United States District Court, N.D. Alabama, Southern Division
E. Ott Chief United States Magistrate Judge.
action, Cynthia Cleveland (“Plaintiff”) brings
claims against her former employer, the Jefferson County,
Alabama, Board of Education (the “Board”),
alleging violations of the Family and Medical Leave Act of
1993 (“FMLA”), 29 U.S.C. § 2601, et
seq., and Alabama state law. (Doc. 11-1
(“Amended Complaint” or “Amd.
Compl.”)). The cause now comes to be heard on two
related motions filed by the Board. One seeks summary
judgment under Fed.R.Civ.P. 56. (Doc. 14). The other motion
requests that the court strike or otherwise decline to
consider the respective declarations of Plaintiff and another
witness, both filed by Plaintiff in opposition to summary
judgment. (Doc. 22). Upon consideration, the
court concludes that the Board's motion for
summary judgment is due to be granted and that its motion to
strike is moot.
SUMMARY JUDGMENT STANDARDS
to Rule 56 of the Federal Rules of Civil Procedure, party is
authorized to move for summary judgment on all or part of a
claim or defense asserted either by or against the movant.
Under that rule, the “court shall grant summary
judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. Proc. 56(a).
The party moving for summary judgment “always bears the
initial responsibility of informing the district court of the
basis for its motion, ” relying on submissions
“which it believes demonstrate the absence of a genuine
issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986); see also Clark v.
Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.
1991); Adickes v. S.H. Kress & Co., 398 U.S. 144
(1970). Once the moving party has met its burden, the
nonmoving party must “go beyond the pleadings”
and show that there is a genuine issue for trial. Celotex
Corp., 477 U.S. at 324.
the party “asserting that a fact cannot be, ” and
a party asserting that a fact is genuinely disputed, must
support their assertions by “citing to particular parts
of materials in the record, ” or by “showing that
the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ.
Proc. 56(c)(1)(A), (B). In its review of the evidence, a
court must credit the evidence of the non-movant and draw all
justifiable inferences in the non-movant's favor.
Stewart v. Booker T. Washington Ins., 232 F.3d 844,
848 (11th Cir. 2000). At summary judgment, “the
judge's function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether
there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
began working for the Board in 1995, as an Attendance Clerk
at Minor Community School. During the period relevant to her
claims, she was still employed at that school but as its
Office Coordinator. While assisting in the school lunchroom
on the morning of August 8, 2014, Plaintiff slipped on some
milk and fell, breaking her kneecap in three places. That
injury ended up requiring two surgeries, one in August 2014
and another the next month.
undisputed that, following the accident, Plaintiff ultimately
never resumed her work duties. Rather, she requested and was
immediately granted paid medical leave under the Board's
written policy authorizing such leave for up to 90 days for
an on-the-job injury. (See Doc. 16-1, Deposition of
Plaintiff Cynthia Cleveland (“Pl. Dep.”) at
72-73; Doc. 16-2 at 8-9; Doc. 16-3 at 17, 38; Doc. 16-5 at
1-2, Affidavit of Craig Pouncey (“Pouncey Aff.”)
¶ 3; Doc. 16-5 at 7). The Board also has a written
policy authorizing leave under the FMLA (Pouncey Aff. ¶
2; Doc. 16-5 at 3-6), a federal law requiring qualifying
employers to provide eligible employees up to 12 weeks of
unpaid leave for, among other things, “a serious health
condition that makes the employee unable to perform the
functions of [his or her] position.” 28 U.S.C. §
2612(a)(1)(D). Under the Board's policies, however, an
employee must utilize available paid leave before taking
unpaid FMLA leave, and any such paid leave she takes runs
concurrently with, and counts against, her 12-week allotment
of, unpaid leave under the FMLA. (Doc. 16-5 at 5, §
August 18, 2014, Becky Scott, an employee in the Board's
Finance Department, sent an email to Katina Cephus, the
Principal of Minor Community School, and copied Plaintiff,
referencing deficiencies in the physician certification form
that Scott had received for Plaintiff's knee injury.
(Doc. 16-2 at 23). In particular, Scott noted that the form
she received (see Id. at 24), which was completed by
an office manager instead of a physician, did not include a
return-to-work date and that the Board wanted a form from
Plaintiff's orthopedist, Dr. John Featheringill, dated
within a week of the accident. (Id. at 23).
Thereafter, the Board received another physician
certification form, this one filled out and signed by Dr.
Featheringill on August 22, 2014. (Id. at 25). On
that form, however, Dr. Featheringill still left the expected
return-to-work date blank. (Id.) Indeed, he was
asked on the form, “Is there a reasonable expectation
that the employee should be able to return to work, ”
to which he answered, “no.” (Id.)
days later, Plaintiff began the process of applying for
disability retirement with the Retirement Systems of Alabama
(“RSA”). Specifically, on August 25, 2014,
Plaintiff filled out and signed a “Report of Disability
Applicant Authorization” form that granted permission
to her long-time personal physician, Dr. Thomas R. Bryant, to
release her medical records and information to the RSA. (Doc.
16-2 at 52). Plaintiff indicated on that form that such
release was because she was “applying for ...
disability benefits from the [RSA].” (Id.)
Plaintiff was also seen on that same date, August 25th, by
Dr. Bryant. (Id. at 50). For several years, he had
treated Plaintiff for anxiety and depression, prescribing her
a number of medications for those conditions. (Id.;
Pl. Dep. at 92-93). On that visit to Dr. Bryant, Plaintiff
also appears to have supplied him with a form requesting that
he provide medical findings and an opinion on her disability
retirement claim. (Id. at 50-51). The following day,
August 26, 2014, Plaintiff went to the Board's central
office and completed and signed an RSA “Application for
Retirement” form, upon which she indicated she was
seeking disability retirement, effective November 1, 2014.
(Id. at 49). Plaintiff's signature on that
document was notarized, also on August 26th, by Kim Scarvey,
an employee in the Board's Human Resources department.
(Id.; Doc. 16-8 at 1-2, Affidavit of Kim Scarvey
(“Scarvey Aff.”)). That same day, Plaintiff also
completed and signed an “Insurance Authorization
Form” as part of her disability retirement application
paperwork. (Doc. 16-2 at 53).
September 8, 2014, Plaintiff sent a text message to Cephus
advising that she, Plaintiff, could not locate an iPad Mini
computer that belonged to the Board. (See Doc. 16-2
at 35). Plaintiff explains in her deposition that she
borrowed the iPad from a first grade teacher near the end of
the 2013-14 school year and took it home for the summer to
download “apps” on it for the teacher's
students to use. However, sometime in August 2014 after
Plaintiff was injured, she was contacted by the first grade
teacher who said she needed the iPad back, but Plaintiff was
unable to locate it. (See Pl. Dep. at 114-122, 126).
In texting Cephus on September 8th, Plaintiff notified her
that she had borrowed the iPad and taken it home, but it was
now missing and might have been stolen by her estranged
husband. (Id. at 128-129; Doc. 16-2 at 35).
Plaintiff also requested until her next paycheck to purchase
a replacement. Ultimately, however, Plaintiff never found the
iPad nor paid for another one. (Pl. Dep. at 203).
Nevertheless, Plaintiff claims that neither Cephus nor anyone
else from her school or the Board ever mentioned the missing
iPad to her again. (Pl. Dep. at 130-32, 203).
September 10, 2014, Gary Evans, the Board's Assistant
Director of Human Resources, visited Plaintiff at home. (Pl.
Dep. at 79-80, 108-09; Doc. 16- 4, Deposition of Gary Evans
(“Evans Dep.”) at 9-10). It is undisputed that,
on that occasion, Evans told Plaintiff that the Board needed
additional paperwork on her medical condition and status in
order for her to remain on leave and keep in-pay status. (Pl.
Dep. 79-80, 108-109, 132, 137, 147; Evans Dep. at 14-16).
Evans also delivered a letter to Plaintiff from Brett
Kirkham, the Board's Director of Human Resources, which
stated as follows:
This letter is to inform you that your on-the-job injury
information is not up-to-date. As of today, September 10,
2014, we have not received any additional documentation from
your physician regarding your August 8, 2014 injury at Minor
Community School; however, you still remain off work. As a
result, we are unable to provide the appropriate departments
the information to correctly process payroll and benefits
information. Please forward any new documentation to Ms.
Trish Linley, our new On-the-Job Injury Coordinator in our
Human Resources Department. If this documentation is not
received by Friday, September 12, 2014 we will begin the
Thank you for your service to the Board. If I may be of any
other assistance, please do not hesitate to contact my
(Doc. 16-2 at 48; see also Pl. Dep. at 134, 147;
Evans Dep. at 10, 15-17). It is undisputed that, in response
to Evans's visit, Plaintiff immediately supplied the
Board with additional documentation, and she remained on
paid, on-the-job-injury leave. (Pl. Dep. at 137, 152).
to Plaintiff, however, when Evans visited her on September
10th, he also gave her an “ultimatum” (Pl. Dep.
at 230) whereby he threatened in no uncertain terms that the
Board was going to fire her unless she applied for disability
retirement. (Id. at 133, 135, 151, 230-31). To that
end, Plaintiff says that Evans allegedly told her that
“Jefferson County [Schools were] doing [job]
cuts” (id. at 151) and that Dr. Craig Pouncey,
the then-recently-appointed Jefferson County Schools
Superintendent, told “them to get rid of the on-the-job
injury people first, then the people that could retire”
and “then they are going to do ... layoffs.”
(Id. at 148-49). Plaintiff says that Evans also told
her that she “needed to fill out the disability
retirement papers and get them in as soon as [she]
could.” (Id. at 135).
September 25, 2014, Dr. Bryant filled out and signed the form
that Plaintiff had apparently given to him during her office
visit on August 25, 2014, which requested information in
connection with Plaintiff's application for disability
retirement. (Doc. 16-2 at 50-51). On that form, Dr. Bryant
opined that Plaintiff was “totally incapacitated for
further performance of ... her duty” due to
“chronic depression, ” “acute exacerbation,
” and “suicidal tendency.” (Id.)
He also stated that Plaintiff was “totally
restricted” as to work functions and that there were no
“reasonable accommodations that could be made ... to
allow [her] to continue ... her employment.”
(Id. at 51). However, when asked whether
Plaintiff's “disability [is] permanent, ” Dr.
Bryant wrote, “Not sure.” (Id. at 50).
September 30, 2014, Plaintiff came to the Board's central
office and met with Trish Linley, an employee in the Human
Resources Department. (Doc. 16-9, Affidavit of Trish Linley
(“Linley Aff.”), ¶¶ 1-2). According to
Linley, she assisted Plaintiff in completing her application
for disability retirement, explained Plaintiff's final
payroll deduction to her, and signed the application form as
the employer representative. (Id. ¶ 2; see
also Doc. 16-2 at 49). In the presence of both Linley
and Tracee Binion, Plaintiff's union representative,
Plaintiff also signed a letter giving formal notice to the
Board that she was retiring, effective the next day, October
1, 2014. (Id. ¶ 3; Doc. 16-9 at 3). Linley then
forwarded Plaintiff's disability retirement application
documents to the RSA. (Linley Aff. ¶ 5).
October 2, 2014, the RSA sent a letter to Plaintiff stating
that Dr. Bryant's examining physician statement was
insufficient to establish her claim for disability
retirement. (Doc. 16-2 at 55). The letter explained that,
while an employee is eligible for disability retirement if
they cannot perform their job because of a permanent
condition, Dr. Bryant had said he is “not sure”
whether Plaintiff is permanently disabled. (Id.) As
a result, the RSA advised, Plaintiff would need to obtain
another statement from Dr. Bryant or another physician who
could verify that she was permanently disabled.
(Id.; see also Pl. Dep. at 170-171).
Meanwhile, although Plaintiff's retirement was originally
to be effective October 1, 2014 (see Doc. 16-2 at
54, 61), the Board extended her retirement date to November
1, 2014, which allowed her to keep her in-pay status and
insurance while she attempted to furnish another physician
statement in support of her claim for disability retirement.
(Pl. Dep. at 176-78, 190-91, 213, 222, 233, 245-46; Doc. 16-3
about October 10, 2014, Plaintiff submitted another
disability retirement application. (Doc. 16-2 at 56-60;
see also Pl. Dep. at 172-175). All of that paperwork
appears to be comprised of the same application documents she
had furnished previously, but with an amended physician
statement from Dr. Bryant. (Compare Doc. 16-2 at 49-53 with
Doc. 16-2 at 56-60). And in point of fact, Dr. Bryant's
amended statement (id. at 58-59) was but a copy of
his prior one with one change: when asked on the form whether
be believed Plaintiff's disability was permanent, where
Dr. Bryant had originally written, ...