Herren v. La Petite Academy, Inc.

          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 ...