United States District Court, N.D. Alabama, Southern Division
CANDACE E. HERREN, Plaintiff,
v.
LA PETITE ACADEMY, INC., Defendant.
MEMORANDUM OF OPINION
L.
Scott Coogler, United States District Judge
I.
Introduction
Plaintiff,
Candace Herren (“Herren”), who is white and was
born in 1965, brings this action against her former employer
Defendant, La Petite Academy, Inc. (“La Petite”).
On August 10, 2016, Herren filed suit against La Petite,
alleging that her termination violated the Family and Medical
Leave Act (“FMLA”). On May 5, 2017, Herren filed
another suit against La Petite, asserting claims under
various other federal statutes as well as Alabama state law.
The two cases were consolidated on May 26, 2017.
Presently
before the Court are La Petite's motion for summary
judgment (doc. 73) and motion to strike (doc.
93).[1]
For the reasons stated below, La Petite's motion for
summary judgment (doc. 73) is due to be granted and the
motion to strike (doc. 93) is due to be denied in part and
terminated as moot in part.
II.
Background[2]
La
Petite operates educational childcare centers throughout
Alabama. All childcare centers in Alabama are licensed and
regulated by the Alabama Department of Human Resources, Child
Care Services Division (“DHR”), which is
responsible for monitoring childcare centers for compliance
with DHR's Minimum Standards for Day Care Centers and
Nighttime Centers (“Minimum Standards”). DHR
periodically makes childcare licensing visits to childcare
centers, such as those operated by La Petite. Facilities not
in compliance with DHR's Minimum Standards may be issued
what is known as an Alabama Department of Human Resources
Child Care Minimum Standards Deficiency Report (“DHR
Deficiency Report”).
Herren
was employed with La Petite for thirty years. In 2013, Herren
began working as the director for La Petite's Grayson
Valley center. Previously, she had served for a time as the
director at La Petite's Montclair facility. In March
2015, Herren completed Family and Medical Leave Act
(“FMLA”) paperwork so she could take time off
work to receive chemotherapy treatments for ulcerative
colitis.[3] La Petite's Benefits Department
approved Herren's intermittent leave request for the
period of March 17, 2015 to March 17, 2016. During this time
period, Herren reported directly to PJ Kimball
(“Kimball”), La Petite's former district
manager. In March 2016, Herren began reporting to Felicia
Gist (“Gist”), who served as interim district
manager until August 2016. Herren complained to multiple
members of La Petite's management about Gist's
treatment of her. Herren claims that Gist, who is African
American, undermined Herren's authority by directing
questions about the Grayson Valley center to Herren's
African American assistant director Tiffany Hamilton
(“Hamilton”). Herren also testified that Gist
would ask her why she needed to go for chemotherapy
treatments and why she could not come back to work the same
day. According to Herren, although she would work a partial
day before going to her chemotherapy treatments, Gist would
mark her absent for the full eight hour work day.
On
December 17, 2015, an infant at La Petite's Brookwood
center became unresponsive during naptime and later died.
Following the Brookwood infant death, La Petite sent Cindy
Lehnhoff (“Lehnhoff”), Divisional VP of
Operations, Southeast Division, and other individuals from
its corporate headquarters to visit the Alabama centers. In
addition, Kimball sent the Alabama directors a reminder about
the DHR Minimum Standards with respect to sleeping infant
safety. In January 2016, La Petite developed a training
program for its Alabama center directors to address
compliance with DHR's requirements. Also, in January
2016, La Petite terminated the employment of Tyesha Hill, the
Brookwood center director after DHR issued several deficiency
reports following the infant's death.
On
January 14, 2016, DHR issued Herren's Grayson Valley
center a deficiency report, which identified four
deficiencies. These deficiencies included a finding that a
tarp on a sand table in the playground area created a hazard.
On January 21, 2016, DHR issued Grayson Valley another
deficiency report, which identified fourteen deficiencies.
This deficiency report identified several additional hazards
at the Grayson Valley facility, which included hazardous
substances not being kept under lock and key and the door
leading outside to the playground not being secured. Herren
admits that her facility received these deficiency reports.
However, she contends that, following the Brookwood incident,
DHR was visiting all centers in Alabama and submitting
multiple pages of deficiencies for each facility.
On
February 5, 2016, DHR found no deficiencies at Grayson Valley
and recommended that the center's license be renewed. On
February 29, 2016, La Petite issued Herren a disciplinary
action and performance improvement plan, which addressed the
DHR deficiencies found in January 2016. The plan, which
Herren signed, stated that: “I . . . understand that
failure to maintain or sustain acceptable levels of
performance, behavior, or conduct may result in further
action, up to and including separation of employment.”
(See Doc. 72-28 at 2.) Herren was also told to
write-up Hamilton for the DHR deficiencies. On April 5, 2016,
DHR again issued Herren a deficiency report for Grayson
Valley, which identified eight deficiencies. One of these
deficiencies was due to a baby falling asleep in a bouncer
seat. Two days later, on April 7, 2016, DHR issued Grayson
Valley another deficiency report, which noted five
deficiencies. La Petite placed Herren on administrative leave
on April 26, 2016. The next day, on April 27, 2016, Herren
submitted FMLA paperwork and requested FMLA leave from April
27, 2016 to June 24, 2016. That same day, La Petite's
Benefits Department emailed Gist about Herren's new leave
request.
Rhonda
Kirk (“Kirk”) is the La Petite employee who
conducted an investigation into Herren's employment.
During the course of this investigation, Kirk learned that
Herren had been on intermittent leave from March 2015 to
March 2016 and included this information in her notes.
Kirk's handwritten notes about Herren's termination
also have the number 51, Herren's age at the time of her
termination, circled in the upper-left hand corner. Moreover,
Herren testified that sometime after she submitted her April
27, 2016 FMLA leave request she discussed this request with
Kirk. On April 28, 2016, after visiting the Grayson Valley
center, Kirk made the recommendation that Herren be
terminated and that it be documented that Hamilton exercised
poor judgment during the DHR visits. This recommendation
includes a reference to a prior recommendation that Herren be
documented on a performance improvement plan and be issued a
final written warning. However, Herren was never issued a
final written warning, and on May 2, 2016, La Petite
terminated Herren's employment during a phone call
between Herren, Lehnhoff, and Kirk.
According
to several parents of Grayson Valley students, Gist explained
Herren's absence by stating that she was
“sick” and had to leave work “due to
medical issues.” (See Doc. 72-9 at 4-5.)
Herren testified that when she contacted one parent about a
potential job opportunity as a sitter that the parent
responded by stating that she thought Herren was too sick to
work. However, Herren admits that she ultimately decided not
to formally apply for the sitter position. Following
Herren's termination, Valerie Pugh, who is African
American and was born in 1969, was named temporary acting
director at Grayson Valley. On August 16, 2016, La Petite
hired Iris Adams, who is also African American and was born
in 1972, to serve as Grayson Valley's permanent director.
III.
Standard
Summary
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact[4] and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). A dispute is genuine if “the record taken as a
whole could lead a rational trier of fact to find for the
nonmoving party.” Hickson Corp. v. N. Crossarm Co.,
Inc., 357 F.3d 1256, 1260 (11th Cir. 2004). A genuine
dispute as to a material fact exists “if the nonmoving
party has produced evidence such that a reasonable factfinder
could return a verdict in its favor.” Greenberg v.
BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th
Cir. 2007) (quoting Waddell v. Valley Forge Dental
Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001)). The
trial judge should not weigh the evidence, but determine
whether there are any genuine issues of fact that should be
resolved at trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986).
In
considering a motion for summary judgment, trial courts must
give deference to the non-moving party by “view[ing]
the materials presented and all factual inferences in the
light most favorable to the nonmoving party.”
Animal Legal Def. Fund v. U.S. Dep't of Agric.,
789 F.3d 1206, 1213-14 (11th Cir. 2015) (citing Adickes
v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)).
However, “unsubstantiated assertions alone are not
enough to withstand a motion for summary judgment.”
Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529
(11th Cir. 1987). Conclusory allegations and “mere
scintilla of evidence in support of the nonmoving party will
not suffice to overcome a motion for summary judgment.”
Melton v. Abston, 841 F.3d 1207, 1219 (11th Cir.
2016) (per curiam) (quoting Young v. City of Palm Bay,
Fla., 358 F.3d 859, 860 (11th Cir. 2004)). In making a
motion for summary judgment, “the moving party has the
burden of either negating an essential element of the
nonmoving party's case or showing that there is no
evidence to prove a fact necessary to the nonmoving
party's case.” McGee v. Sentinel Offender
Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013).
Although the trial courts must use caution when granting
motions for summary judgment, “[s]ummary judgment
procedure is properly regarded not as a disfavored procedural
shortcut, but rather as an integral part of the Federal Rules
as a whole.” Celotex Corp. v. Catrett, 477
U.S. 317, 327 (1986).
IV.
Preliminary Matters
The
discovery disputes in this case have, at times, significantly
strained judicial resources. Thus, it comes as no surprise to
the Court that both parties have raised substantial
challenges to the other side's briefing of this summary
judgment motion. Herren seeks to strike La Petite's
initial brief's statement of facts for failure to comply
with the Court's Uniform Initial Order. (See
Doc. 69 in 2:17-cv-00739.) La Petite seeks to exclude from
evidence the deposition testimony of La Petite employees in
the separate case of Tammy Johnson v. La Petite Academy,
et al., No. 5:17-cv-1202-MHH
(“Johnson”). (See Doc. 93.)
Both sides also ask that the Court not consider various
evidentiary submissions that they say were not disclosed
during discovery. The Court will address each in turn.
Herren
states that she could not effectively respond to La
Petite's brief in support of its summary judgment motion
because of the way in which La Petite organized its statement
of facts. La Petite's factual statement consists of 25
separately-numbered paragraphs, and each paragraph contains
specific citations to the portion of La Petite's
evidentiary submissions that support those factual
statements. Relying on this Court's Uniform Initial Order
(doc. 13), Herren contends that La Petite impermissibly
provided its facts in a narrative format by bunching several
different statements together in one paragraph. Herren also
takes issue with La Petite's use of twenty-seven fact
intensive footnotes within its statement of facts.
The
Court agrees with Herren that La Petite's liberal use of
footnotes throughout its statement of facts appears to have
been done in an attempt to circumvent this Court's order
that La Petite's brief in support of its summary judgment
motion not exceed forty-five pages. (See Doc. 68.)
The Court, however, declines to strike this portion of La
Petite's brief. Herren has organized her response to La
Petite's statement of facts by pointing to the particular
portions she disputes. This mitigates any prejudice caused by
La Petite's formatting. Therefore, the Court will not
strike La Petite's statement of facts.
La
Petite argues that the Johnson deposition testimony
should be struck because it constitutes inadmissible hearsay.
According to La Petite, because former testimony may not be
presented as evidence at trial unless the requirements of
Federal Rule of Evidence 804(b)(1) have been satisfied, the
Court cannot consider deposition testimony from a different
case when ruling on this motion for summary judgment. This
argument, however, misunderstands the summary judgment
standard. While a party may not use inadmissible hearsay to
defeat summary judgment, courts can consider statements that
may be reduced to an admissible form at trial. See
Pritchard v. S. Co. Servs., 92 F.3d 1130, 1135 (11th
Cir. 1996). Here, the Johnson deposition testimony
may be reduced to an admissible form. While Rule 804(b)(1)
would likely preclude Herren from reading the
Johnson deposition testimony into the record at
trial, the La Petite employees who provided that testimony
could be called as witnesses. In this way, the
Johnson testimony is no different than the evidence
provided by the parties in the form of sworn affidavits or
testimony from depositions taken in this case. Therefore, the
Court will not strike these exhibits from the record.
Alternatively,
La Petite asks the Court to disregard any evidentiary
submissions from Johnson when ruling on its motion
for summary judgment, arguing these exhibits are irrelevant
and immaterial to this case. Because the Court has used its
discretion in making findings of fact in the development of
the record for the purposes of summary judgment, this section
of La Petite's motion to strike is moot. To the extent
that Herren has submitted evidence that is irrelevant to her
claims, those evidentiary submissions have been disregarded.
Finally,
both Herren and La Petite argue that certain evidentiary
submissions should be excluded because of the other
party's failure to disclose that evidence during
discovery. The Federal Rules of Civil Procedure require a
party to disclose the names of individuals likely to have
discoverable information that will be used to support a claim
or defense. Fed.R.Civ.P. 26(a)(1)(A). These initial
disclosures, plus responses to interrogatories, requests for
production, or requests for admission, must be supplemented
“if the party learns that in some material respect the
disclosure or response is incomplete or incorrect, and if the
additional or corrective information has not otherwise been
made known to the other parties during the discovery process
or in writing.” Fed.R.Civ.P. 26(e)(1)(A). Under Rule
37(c)(1), “[i]f a party fails to provide information or
identify a witness as required by Rule 26(a) or (e), the
party is not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a trial,
unless the failure was substantially justified or is
harmless.” Fed.R.Civ.P. 37(c)(1).
La
Petite contends that exhibits 16-23 and exhibits 25-27
attached to Herren's Response in Opposition should be
excluded because Herren did not identify these exhibits
during discovery. The Court finds that this argument lacks
merit. Herren did identify in her supplemental Rule 26
disclosures that she would likely use the deposition
transcripts from Johnson of Tammy Johnson, Lenhoff,
Brandy Werle, and Gist. (See Doc. 93-1 at 10.) It
appears to the Court that all of the exhibits objected to by
La Petite were exhibits presented at these depositions. Thus,
La Petite had sufficient notice that the information
contained within these exhibits might be used to support
Herren's claims, and Herren did not violate Rule 37(c)(1)
by submitting them into evidence. Nonetheless, as mentioned
above, to the extent that these exhibits are irrelevant to
Herren's claims, the Court has disregarded them.
Herren
seeks to exclude from evidence: (1) information about the
termination of Adrienne Mixon, an African American La Petite
director, and (2) Lehnhoff's testimony that three La
Petite executives provided input on Herren's termination.
This argument is also meritless. While this information was
not revealed in La Petite's initial interrogatory
responses, it was later disclosed in depositions taken in
this case. (See Doc. 72-21 at 39; Doc. 72-10 at 4.)
Thus, Herren had notice that this information may be used in
support of La Petite's summary judgment motion. And La
Petite did not violate the disclosure rules by using this
information to support its motion. See Fed. R. Civ.
P. 26(e)(1)(A) (supplemental disclosures only required if the
“corrective information has not otherwise been made
known to the other parties during the discovery
process”).
V.
Discussion
Herren
brings three types of claims against La Petite. First, she
claims that La Petite interfered with her FMLA leave and
terminated her employment in retaliation for applying for
leave under the FMLA. Second, she claims that La Petite
subjected her to discrimination on the basis of her race,
age, and disability. Third, Herren claims that the actions of
La Petite and its employees constituted various torts under
Alabama law. La Petite has moved for summary judgment on all
claims.[5]
A.
FMLA
The
FMLA allows qualifying employees to take up to twelve weeks
of unpaid leave during any twelve month period to deal with a
“serious health condition.” See 29 U.S.C. §
2612(a)(1)(D). It is unlawful for an employer to either
interfere with an employee's right to take leave for a
protected reason or to discriminate against an employee for
doing so. See 29 U.S.C. § 2615(a)(1), (2).
“To preserve the availability of these rights, and to
enforce them, the FMLA creates two types of claims:
interference claims, in which an employee asserts that his
employer denied or otherwise interfered with his substantive
rights under the [FMLA] . . . and retaliation claims, in
which an employee asserts that his employer discriminated
...