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Cleveland v. Jefferson County Board of Education

United States District Court, N.D. Alabama, Southern Division

May 5, 2017



          John E. Ott Chief United States Magistrate Judge.

         In this 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.[1] 11-1 (“Amended Complaint” or “Amd. Compl.”)[2]). 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[3] concludes that the Board's motion for summary judgment is due to be granted and that its motion to strike is moot.


         Pursuant 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.

         Both 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).

         II. BACKGROUND[4]

         Plaintiff 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.

         It is 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, § 5.11.7).

         On 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.)

         Several 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).

         On 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.[5] (Pl. Dep. at 130-32, 203).

         On 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 termination process.
Thank you for your service to the Board. If I may be of any other assistance, please do not hesitate to contact my office.

(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).

         According 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)[6].

         On 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).

         On 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).

         On 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 at 7).

         On or 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, ...

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