 34.) The letter informed (Jarrett advised Plaintiff that she was not considered eligible for additional leave under the FMLA or other applicable law and that she thereby was not legally entitled to job protection. 11.) The letter further (Jarrett Decl., advised Plaintiff that Ex. she would need to confirm her return to work date with Bales prior to returning to work.3 (Id.) 9) P l a i n t i f f ' s Third Extension of Her Leave of Absence By phone call on November 3, 2009, Plaintiff discussed with Defendant the fitness for duty form that she received in the mail from Defendant. (Jarrett Decl., Ex. 1.) On the same date, Defendant received a fitness for duty form completed by Dr. that released Plaintiff to restrictions on January 4, Dep., duty Ex. 12.) form by Defendant return 2010. Ex. work full (Jarrett Decl., time Ex. 12; with letter dated November would review the request 6, 2009, once (Jarrett and for indicated that Plaintiff Decl., no Pringle Defendant acknowledged receipt of the fitness updated provider certification. Dep., to Smith Ex. submitted 13; an Pringle 13.) 3 By letter dated October 19, 2009, Defendant advised Plaintiff that she was scheduled to return to work on November 9, 2009, and that prior to her return date she was to submit a fitness for duty form and to confirm her return-to-work date with her district manager. (Jarrett Decl., Ex. 10; Pringle Dep., Ex. 11.) The letter warned that if Plaintiff did not return to work on November 9, 2009, or contact her district manager, she would be "subject to [Defendant's] attendance policies and may be considered to have voluntarily resigned from the company." (Jarrett Decl., Ex. 10.) 13 Plaintiff Defendant contacted advised Defendant Plaintiff that on November the six-month offered to employees would end in December.4 1.) By letter dated November 6, 23, 2009, maximum and leave (Jarrett Decl., 2009, Defendant Ex. advised Plaintiff that she had exhausted all of her approved leave time and that she must make arrangements to return to work.5 (Jarrett Decl., Ex. Plaintiff 14; Pringle Dep., Ex. 15.) if had restrictions, that she still Defendant. (Jarrett Decl., failed to do so, considered to have (Jarrett Decl., The advising request her because Defendant Plaintiff if the days, form within would seven be subject Ex. mailed was (Jarrett Decl., that resigned had The letter warned that absences warned 14; Pringle Dep., Defendant she must 14; Pringle Dep., voluntarily day, that certification. Defendant Ex. next Ex. The letter further advised unable not Exs. Ex. contact 15.) If she Plaintiff might be from her position. 15.) a letter to Plaintiff to review her extension yet submitted a 1, 15; Pringle Dep., provider Ex. 17.) Plaintiff did not complete and return her to leave would be Defendant's closed and any attendance policy. (Jarrett Decl., Exs. 1, 15; Pringle Dep., Ex. 17.) On December 8, 4 Plaintiff testified that she was unaware of the six-month policy. (Pringle Dep. at 129.) 5 Plaintiff testified that she cannot recall whether she received this letter, and this letter is missing from Halstead's investigation files. (Pringle Dep. at 129; Halstead Dep. at 154.) 14 2009, Defendant informed Plaintiff that her case would be forwarded to its human resources department for a determination. (Jarrett Decl., Ex. 1.) In late November or early December of 2009, with Bales about her return to work. would return in January, provided Plaintiff spoke They agreed that Plaintiff that Plaintiff communicated with Bales and submitted the proper documentation for her leave. (Bales Dep. at 212.) Plaintiff submitted an updated, completed provider certification form dated December 10, health 2009, care indicating that Plaintiff would return to full-time work on January 4, 2010. (Smith Dep., Ex. B.) But Plaintiff did not return to work on January 4, despite being cleared by her doctor to do so. 10) Plaintiff's Plaintiff appointments prescribe met to any with gauge appointment, Dr. encouraged" with to Dr. the additional generally Smith Dep. According Recovery Dr. Smith for progress measures a of to number her aid of follow-up recovery her and recovery. to (See at 18-43 & Ex. 1.) At her November 17, 2009, Smith her noted that recovery. Smith, Plaintiff (Smith Plaintiff had Dep. was at "markedly '"pleased 36 & and Ex. 1.) improved" and "had completed her physical therapy program with a reduction in pain and increased movement of her toe." 15 (Id.) At that time, she had "returned to near full activity" with "little, or discomfort." (Id.) Of particular note Plaintiff's confidence in her foot had grown. if any, to Dr. pain Smith, (Id. at 36-37 & Ex. 1.) Dr. Smith and Plaintiff planned on her returning to work by January of 2010. 11) (Id^ at 37 & Ex. William Logan 1.) Warbington, Plaintiff's White Male Replacement William Warbington Defendant on July 17, ("Warbington") 2006, as an assistant Defendant's Mt. Vernon, Georgia, store. 1.) He was 2008, Georgia, store as an store. (Barkley Decl. assistant manager at manager. 11 21.) Based on geographic location of the Dublin, Georgia, compensated at a rate of $600 per week. On July 5, 2009, Bales, He December Soperton, He was compensated at a rate (Id.) On May 24, 2009, (Id. (Id.) Defendant's Warbington transferred to one of Defendant's stores in Dublin, Georgia, store at SI 18 & Ex. re-hired by Defendant on (Id. SI 20 & Ex. 1.) of $8.00 per hour. to manager compensated at a rate of $6.00 per hour. subsequently resigned and was 18, began his employment with the and was promoted sales volume and store, Warbington was (Id. at 21 & Ex. 1.) Warbington's district manager, transferred him to the Wrightsville store to serve as a holding manager while Plaintiff was on approved leave. 169 & Ex. 35.) Consistent with 16 Defendant's (Bales Dep. at 69, internal policies, Warbington's salary was not reduced when he transferred to the Wrightsville store despite its comparatively lower sales volume. (Barkley Decl. automatically SI 24.) terminated When for Plaintiff's failing to employment return from was leave, Warbington filled her position at the Wrighstville store until he was subsequently transferred to another store. 35.) Warbington's Ultimately, terminated on April 21, 2013. 12) Plaintiff's employment (Bales Dep., with Defendant Ex. was (Barkley Decl. SI 25.) Fourth Extension of Her Leave of Absence Plaintiff was aware that she was not on an approved leave of absence as of January 5, 2010, because she had not returned to work or provided the correct paperwork to obtain approval for an extension of Defendant she had Decl., leave. called (Pringle Dep. her resumed her Ex. On that (Jarrett Decl., physician left duties a at 146.) voicemail On January 8, to determine the Wrightsville store. 2010, whether (Jarrett 1.) January indicated and at 12, she hours January 12, Plaintiff s intended Plaintiff to contacted return Ex. 1.) During the call, told her extended 2010, at that the 2010, return she work options 19, and 2010. Plaintiff said that her store. contacted 17 January physically unable Wrightsville Bales to was on Defendant (See id. ) Defendant because her to to leave work the Also on discuss time was exhausted and she was not able to return to work. Ex. (Jarrett Decl., 1.) 13) Plaintiff's Request to Return to Work with Restrictions Plaintiff met with Dr. appointment on January 12, Smith 2010. again (Smith Dep. for a follow-up at 37-41.) Though Dr. Smith explained that the surgery would not provide a "100%" fix (id. at 16) , Plaintiff noted good improvement and "far less pain" (id. at 38) . Dr. Smith observed that the pain was "much improved over the preoperative state in terms of . . . the great toe joint, words, . . . soreness!,] Plaintiff prior to surgery. and shoe irritation." reported that (Id.) she was "[Plaintiff] (Id.) In other better off than she was was very pleased and would not trade her foot back." (Id.) During the appointment, Plaintiff represented to him that she was counseled by Defendant to delay her return date until later in January and to return part time. (Id.; Pringle Dep. Dr. at 150.) Smith described the conversation as "unique" because he had already cleared her to go back full-time when she said that she was offered this part-time return arrangement. (Smith Dep. at 40-41.) Based on these representations, Dr. Smith agreed, stating in his deposition that "[i]f an employer is willing to do some transitioning with part-time employment or something like that, that sounds reasonable to me." 18 (Id. at 39, 76.) He further confirmed request. that (Id. Dr. there was no medical reason for the part-time at 40.) Smith completed a provider certification dated January 12, 2010. employee (Pringle Dep. do work indicated that of at 155 & Ex. any kind?" 16.) prompt Plaintiff "can do Under the "[c]an the on [her] the job." form, Dr. Smith (Pringle Dep. Ex. 16.) Dr. Smith also marked on the form that Plaintiff required a reduced schedule of Under the prompt, at his or 2010. "26 hours/week" "Return Date: her normal and "8 hours/day." (Id.) Date employee can return to work schedule[,]" Dr. Smith marked January 19, (Id.) On January 14, 2010, Plaintiff called Defendant to verify whether it had received her provider certification and requested that the form be used in place of because it detailed her restrictions. requested restrictions resources department requested for restrictions Wrightsville store (Halstead Dep., Ex. were Bales could work with (Id.) for (Jarrett Decl., to (id.), duty Ex. 1.) Defendant's which to determine the requested form The human forwarded the whether the restrictions. 50.) Bales responded by e-mail, be met." fitness forwarded approval to her "No these restrictions [cannot] The denial of her restrictions request was never communicated to Plaintiff. (See Bales Dep. at 112-13; 19 Halstead Dep. to at 83-84, that 89.) proposed Defendant did not consider other alternatives by Plaintiff and Plaintiff to submit alternatives, policy that employees bear did not directly justifying its actions on its the responsibility alternative restrictions to their supervisor. 58-59; Halstead Dep. During a phone request to propose (See Bales Dep. at at 48, 75.) call with Plaintiff on January 20, 2010, Defendant advised Plaintiff to keep in contact with Bales about her leave because her non-FMLA leave had expired. (Jarrett Decl., Ex. 1.) Plaintiff opted not to stay in regular contact with Bales or the Human relying on Resources Bales to restrictions request. 14) Department contact her because about she purportedly options regarding was her (Pringle Dep. at 166-67.) Plaintiff's Automatic Termination Plaintiff s employment with terminated on January 31, 2010. On February 2, employment (Jarrett had Decl., 2010, been Ex. Defendant was automatically (Barkley Dep. at 16-17 & Ex. 58.) Defendant received notice that terminated 1.) On and February closed 22, her 2010, Plaintiff's leave Bales file. manually entered a personnel action form into Defendant's record-keeping system, which indicated that Plaintiff resigned separation code for "failure to return from leave." at 72, 75 & Ex. 29; see Barkley Dep. 20 at 9, under the (Bales Dep. 24.) The personnel action form indicated that Plaintiff was eligible for rehire. (See Bales Dep., Ex. 29.) Plaintiff contacted Bales on March 9, 2010. Plaintiff (Pringle learned of Dep. termination during (Pringle Dep., for at 170-73.) Bales and "rehireable" reapply her eligible to told apply this Plaintiff for Defendant, at 172.) conversation. that another Ex. 3; see Bales Dep. at 213.) a position with (Id. she was position. Plaintiff did not acknowledging not to because she was "angry." (Pringle Dep. she at 60-61, chose 200-01.) Neither did Plaintiff check to see if a position was available.6 (Pringle Dep. at 60-61.) On March 10, 2010, Plaintiff sent Bales a letter challenging her termination of employment from Defendant. Ex. 3.) Defendant initiated complaint in March 2010, an investigation into 101 & Plaintiff's and informed Plaintiff on April 6, 2010, that her termination was upheld. B. (Pringle Dep. (Halstead Dep. at 33, 84.) Procedural History Plaintiff Employment charge of Opportunity alleging race, 6 Plaintiff's filed a Commission discrimination ("EEOC") on with July sex, and disability discrimination. evidence shows that Ms. Erica Quarterman the Equal 14, 2010, (Pringle Dep. completed a paper application for a cashier position with Defendant. (Quarterman Dep. at 18.) Thereafter, she was internally promoted, without completing an application, to an assistant manager position and a store manager position. (Id. at 19, 21.) 21 Ex. 28 at Bates DEF0558.) EEOC found reasonable By letter dated January 10, cause to believe that 2012, the discrimination had occurred and issued Plaintiff a notice of dismissal and right to sue letter. On against 2012, March 30, 2012, Defendant. Plaintiff supervision. declaratory (3) In and the instant Plaintiff amended her complaint raising claims for: discrimination; filed June discrimination; prayer injunctive wages and other benefits, for relief, and relief, (4) 24, (2) (1) disability discrimination; sex her on lawsuit race negligent Plaintiff compensatory punitive damages, seeks damages, interest, lost costs and expenses of litigation, and attorney's fees.7 II. PLAINTIFF'S OBJECTION TO THE Defendant representative Defendant's uses of leave the the declaration entity policy, to of JARRETT DECLARATION Mr. (Aon Hewitt) support its Todd Jarrett, that administers motion for a summary judgment. Records are attached to his declaration that he refers to and relies on throughout his statement. attached records describe the numerous The declaration and communications between 7 Plaintiff filed a Chapter 13 bankruptcy petition on April 2, 2010, in the United States Bankruptcy Court for the Southern District Georgia. (Pringle Dep. at 212-14 & Ex. 27.) During the pendency of the bankruptcy proceedings, Plaintiff failed to disclose that she filed an EEOC charge and failed to disclose that she filed the instant lawsuit against Defendant. (Id. at 215-16 & Ex. 26.) 22 Plaintiff, Aon Hewitt and Defendant throughout the Plaintiff's eight month medical leave of absence. the communications extend her largely pertain to course of The content of Plaintiff's requests to leave. Plaintiff argues that inadmissible because 1) the Jarrett declaration Defendant failed to disclose Mr. is Jarrett as a witness in its initial disclosures and discovery responses; and 2) Mr. matter Jarrett because he lacked was personal hired after knowledge Plaintiff of was the subject automatically terminated. Under Federal Rule of Civil Procedure 56(c)(4), or declaration used to support or oppose a motion judgment must be made on personal knowledge, would be admissible in evidence, and show an affidavit for set out facts that that the affiant declarant is competent to testify on the matters stated. Civ. 540 P. F. 56(c)(4); Appx. abuse its under Rule Brouqhton v. 907, 911 discretion 56(c)(4) School Bd. (11th Cir. in Title because its case Fed. of Escambia Cntv, 2013) (district VII summary by factual court striking allegations or R. Fla., did not affidavit were not based on personal knowledge). Here, personal Mr. Todd knowledge, declaration itself, Jarrett's although declaration he states was not otherwise made on in the because he was not employed with Aon Hewitt 23 during Plaintiff's employment. The facts giving rise to this case occurred between June 2009 and January 2010. Mr. Jarrett was hired in June 2010. His declaration is simply commentary on the records. Thus, That said, employees earlier, his declaration is struck. who and Mr. had he is Jarrett handled the was given responsibility Plaintiff's appropriate case several custodian of the over months records documenting her case. The records attached to his declaration are the best evidence of the time line and communications between Plaintiff and Defendant. are admitted. This is a minor issue, however, content Thus, of the the records because neither the declaration nor the attached records play a prominent role in the Court's resolution of this III. A. case. MOTIONS FOR SUMMARY JUDGMENT Summary Judgment Standard Summary judgment is appropriate only if "there is no genuine dispute as judgment as to any material a matter of fact law." and the movant Fed. R. Civ. is entitled to P. 56(a). Facts are "material" if they could affect the outcome of the suit under the governing substantive law. Anderson v. U.S. 242, 248 Liberty Lobby, Inc., 477 (1986). The Court must view the facts in the light most favorable to the non-moving party, 24 Matsushita Elec. Indus. Co. draw v. Zenith Radio "all Corp.. 475 U.S. 574, in [its] justifiable inferences Parcels of Real Prop.. 941 F.2d 1428, 587 (1986), favor." 1437 and must U.S. (11th Cir. v. Four 1991) (en showing the banc)(internal punctuation and citations omitted). The Court, moving by motion. party reference has Celotex Corp. initial materials to the on v. Catrett, burden file, 477 U.S. of the basis 317, the (1986). 323 for How to carry this burden depends on who bears the burden of proof at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). When the non-movant has the burden of proof at trial, the movant may carry the initial burden in one of two ways — by negating an essential element of the non-movant's case or by showing that there is no evidence to prove a fact necessary to the non-movant's 604, 606-08 Co. , 398 317 case. See Clark v. & Clark, Inc., (11th Cir. 1991) (explaining Adickes v. U.S. (1986)). 144 (1970) Before and Celotex Corp. the response in opposition, has met Coats Court can v. evaluate F.2d S.H. Kress & Catrett, the 929 477 U.S. non-movant's it must first consider whether the movant its initial burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Jones v. City of Columbus, Cir. 120 F.3d 248, 254 (11th 1997) (per curiam) . A mere conclusory statement that the non- movant cannot meet the burden at 25 trial is insufficient. Clark, 929 F.2d at 608. If — and only if — the movant carries its initial burden, non-movant that may avoid is indeed there summary judgment." proof at method trial, by which summary judgment a material Id. When the only by of fact that bears the issue non-movant the non-movant must tailor the its movant carried the "demonstrat[ing] its precludes burden of response to the initial burden. If the movant presents evidence affirmatively negating a material fact, the non-movant withstand a "must respond with evidence directed verdict motion at trial on the material sought to be negated." Fitzpatrick, 2 F.3d at 1116. shows an absence of evidence on a material must either "overlooked additional motion at sufficient show or that ignored" evidence trial the record by the sufficient based on the contains movant to fact, or withstand fact If the movant the non-movant evidence "come a to that forward directed was with verdict alleged evidentiary deficiency." Id. at 1117. The non-movant cannot carry its burden by relying on the pleadings or by repeating conclusory allegations contained in the complaint. See Morris v. Ross, Cir. 1981). Rather, 663 F.2d 1032, 1033-34 (11th the non-movant must respond with affidavits or as otherwise provided by Federal Rule of Civil Procedure 56. The Clerk has given the non-moving parties notice of motion for summary judgment and the summary judgment rules, 26 the of the right to file and of the affidavits or other materials consequences of default. in opposition, (Docs. nos. 57, 58.) Therefore, the notice requirements of Griffith v. Wainwriqht, 772 F.2d 822, The time for 825 (11th filing Cir. 1985) (per materials in curiam) , are opposition has satisfied. expired, and the motions are ripe for consideration. B. Analysis Plaintiff claims that Defendant's decision to automatically terminate her employment for failing to return from improperly based on her race, sex, and disability. leave was Plaintiff also presents a negligent supervision claim under state law. Defendant moves for summary judgment as to all of Plaintiff's claims on the merits and on the grounds of moves for summary judgment discrimination claim. with the judicial estoppel, only as while Plaintiff to her disability The Court addresses each in turn, cross-motions for summary judgment under the starting A.D.A., then resolving Defendant's various additional motions. 1. Cross-Motions for Summary Judgment as to Plaintiff's Disability Discrimination Claim under the A.D.A. The A.D.A. prohibits an employer from discriminating against xxa qualified disability of procedures, individual such an the hiring, with a individual disability in regard to advancement, 27 because of the job application or discharge of employees, employee compensation, and privileges case, of job training, and other terms, conditions, employment." Plaintiff claims that because of her 29 U.S.C. § 12112(a). In this Defendant terminated her employment bunion-related disability in violation of the A.D.A. In order to establish a prima facie case of discrimination in violation of the A.D.A., has a disability; a plaintiff must show that: v. BSA Advertising, An individual mental has Inc., a is impairment that regarded 12102(2). first as Plaintiff and employment third in 357 F.3d 1213, disability she: 1) (11th Cir. has a 2004). physical of or her has a record of such an impairment; or having such insists that categories January if 1215 Carruthers substantially limits one or more major life activities; 2) 3) she (2) she was a qualified individual; and (3) she discriminated against because of her disability. was (1) 2010. disabled primarily because an impairment. 29 U.S.C. § she was disabled under both the when Defendant Defendant argues her doctor terminated that cleared her she to her was not return to work full-time with no restrictions and therefore urges that she fails to establish a prima facie case. Despite this the issue, this uncontroverted parties' is not testimony extensive briefing a difficult of issue Plaintiff s 28 to and litigation resolve physician given and her of the own testimony. Plaintiff admits that she had no limitations at any time on her work prior to her bunion surgery in June 2009, never sought medical treatment for her condition until June 2009, was fully aware that her doctor released her to and return to work full-time without any restrictions on January 4, 2010. Plaintiff's physician, Dr. Smith, testified that he sent Plaintiff back to work with no restrictions because she had fully recovered from surgery. After he released her to return full- time on January 4, Plaintiff went back to him and asked to be put on part-time restrictions. He signed a restriction to that effect, which Plaintiff brought to her employer. The part-time work accommodation was Plaintiff s idea after consulting with her employer; it was not Dr. Smith's idea. It may have been a reasonable transition plan for her to use a part-time schedule to ease back into the workplace following her operation, Dr. Smith observed, but working part-time rather than full-time was certainly not medically necessary. She reported to him that she felt better after the surgery than before the surgery, Smith reasoned that she certainly should what she was doing prior to her operation. to do that, antithetical of the for whatever reason. to three the A.D.A. to categories 29 able to return to She simply chose not Given these facts, find that of be so Dr. Plaintiff "disabled" it would be fell when into any Defendant automatically terminated her establish a prima facie case, for employment. 2. Defendant's failed to the Court GRANTS Defendant's motion summary judgment and DENIES judgment as to her A.D.A. Having Plaintiff's motion for summary claim. Motion for Summary Judgment as to Plaintiff s Race and Sex Discrimination Claims under Title VII In addition to an allegation of disability discrimination, Plaintiff also alleges that Defendant terminated her because she was an African-American female. Title VII prohibits employers from discriminating "against any individual with respect to his compensation, because of terms, such individual's national origin." has presented not conditions, 42 U.S.C. any or race, § privileges 2000e-2(a)(1). direct evidence of employment, religion, color, of sex, Because or Plaintiff discrimination, the Court must analyze her disparate treatment claim under Title VII using the framework outlined by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 1293 (11th Cir. In a ultimate was taken Joe's v. Southland Corp., 187 F.3d 1287, 1999) . disparate burden of because Stone Wright treatment case, proving that of Crab, the 2000)(citations omitted). 220 plaintiff the employment plaintiff's Inc., the F.3d protected 1263, Under the McDonnell 30 bears action at status. 1274 Douglas the issue EEOC (11th v. Cir. framework, the plaintiff must first come forward with a prima facie case of employment discrimination. If the plaintiff establishes a prima facie case, she raises the inference that discriminatory intent motivated the challenged action. A feather-weight burden of production then shifts to the defendant for the 1564 to articulate action in a legitimate, question. nondiscriminatory Holifield v. Reno, 115 reason F.3d 1555, (llch Cir. 1997). If the defendant carries its burden, plaintiff retains the burden of persuasion to show that the the employer's proffered explanation was not the real reason for the employment change, Texas Dep't of but was instead a pretext for discrimination. Cmtv. Affairs v. Burdine, 450 U.S. 248, 256 (1980). If, however, the plaintiff fails to establish a prima facie case for discrimination, summary judgment in favor of defendant is proper. Summer v. City of Dothan, Ala., (11th Cir. 2011)(affirming favor of employer where district former 444 court employee F. Appx. summary alleging 346, 350 judgment race and in sex discrimination under Title VII failed to establish a prima facie case for discrimination). To establish plaintiff must (2) she was a prima show: (1) subjected facie case she to of disparate treatment, a is a member of a protected class; adverse 31 employment action; (3) her employer treated similarly situated employees who were not of the same protected class more favorably; and (4) she was qualified to do the job. Mavnard v. Board of Regents, 342 (11th Cir. 2003) (citations omitted); Holifield, The parties female, for do not dispute that Plaintiff, F.3d 1281, 1289 115 F.3d at 1562. an African-American is a member of a protected class, that she was qualified the job, and They disagree, that however, she suffered adverse employment action. as to whether Plaintiff was treated less favorably than similarly situated employees of different race and sex. "In determining whether employees are similarly situated for purposes of establishing a prima facie case, it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways." Maniccia v. Brown, omitted). Plaintiff similarities protected 346, 348 require between class. that be bears her Summers (11th Cir. misconduct guessing 171 F.3d 1364, 1368 the burden conduct v. and City of quantity and identical reasonable of that of Dothan, 2011) (citing Maniccia, nearly employer's the (11th Cir. prevent decisions with oranges.") 32 showing others Ala., adequate outside 444 F. of the courts and her Appx. 171 F.3d at 1369 quality to 1999)(citations ("We comparator's from confusing secondapples Here, her Plaintiff's conduct eight month medical that led to her termination leave of absence and her was request for a part-time schedule upon returning from that leave of absence. The sole basis for Plaintiff s sex and race discrimination claim is that a white male earning a higher salary filled in for her while she was gone return and from replacement, permanently leave. replaced Warbington, her when she Plaintiff's failed white to male is not a "similarly situated" person (a comparator) because he and Plaintiff differ in several respects. Warbington is not a comparator because there is no evidence showing that he attempted absence. In other words, store manager white male requested to come Defendant had granted good comparator. favorable or back to otherwise, was who to that But from Plaintiff if return had work request, Warbington under taken on a then never Defendant's a medical able to leave point of to a medical leave, had part-time basis, and that person may be a received treatment, leave attendance and policy and therefore is not a "similarly situated" person. Plaintiff takes issue with the fact that Warbington was paid more than she was and points to this as evidence of racial and gender discrimination. Defendant did not Consistent reduce with Warbington's Defendant's salary when policies, he was transferred to the smaller store during Plaintiff's medical leave 33 of absence. were Plaintiff is not similar to Warbington in that they promoted different to sales store managers volumes, a at different neutral factor stores in with determining salaries, and therefore were compensated at different rates. In addition comparator who to finding received that Plaintiff different fails treatment to under present a Defendant's attendance and leave policies, the Court notes that there is very little evidence discrimination in claim the record under to Title support VII. This a is race not a or gender case where Plaintiff s supervisor has had previous complaints lodged against her for inappropriate Plaintiffs suit deposition that is she comments does gender related comments. misconduct first. the or Plaintiff not recall Bales in the workplace. admitted ever making in race therefore, summary judgment in favor of Defendant is proper on Plaintiff's Title VII claims. City of or In the absence of a prima facie case or other evidence of discrimination, Summer v. her Dothan, Ala., 444 F. Appx. at 350 See (affirming summary judgment for defendant where plaintiff failed to make a prima facie case VII); Word v. AT&T, 2014)(affirming African Title American VII and for sex and gender discrimination under Title 2014 WL 3928951, summary female the judgment former A.D.A. for at *5 (llch Cir. Aug. former employer where an violations of employee for 34 race, alleged sex, and 13, disability discrimination but failed to make a prima facie case); Holifield, 115 F.3d at 1562 a ("If a plaintiff fails to show the existence of similarly situated employee, summary judgment is appropriate where no other evidence of discrimination is present."); Chapman v. AI Transp. 229 F.3d 1012, 1030 (11th Cir. 2000) ("Federal courts do not sit as a super-personnel department that reexamines an entity's business decisions.") 3. Defendant's Motion for Summary Judgment as to Plaintiffs Negligent Supervision Claim Plaintiff alleges that Defendant was grossly negligent in failing to properly monitor and supervise Plaintiff's supervisor, Bales, once medical Plaintiff leave. requested Defendant's disability gross accommodations negligence, Plaintiff and urges, directly and proximately resulted in injury to Plaintiff, namely Plaintiff's wrongful termination. Defendant allegedly acted with reckless acted indifference with actual or to Plaintiff's imputed rights knowledge that and/or the Defendant inevitable or probable consequences of its actions or omissions would result in harm to Plaintiff and in and state law. Under ordinary (Am. Compl. Georgia care in law, the violation of her rights under federal to exercise SISI 58-60.) "the employer selection of is employees bound and not to them after knowledge of incompetency." Herron v. Morton, 35 retain 155 F. Appx. the 423, 425 (11th Cir. 2005) (citing O.C.G.A. § 34-7-20). Both Eleventh liability that for the Circuit negligent employer employee's and knew propensity the Georgia hiring or Supreme retention Court requires or reasonably should have to engage in the hold type evidence known of that of the conduct that caused the plaintiff's injury. Id. at 425-26 (citing Middlebrooks v. Hillcrest Foods, Inc.. 256 F.3d 1241, and Munroe v. Universal Health Servs., 1247 Inc., (11th Cir. 2001), 596 S.E.2d 604, 606 (2004)). As noted in the previous section, Defendant never received a complaint of discrimination against Bales in her eleven years of employment with Defendant prior to the facts this suit. Defendant was that gave rise to not aware and had no reason to be aware of any foreseeable harm to Plaintiff or anyone else from Bales. The Court GRANTS summary judgment for Defendant on Plaintiff's negligent supervision claim. 4. Defendant's Motion for Summary Judgment on Grounds of Judicial Estoppel Defendant estopped from argues that pursuing her Plaintiff claims should against be judicially Defendant because Plaintiff failed to disclose them in her bankruptcy proceedings. Under the doctrine of judicial estoppel, a party is precluded from asserting a claim in a legal proceeding that is inconsistent 36 with a claim taken by that party in a previous proceeding. Hampshire v. Maine. 532 U.S. 742, 749 (2001); Burnes v. New Pemco Aeroplex, Inc.. 291 F.3d 1282, 1285 (11th Cir. 2002). The purpose of the doctrine process by is to protect prohibiting the parties integrity from of the deliberately changing positions according to the exigencies of the moment. does not reach this Plaintiff's A.D.A. issue, however, judicial because the The Court Court and Title VII claims on the merits resolves in favor of Defendant. IV. Defendant DEFENDANT'S REQUEST FOR SANCTIONS requests attorneys' fees and costs incurred in responding to Plaintiff's motion for summary judgment because her motion is frivolous. Specifically, Defendant asserts that Plaintiff's suit is based completely on a lie: that Plaintiff was disabled. schedule 14, When as 2010, an Plaintiff alleged requested a part-time accommodation indefinite from Defendant on work January Plaintiff suffered from no medical condition and had no medical restrictions on any of her life activities, including her ability to clear Plaintiff's deposition Plaintiff's return to work full-time. deposition on August counsel on 2, July 2013. continued 23, This became 2013, Nonetheless, to 37 represent and her Defendant to the through doctor's argues, Court that Plaintiff was disabled and filed a motion for summary judgment on her A.D.A. claim. Sanctions under Rule Procedure are proper (1) 11 of the Federal Rules of Civil when a party files a pleading that has no reasonable factual basis; (2) when the party files a pleading that is based on a legal theory that has no reasonable chance of success and that cannot be advanced as a reasonable argument to change existing law; and (3) when the party files a pleading in bad faith for an improper purpose. Davis v. 536 that (11th Cir. 1990) (explaining Carl, 906 F.2d 533, sanctions premised on factually groundless allegations are appropriate when plaintiffs offered no evidence to support their allegations); Civ. P. see Fed. R. 11(c). The core facts in this case, Plaintiffs Defendant. doctor, But it are would be particularly the testimony of uncontroverted a and clearly mischaracterization of favor Plaintiff's motion for summary judgment to say that she presented no evidence to support impose LP, her sanctions. 559 F. Appx. allegations. See 856, The Manhattan 858 Court Const. therefore Co. v. declines Place to Properties (2014) (concluding that district court did not abuse its discretion in declining to impose sanctions). 38 V. For the reasons set forth summary judgment (doc. no. 55) partial Further, costs motion for CONCLUSION summary above, motion no. 71) is for is hereby GRANTED and Plaintiff's judgment (doc. no. 56) is DENIED. Defendant's request for an award of attorneys' (doc. DENIED. The FINAL JUDGMENT in favor of Defendant, motions, Defendant's Clerk is directed fees and to enter terminate all deadlines and and CLOSE the case. ORDER ENTERED at Augusta, September, Georgia, this 3&*^ day of 2014. HON$RAHLe-"J. RAJ>HDAL HALL united/states DISTRICT JUDGE SOUTHERN 39 DISTRICT OF GEORGIA
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