Opinion
CIVIL ACTION NO. 6:18-CV-00479-JDK
10-09-2019
Akia STANTON, Plaintiff, v. JARVIS CHRISTIAN COLLEGE, Defendant.
Katherine Elvira Britton, Law Office of Katherine Britton, Dallas, TX, for Plaintiff. Maurice Owens, Jr., Owens PLLC, Desoto, TX, Defendant.
Katherine Elvira Britton, Law Office of Katherine Britton, Dallas, TX, for Plaintiff.
Maurice Owens, Jr., Owens PLLC, Desoto, TX, Defendant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JOHN D. LOVE, UNITED STATES MAGISTRATE JUDGE
Before the Court are the parties' cross motions for summary judgment. (Doc. Nos. 42, 43.) The motions have been fully briefed. Upon consideration of the parties' arguments, the Court RECOMMENDS that Defendant's Motion (Doc. No. 42) be DENIED-IN-PART and GRANTED-IN-PART as set forth herein and that Plaintiff's Motion (Doc. No. 43) be DENIED .
Doc. Nos. 49, 50, 52, 53.
BACKGROUND
On September 10, 2018, Plaintiff Akia Stanton ("Plaintiff" or "Ms. Stanton") filed this action against Defendant Jarvis Christian College ("Jarvis" or "Defendant"). (Doc. No. 1.) Plaintiff alleged claims of (1) sex discrimination and retaliation pursuant to 42 U.S.C. § 2000e-(2)(a) ("Title VII"); (2) Family Medical Leave Act ("FMLA") interference; (3) FMLA retaliation; (4) libel; and (5) negligent supervision, training, and retention. (Doc. No. 1.) On February 13, 2019, the Court dismissed Plaintiff's claims for sexual harassment and negligence for failure to state a claim. (Doc. No. 25.) Thus, Plaintiff's remaining claims are: (1) Title VII discrimination; (2) Title VII retaliation; (3) FMLA interference; (4) FMLA retaliation; and (5) libel. Defendant moves for summary judgment on all claims. (Doc. No. 42.) Plaintiff moves for summary judgment on her FMLA interference claim. (Doc. No. 43.) This case arises from Plaintiff Akia Stanton's previous employment and termination as the women's basketball coach for Defendant Jarvis. Plaintiff was employed by Jarvis as the head women's basketball coach from August 2014 until her termination on June 29, 2018. (Doc. No. 1, at ¶ 14; Doc. No. 42-1, at 104, 106.) Regarding her Title VII claims, Plaintiff's claims arise from alleged disparities between the women's teams and men's teams at Jarvis. In her complaint, Plaintiff alleges that Jarvis has assistant coaches for men's baseball and basketball and that she was not provided an assistant coach. (Doc. No. 1, at ¶¶ 23, 24.) On February 13, 2018, Plaintiff filed a charge with the Equal Employment Opportunity Commission's ("EEOC") and alleged the following personal harm:
a. On Tuesday, November 28, 2018, I complained to Athletic Director, Mr. Bobby Ladner, about the disparities in the wages and overall quality of life between the Female basketball team and the Male basketball team, but nothing was done.
b. On Thursday, January 11, 2018 [sic], I complained to Ms. Cynthia Stancil, Chief of Staff, and Daphene Singleton, Director of Human Resources, regarding the disparities in the wages and overall quality of life between the Female basketball team and the Male basketball team, and about the way that Mr. Ladner speaks to me in a condescending manner, but nothing was done.
c. All Male Coaches are provided with Assistant Coaches while Female Coaches are not. In addition, members of the Men's basketball program are provided with more per diem funding than members of the Women's basketball program.
(Doc. No. 11-1, at 4.)
Jarvis received Plaintiff's EEOC charge on February 21, 2018. (Doc. No. 42-1, at 105; Doc. No. 1, at ¶ 55.) During her deposition, when questioned on the disparities, Plaintiff pointed to a difference in per diems between the women's and men's basketball team, and that the men's coach was never reprimanded for cursing while the other coaches were. (Doc. No. 42-1, Deposition of Akia Stanton ("Stanton Dep.") at 28:13–16; 28:18–29:6.)
Plaintiff's FMLA claims arise from her request for FMLA leave in June 2018. Plaintiff made a request for vacation leave on June 8, 2018 to take place from June 25, 2018 to June 29, 2018. (Doc. No. 43-3.) On June 8, 2018, Plaintiff saw a nurse practitioner, Yvette Levingston, and was excused from work until June 25, 2018. (Doc. No. 43-5.) Thereafter, a series of communications occurred between Plaintiff, Jarvis, and Plaintiff's medical provider regarding her FMLA request regarding a need for more information. See, e.g. , Doc. No. 43-8.
On June 15, 2018, Jarvis emailed Plaintiff requesting that she complete an attached FMLA medical certification form and have her physician also complete a portion of the form to get her FMLA leave approved. Id. at 3. Jarvis received a certification from Plaintiff's health care provider that same day. (Doc. No. 43-10.) The certification listed conditions of anxiety and depression, but did not identify any job functions Plaintiff is unable to perform, the duration of Plaintiff's incapacitation, whether Plaintiff needed follow-up treatment, and whether Plaintiff would be absent from work during flare-ups. Id. On June 18, 2018, Plaintiff emailed Jarvis inquiring on the status of her sick leave. (Doc. No. 43-8, at 3.) Dr. Singleton, Director of Human Resources at Jarvis, responded to Plaintiff's email on June 20, 2018 stating that the form was insufficient as it was too vague and ambiguous to allow Jarvis to make the determination of whether the request for time off should be honored. Id. at 2. Dr. Singleton's email attached a new blank FMLA medical certification form and requested that Plaintiff's provider provide more information and return the form within 7 days. Id. Plaintiff responded that same day asking for clarification on the portions that were too vague so that she could contact her doctor. Id. Dr. Singleton then emailed Dr. Newman, President of Jarvis, inquiring as to how they should advise Plaintiff. Id. Neither Plaintiff nor her provider supplied further information or a new form to Jarvis. Thereafter, on June 29, 2018, Plaintiff's leave was denied and Plaintiff was fired. (Doc. No. 42-1, at 106.)
Of further relevance to these claims and Plaintiff's libel claim, during this same time, Jarvis became aware that Plaintiff had removed items from her office. (Doc. No. 43-13.) According to statements by Jarvis employees, the items missing from the office were perhaps an office chair and maybe a couch. Id. At that time, however, Jarvis was not able to confirm whether the inventory belonged to Jarvis or whether it was Plaintiff's personal property. Id. According to the Director of Athletics, Bob Ladner, certain inventory was also missing from the basketball cages, including practice pads, basketball shoes, motivational kits and poster boards, an air pump, and a few basketballs. Id. Jarvis filed a police report over the incident and cites theft as the basis for her termination. (Doc. No. 42-1, at 106.)
LEGAL STANDARD
A motion for summary judgment should be granted if the record, taken as a whole, "together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56 ; Celotex Corp. v. Catrett , 477 U.S. 317, 323–25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Ragas v. Tennessee Gas Pipeline Co. , 136 F.3d 455, 458 (5th Cir. 1998). The Supreme Court has interpreted the plain language of Rule 56 as mandating "the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, on which that party will bear the burden of proof at trial." Celotex , 477 U.S. at 322, 106 S.Ct. 2548.
The party moving for summary judgment "must ‘demonstrate the absence of a genuine issue of material fact,’ but need not negate the elements of the nonmovant's case." Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (quoting Celotex , 477 U.S. at 323–25, 106 S.Ct. 2548 ). A fact is material if it might affect the outcome of the suit under the governing law. Merritt-Campbell, Inc. v. RxP Prods., Inc. , 164 F.3d 957, 961 (5th Cir. 1999). Issues of material fact are "genuine" only if they require resolution by a trier of fact and if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Merritt-Campbell, Inc. , 164 F.3d at 961. If the moving party "fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response." Little , 37 F.3d at 1075.
If the movant meets this burden, Rule 56 requires the opposing party to go beyond the pleadings and to show by affidavits, depositions, answers to interrogatories, admissions on file, or other admissible evidence that specific facts exist over which there is a genuine issue for trial. EEOC v. Texas Instruments, Inc. , 100 F.3d 1173, 1180 (5th Cir. 1996) ; Wallace v. Texas Tech. Univ. , 80 F.3d 1042, 1046–47 (5th Cir. 1996). The nonmovant's burden may not be satisfied by argument, conclusory allegations, unsubstantiated assertions, metaphysical doubt as to the facts, or a mere scintilla of evidence. Matsushita Elec. Indus. Co. v. Zenith Radio , 475 U.S. 574, 585, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Wallace , 80 F.3d at 1047 ; Little , 37 F.3d at 1075.
When ruling on a motion for summary judgment, the Court is required to view all justifiable inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita , 475 U.S. at 587, 106 S.Ct. 1348 ; Adickes v. S.H. Kress & Co. , 398 U.S. 144, 158–59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) ; Merritt-Campbell, Inc. , 164 F.3d at 961. However, the Court will not, "in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." McCallum Highlands, Ltd. v. Washington Capital Dus, Inc. , 66 F.3d 89, 92 (5th Cir. 1995), as modified , 70 F.3d 26 (5th Cir. 1995). Unless there is sufficient evidence for a reasonable jury to return a verdict in the opposing party's favor, there is no genuine issue for trial, and summary judgment must be granted. Celotex , 477 U.S. at 322–23, 106 S.Ct. 2548 ; Anderson , 477 U.S. at 249–51, 106 S.Ct. 2505 ; Texas Instruments , 100 F.3d at 1179.
DISCUSSION
Defendant moves for summary judgment on all of Plaintiff's remaining claims. (Doc. No. 42.) Because Plaintiff has also moved for summary judgment on her FMLA interference claim, the Court will begin with the claims that are unique to Defendant's motion.
A. Title VII Claims
Jarvis moves for summary judgment on Plaintiff's Title VII claims for sex discrimination and retaliation. (Doc. No. 42, at 11.) Plaintiff is proceeding with her Title VII claims under the McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green . 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ; Long v. Eastfield Coll. , 88 F.3d 300, 304–05 (5th Cir. 1996) ). Under this framework, a plaintiff has the initial burden of establishing a prima facie case of discrimination or retaliation. Id. Then, the burden shifts to the employer to introduce evidence of "a legitimate, nonretaliatory reason for the adverse employment action." Id. If the employer meets this burden, the "plaintiff then bears the ultimate burden of proving that the employer's proffered reason is not true but instead is a pretext for the real ... retaliatory purpose." Id. (quoting McCoy v. City of Shreveport , 492 F.3d 551, 557 (5th Cir. 2007) ).
a. Sex Discrimination Claim
As to Plaintiff's sex discrimination claim, Jarvis claims that Plaintiff cannot establish a prima facie case of discrimination and Jarvis has legitimate nondiscriminatory reasons for its action. Id. at 12. Plaintiff does not directly respond to Defendant's specific arguments regarding her sex discrimination claim; instead, she generically argues that she does not need to establish a prima facie case at this stage and need only show that there are genuine issues of material fact in dispute. (Doc. No. 50, at 4.) While this is true, Plaintiff nonetheless does need to come forward with responsive evidence that establishes a genuine dispute of material fact. See Williams v. Tarrant Cty. Coll. Dist. , 717 F. App'x 440, 448 (5th Cir. 2018) ("[o]vercoming summary judgment ‘requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine [dispute] for trial.’ "), quoting Giles v. Gen. Elec. Co. , 245 F.3d 474, 493 (5th Cir. 2001) ). Construing Plaintiff's submissions liberally, Plaintiff appears to provide some ad hoc citations to the record without any corresponding argument that may be relevant to these claims, as discussed below. (Doc. No. 50, at 7–15.) Plaintiff additionally moves to strike numerous portions of Jarvis's affidavits submitted in conjunction with its motion for summary judgment. Id.
At this time the Court finds no basis to strike Defendant's affidavits submitted in conjunction with its motion for summary judgment. Indeed, Plaintiff does not provide a basis to strike them other than to state they are insufficient to support or defeat summary judgment and generally object to the statements contained therein. To the extent the affidavits are considered and discussed herein, they are not the sole factor in determining whether summary judgment is appropriate. Moreover, to the extent Plaintiff has an objection to the facts or statements considered in the affidavits, the Court has considered that opposition in assessing the parties' disputes.
Title VII makes it an unlawful employment practice "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1). To establish a prima facie case of sex discrimination under Title VII, Plaintiff must show that: (1) she is a member of a protected class; (2) she was qualified for the position she sought; (3) she suffered an adverse employment action; and (4) others similarly situated but outside the protected class were treated more favorably. Alvarado v. Texas Rangers , 492 F.3d 605, 611 (5th Cir. 2007).
Defendant argues that Plaintiff cannot establish that she suffered an adverse employment action nor can she establish that others similarly situated outside of the protected class were treated more favorably. (Doc. No. 42, at 13.) As discussed above, Plaintiff does not specifically respond to these arguments, but does cite to some facts related this claim. (Doc. No. 50, at 8–9.)
As an initial matter, Plaintiff does not point to an adverse employment action that resulted from the alleged sex discrimination. It does not appear from her pleadings or her briefing filed in this case that she contends that she suffered some adverse employment action based upon the alleged disparities between the men's and women's athletic teams at Jarvis. Again, because Plaintiff does not directly respond to these arguments it is extremely difficult for the Court to discern what exactly her sex discrimination claims are. Similarly, looking to her allegations of unequal treatment, because Plaintiff does not directly respond to Defendant's arguments, she does not provide specific evidence in support of her prima facie case for a Title VII violation based upon sex discrimination. At best, Plaintiff disputes some facts related to this treatment.
Construing her response liberally, it appears Plaintiff contends that a male coach who curses all of the time was not reprimanded for cursing whereas she was, that an undue burden was placed on her to recruit a JV coach, and that the men's teams receive better treatment when traveling for games. (Doc. No. 50, at 8–9.) Defendant provides evidence that men and women coaches at Jarvis are paid the same salary (Doc. No. 42-1, at 105; Stanton Dep. at 59:13–17), that the per diem travel disparity between the men's and women's team alleged by Plaintiff was in fact the same per diem (Doc. No. 42-1, at 125–28), and that Plaintiff was aware that all coaches are required to have a Junior Varsity ("JV") team in order to have an assistant coach, with the exception of a single coach who handles multiple teams (Stanton Dep. 52:14–19; 54:1–25).
As to any claim of unequal pay, such a claim has not been alleged by Plaintiff, no evidence in response to summary judgment has been provided by Plaintiff, and indeed Defendant submitted evidence that Plaintiff conceded she has no evidence that she was paid less because she was a woman. Stanton Dep. at 59:13–17. As to the per diem disparity, during her deposition, Plaintiff testified that the men's team got a $90 per diem and the women's team got a $60 per diem for a two-day trip to Huston-Tillotson. Id. at 28:13–25. Jarvis provided the expense reports for these trips that show that each member of the women's team got a $30 meal per diem and each member of the men's team got a $30 meal per diem. (Doc. No. 42-1, at 125–28.) The only disparity appears to be from the total balance due to the men's team having more players than the women's team. Id. Plaintiff does not respond with any evidence to controvert the expense reports. Plaintiff only cites to a hand-written note from a meeting that suggests there may have been travel complaints made by girls on the basketball team regarding the safety of the bus. (Doc. No. 50-3.) This evidence does not directly controvert Defendant's expense reports or support the claim regarding the per diem disparity being made by Plaintiff.
Similarly, with respect to her claims regarding an assistant coach, Plaintiff does not allege a disparity between the men's and women's team. Instead, Plaintiff suggests that she was promised an assistant coach, testified that she knew she needed to have a JV team to get an assistant coach, and suggests that burdens were placed on her to prevent her from obtaining a JV team. (Doc. No. 50, at 8; Stanton Dep. at 52:14–19.) Again, these disputes are not material to Plaintiff's prima facie showing because she does not establish any disparity with respect to the men's team. Further, Plaintiff does not dispute the suggestion that a JV team was needed in order to have an assistant coach. See Stanton Dep. at 52:14–19.
With respect to Plaintiff's allegations that the men's coach swore all of the time, the men's coach submitted an affidavit that he was reprimanded in 2017-18 for his cursing. (Doc. No. 42-1, at 147.) Plaintiff simply states in her affidavit that at some point when she asked the men's coach whether he was counseled about it, he said he had not been. (Doc. No. 50-5, at ¶ 31.) These statements do not provide enough facts to demonstrate that Plaintiff was somehow treated differently because she was a female coach who swore. Moreover, as discussed above, Plaintiff has not pointed to any evidence of an adverse employment action that occurred from her cursing.
Finally, to the extent there are lingering facts that Plaintiff initially pled or claims she intended to pursue with respect to sex discrimination, no evidence has been cited to support these facts or claims. The Court has liberally construed Plaintiff's allegations and arguments in assessing her sex discrimination claims. To the extent a claim is not discussed herein, it is because Plaintiff has failed to properly raise the claim or point the Court to evidence in support of such a claim. Undoubtedly, the difficulty in discerning this information is compounded by Plaintiff's failure to directly respond to Jarvis's motion with respect to Plaintiff's Title VII claims. While Plaintiff is not required to prove her prima facie case at the summary judgment stage, Plaintiff does need to provide sufficient evidence to raise an issue for the trier of fact. Texas Instruments , 100 F.3d at 1180. As it stands on the summary judgment record before it, there is no triable issue of fact that remains with respect to any of Plaintiff's sex discrimination claims because Plaintiff has failed to point to evidence that would create a triable issue of fact with respect to her prima facie case. As such, and for the reasons discussed herein, the Court RECOMMENDS that Defendant's motion be GRANTED as to Plaintiff's claims for sex discrimination under Title VII. The Court RECOMMENDS that Plaintiff's Title VII sex discrimination claims be DISMISSED with prejudice.
b. Retaliation Claim
Jarvis similarly argues that Plaintiff cannot establish a prima facie case of Title VII retaliation and that it had a legitimate non-retaliatory reason to terminate Plaintiff. (Doc. No. 42, at 22.) Plaintiff once again does not respond to the specific Title VII retaliation arguments raised in Defendant's summary judgment motion.
To establish a prima facie case of retaliation under Title VII, a plaintiff must show that: (1) she participated in a Title VII protected activity, (2) she suffered an adverse employment action by her employer, and (3) there is a causal connection between the protected activity and the adverse action. Stewart v. Miss. Transp. Comm'n , 586 F.3d 321, 331 (5th Cir. 2009). Defendant argues that Plaintiff has not shown a causal connection with respect to her prima facie case for Title VII retaliation. (Doc. No. 42, at 22.) Specifically, Defendant contends that Plaintiff relies on the filing of her EEOC charge on February 13, 2018 as the protected activity that resulted in her termination on June 29, 2018. (Doc. No. 42, at 23.) Defendant points out that the only causal link that Plaintiff has suggested is the temporal proximity to Jarvis finding out about her EEOC charge on February 21, 2018 and Plaintiff's termination on June 29, 2018. Id. Again, Plaintiff does not respond to these arguments or provide any evidence of a causal link other than the suggested proximity of the events.
Defendant cites to Raggs to support summary judgment based on the lapse of time. (Doc. No. 42, at 23, citing Raggs v. Mississippi Power & Light Co. , 278 F.3d 463, 472 (5th Cir. 2002).) In Raggs , the plaintiff initiated litigation only five months prior to a refusal to rehire plaintiff. Id. at 471. The court concluded that the decision not to rehire was not a function of retaliation where the only evidence of retaliation was the five month period that had passed. Id. at 471–72. Similarly, here, the only evidence before the court is the four and half month period that passed after Plaintiff filed her EEOC charge before she was fired. In this case, the only evidence being a temporal proximity of four and a half months between events, the Court cannot find that triable issue of fact exists on the causal connection between Plaintiff's protected activity and her adverse employment action. For these reasons, the Court RECOMMENDS that Defendant's motion be GRANTED as to Plaintiff's Title VII retaliation claim. The Court RECOMMENDS that Plaintiff's Title VII retaliation claim be DISMISSED with prejudice.
B. Libel Claim
Defendant moves for summary judgment on Plaintiff's libel claim. (Doc. No. 42, at 33.) Defendant cites to Texas's qualified privilege for communication of wrongful acts to a law enforcement official. Id. Defendant contends that it conducted a reasonable investigation when it discovered that certain items were missing from the basketball cage and Plaintiff's office, and that it turned over footage to the authorities when it believed a crime had been committed. Id. at 34–35. Plaintiff again does not respond to Defendant's summary judgment arguments with respect to her libel claim. (Doc. No. 50.)
Because Plaintiff has failed to respond in opposition to this argument, the Court presumes that Plaintiff does not controvert this argument and has no evidence to offer in opposition. See L.R. CV-7(d) ("A party's failure to oppose a motion in the manner prescribed herein creates a presumption that the party does not controvert the facts set out by movant and has no evidence to offer in opposition to the motion."). On this basis alone, the Court finds that Jarvis's motion should be granted as to Plaintiff's libel claim. Moreover, here, Defendant has discharged its initial burden of invoking qualified privilege.
"In cases of libel and slander, Texas has long recognized at least ‘a qualified privilege’ for ‘the communication of alleged wrongful acts to an official authorized to protect the public from such acts.’ " Campbell v. City of San Antonio , 43 F.3d 973, 980 (5th Cir. 1995) (quoting Zarate v. Cortinas , 553 S.W.2d 652, 655 (Tex. Civ. App.—Corpus Christi 1977, no writ) ). Qualified privilege operates as an affirmative defense and, "the defendant bears the burden of proving privileged publication unless the plaintiff's petition affirmatively demonstrates privilege." Burbage v. Burbage , 447 S.W.3d 249, 254 (Tex. 2014) (citing Denton Pub. Co. v. Boyd , 460 S.W.2d 881, 884 (Tex. 1970) ). "If a defendant establishes the privilege, the burden shifts to the plaintiff to prove that the defendant made the statements with actual malice. Actual malice, in the defamation context, means ‘the making of a statement with knowledge that it is false, or with reckless disregard of whether it is true.’ Qualified privilege presents a question of law when the statements at issue employ unambiguous language and where the facts and circumstances of publication are undisputed." Id. (internal citations omitted).
Plaintiff's allegations of libel relate to Jarvis's report of an alleged theft based on Jarvis's belief that Plaintiff took items from school property. (Doc. No. 1, at ¶ 120.) Because these allegations relate to reporting an alleged crime, Jarvis has invoked the affirmative defense of qualified privilege. (Doc. No. 42, at 33.) Plaintiff has provided no response and has not identified any evidence of actual malice. While the court permitted this claim to proceed at the motion to dismiss stage because Plaintiff had alleged actual malice, allegations are insufficient at the summary judgment stage. See Williams , 717 F. App'x at 448 (5th Cir. 2018) ("[o]vercoming summary judgment ‘requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine [dispute] for trial.’ "), quoting Giles v. Gen. Elec. Co. , 245 F.3d 474, 493 (5th Cir. 2001) ). Plaintiff must come forward with some evidence to support her allegation of actual malice to survive summary judgment. Id. She has failed to do so here. Accordingly, the Court RECOMMENDS that Defendant's motion be GRANTED as to Plaintiff's libel claim. The Court RECOMMENDS that Plaintiff's libel claim be DISMISSED with prejudice.
C. FMLA Claims
As discussed above, Plaintiff has alleged a FMLA interference claim and a FMLA retaliation claim. Both Defendant and Plaintiff have filed motions seeking summary judgment on Plaintiff's FMLA interference claim. (Doc. Nos. 42, 43.) Plaintiff seeks a judgment that she has undisputedly proven her FMLA interference claim (Doc. No. 43), and Defendant seeks summary judgment on the FMLA interference claim because it contends Plaintiff cannot establish she was entitled to FMLA leave (Doc. No. 42). Defendant also moves for summary judgment on Plaintiff's FMLA retaliation claim. (Doc. No. 42, at 31–35.) The Court will turn first to the FMLA retaliation claim raised solely in Defendant's motion.
a. FMLA Retaliation
As an initial matter, Plaintiff contends that a mixed-motive analysis applies to her FMLA retaliation claim. (Doc. No. 50, at 16.) Under the mixed-motive burden-shifting framework, Plaintiff must first establish a prima facie case of FMLA retaliation. Ion v. Chevron USA, Inc. , 731 F.3d 379, 390 (5th Cir. 2013). If Plaintiff establishes her prima facie case of retaliation, the burden shifts to Defendant to articulate a legitimate nondiscriminatory reason for her termination. Id. at 390–91. If Defendant meets its burden, then the burden shifts back to Plaintiff to offer sufficient evidence to create a genuine issue of fact that Defendant's nondiscriminatory reasons, although true, are only some of the reasons for its conduct, another of which was discrimination. Id. Essentially, Plaintiff must offer evidence to show that the exercise of her FMLA rights was a motivating factor in her termination. Id. Finally, the burden again shifts to the employer to prove that it would have taken the same action despite its discriminatory animus. Id. At the summary judgment stage, Defendant must provide sufficient evidence to establish as a matter of law that it would have fired Plaintiff despite her taking leave under the FMLA. Id. Defendant argues that Plaintiff cannot establish a prima facie case of retaliation and that Defendant had a legitimate, nondiscriminatory reason to terminate Plaintiff. (Doc. No. 42, at 31.) Plaintiff argues that she can establish a prima facie case and that Defendant's reason for her termination is pretextual. (Doc. No. 50.)
It is unclear whether Plaintiff's assertion in her briefing that a mixed-motive analysis applies is her concession that retaliation was not the only reason for firing Plaintiff. For purposes of this motion, the Court will accept Plaintiff's mixed-motive suggestion because, for the reasons explained herein, summary judgment would be improper under either the mixed-motive analysis or under the McDonnell Douglas burden-shifting framework as factual disputes remain with respect to Plaintiff's prima facie case and Defendant's proffered nondiscriminatory reason for termination.
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i. Prima Facie Case
To establish a prima facie retaliation case under the FMLA, a plaintiff must show that (1) she was protected under the FMLA; (2) she suffered an adverse employment action; and (3) the adverse employment action was taken because she sought protection under the FMLA. Ion , 731 F.3d at 390. Specifically, as to her prima facie case, Defendant argues that Plaintiff cannot show that she was protected under the FMLA or that her termination was the result of her seeking protection under the FMLA. (Doc. No. 42, at 31–32.) Plaintiff contends triable issues of fact exist on these elements. (Doc. No. 50.)
1. FMLA protection
As to the first requirement, Defendant argues that Plaintiff was not protected under the FMLA because she cannot show she was incapacitated. (Doc. No. 42, at 31.) In support, Defendant cites to Mauder . Id. citing Mauder v. Metro. Transit Auth. of Harris Cty., Tex. , 446 F.3d 574, 578 (5th Cir. 2006). In Mauder , plaintiff sought relief from tardiness and ultimately FMLA based on his conditions of diabetes and diarrhea. Id. at 577–79. Plaintiff was asked by his employer to provide more information regarding his medical condition, but refused to provide it, and the Fifth Circuit ultimately found that plaintiff had "not shown that he was incapacitated or that his condition prevented him from going to work." Id. at 578, 581. Plaintiff contends that Mauder is distinguishable because, in this case, Plaintiff did cooperate by filling out her medical certification provided by Jarvis, making Jarvis aware of her serious condition. (Doc. No. 50, at 22.) Plaintiff further argues that she has shown she was incapacitated and argues that Jarvis failed to cooperate with her in the FMLA process. Id.
The Court agrees this case is distinguishable from Mauder . In this case, there is no dispute that Plaintiff initiated seeking FMLA and had her provider complete the medical certification form provided by Jarvis. (Doc. No. 50-7, at 7–12.) Rather, the parties dispute whether Plaintiff's certification was sufficient and contest the facts regarding where the communication in this case broke down between employer and employee.
The Fifth Circuit has interpreted FMLA as "a statute that requires cooperation from the employer and employee." Mauder , 446 F.3d at 582. Plaintiff requested sick leave on June 8, 2018, due to her doctor's statement that she should be excused from work. (Doc. Nos. 43-3; Doc. No. 50-7, at 7.) On June 12, 2018, Plaintiff contacted Dr. Singleton at Jarvis requesting an update on her sick and vacation leave. (Doc. No. 43-8, at 4.) On June 15, 2018, Dr. Singleton responded to Plaintiff stating that additional information is needed to approve Plaintiff's leave request and sent Plaintiff an FMLA medical certification form to have her physician complete and return to Jarvis. Id. at 3. On that same day, Defendant received a copy of Plaintiff's FMLA medical certification from Plaintiff's provider as requested. (Doc. No. 43-10.) Plaintiff then followed up on Monday June 18, 2018, informing Dr. Singleton that the form was faxed over on Friday and requesting an update on her sick and vacation leave. (Doc. No. 43-8, at 3.) Dr. Singleton responded on June 20, 2018, stating that the "form is insufficient" as it is "too vague and ambiguous" to make a determination. Id. at 2. Dr. Singleton also reattached a blank FMLA medical certification form stating that the form should be returned within 7 days. Id. Plaintiff responded the following day stating "[w]ill you please provide me with a copy of the form that was faxed over? Can you tell me what part is too vague so I can contact my doctor?" Id. Dr. Singleton then forwarded Plaintiff's email to Dr. Newman inquiring "[s]hould I have her [sic] request a copy of what was sent to us from doctor's office, and can we just stay that more information is needed?" Id.
Here, unlike Mauder , the record suggests that Plaintiff was cooperating or at least attempting to cooperate and comply with Jarvis's request with respect to her FMLA leave. Indeed, Plaintiff turned in her medical certification as requested, contacted Defendant for updates, and requested that Defendant identify was what insufficient about her form so she that could contact her provider. (Doc. No. 43-8.) Defendant cites to evidence, including Plaintiff's wage claim, to show that Plaintiff was refusing to provide the information requested because she would not provide a HIPAA release form to her provider. (Doc. No. 42, at 32, citing Stanton Dep. at 68:3–13, Ex. 25.) Plaintiff contends that her provider stated they did not need a HIPAA release form and that she was in fear of providing information because of possible termination. Id. ; Doc. No. 50-5, at ¶ 54. Ultimately, these are material factual disputes regarding Plaintiff's protection, as there are facts going both ways regarding the FMLA leave request process. Further, as discussed in more detail below with respect to Plaintiff's FMLA interference claim, the record before the Court does not establish that Defendant ever provided Plaintiff with specific information regarding the stated deficiencies in her medical certification when Plaintiff requested this information so that she could contact her provider. Moreover, it is not apparent that a HIPAA release was necessary in order for Plaintiff to cure her deficiencies had they been specifically identified for her by Jarvis.
Moreover, Plaintiff has pointed to evidence to create a triable issue of fact as to whether she was incapacitated. FMLA provides entitlement to protected leave due to "a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). The regulations define a "serious health condition" entitling an employee to FMLA leave as "an illness, injury, impairment or physical or mental condition that involves inpatient care...or continuing treatment by a health care provider..." 29 C.F.R. § 825.113. The regulations therefore also define "incapacity" as the "inability to work...due to the serious health condition, treatment therefore, or recovery therefrom." Id.
Plaintiff contends that her provider's certification of her conditions of anxiety and depression, along with the requirement for prescription medication, and a follow up with psychology, constitute a serious health condition that entitled her to leave. (Doc. No. 50, at 19–20.) Specifically, Plaintiff provides evidence of her doctor's note excusing her from work from June 8, 2018 to June 25, 2018. (Doc. No. 50-7, at 7.) Plaintiff provides the medical certification from her doctor that lists her conditions as "Anxiety" and "Depression," notes that medication has been prescribed, and refers her to psychology for follow up evaluation and treatment. (Doc. No. 43-10.) Plaintiff has further submitted an affidavit that she had been "crying nonstop" and the nurse practitioner gave her a prescription that would take some time to take effect and therefore released her from work. (Doc. No. 50-5, at ¶ 45.) Plaintiff also notes that she was referred to psychology and that the appointment was made for July after her medication was supposed to have taken effect. Id. Plaintiff further submits her medical records showing her diagnosis of depression and prescription of medications. (Doc. No. 50-8.) Defendant argues that Plaintiff did not follow up with suggested medical care and that Plaintiff was not incapacitated because she took items from Jarvis while she was allegedly incapacitated and did not apply for FMLA at her new employment, which she started two days after being terminated from Jarvis. (Doc. No. 42, at 36.) Defendant further argues that the record reflects that Plaintiff experienced her symptoms since September 2017, but worked at Jarvis for over 9 months since that time. (Doc. No. 52, at 17.) These arguments, supported by contested evidence in the record, raise material factual disputes that are not appropriate for resolution on summary judgment. Ultimately, the Court finds the evidence provided by Plaintiff reasonably creates a triable issue of fact regarding Plaintiff's incapacity and protection under the FMLA.
2. Causation
Defendant further argues that it is entitled to summary judgment because Plaintiff cannot show she was terminated because she sought protection under the FMLA. (Doc. No. 42, at 32–33.) Defendant provides very little argument other than to suggest it was completely cooperative in the FMLA process. Id. However, Defendant fails to address the undisputed evidence that Plaintiff's FMLA leave was denied the same day she was fired, a mere 20 days after her initial request for leave. (Doc. No. 42-1, at 106.) "When evaluating whether the adverse employment action was causally related to the FMLA protection, the court shall consider the ‘temporal proximity’ between the FMLA leave, and the termination." Mauder , 446 F.3d at 583. Plaintiff need not show that her protected activity is the only cause of her termination, but must show that the protected activity and the adverse employment action are not completely unrelated. Id. Here, Plaintiff raises the temporal proximity and argues that Dr. Newman made the decision to terminate Plaintiff at least in part because he did not approve her FMLA leave and determined her employment abandoned. (Doc. No. 50, at 26, citing Doc. No. 43-1, Deposition of Dr. Lester Newman ("Newman Dep.") at 44:22–25, 45:1–25, 46: 9–25, 63:3–18.) Given this evidence, and the temporal proximity of Plaintiff's termination to her engagement in protected activity, a reasonable jury could infer that Plaintiff was terminated because she sought FMLA leave. Accordingly, Plaintiff has sufficiently raised an issue of material fact with respect to causation such that summary judgment is not warranted.
ii. Nondiscriminatory Reason for Termination and Pretext
As discussed above, once the complaining party establishes a prima facie case of deprivation of a substantive right to reinstatement under the FMLA, the burden shifts to the defendant to Defendant to articulate a legitimate nondiscriminatory reason for her termination. Ion , 731 F.3d at at 390–91. Thereafter, the burden shifts back to the plaintiff to provide sufficient evidence so show that the reasoning presented by the defendant is a pretext for retaliation or that the employer's reason, although true, is only one reason for its conduct, the other of which is discrimination. Id.
Here, Defendant argues that it had a legitimate nondiscriminatory reason for firing Plaintiff based upon a video that showed Plaintiff taking shoes and equipment from the team's cage, destroying Jarvis files, and emptying her office. (Doc. No. 42, at 24, citing Doc. No. 42-1, at 122.) Defendant contends that Plaintiff also removed Jarvis recruiting files from her computer. Id. at 160. Defendant contends that the "sole reason" Plaintiff was fired was for "stealing and destroying Jarvis property." (Doc. No. 42, at 6.) Plaintiff contests this evidence and argues that Mr. Ladner did not create an inventory report for June 2018 and the only thing Defendant ultimately concluded was that Plaintiff removed her own property. (Doc. No. 50-2; Newman Dep. at 76:19–77:6; Doc. No. 43-13.) Plaintiff also points out that Defendant never contacted her for an explanation regarding the alleged stolen property. (Doc. No. 50, at 17.) Plaintiff contends this conduct goes against Defendant's disciplinary policy. (Doc. No. 50-9.)
While Defendant has provided some evidence to show it had a nondiscriminatory reason for firing Plaintiff due to alleged theft, ultimately Plaintiff has provided enough evidence to raise a question of fact regarding the truthfulness of the proffered explanation to suggest the reason may have been pretext, or that, even if true, it was not the sole reason Plaintiff was fired. For these reasons, the Court finds that fact issues exist that make render judgment as a matter of law at the summary judgment stage inappropriate.
Because questions of material fact remain with respect to Plaintiff's prima facie case for discrimination and Defendant's proffered nondiscriminatory reason for terminating Plaintiff, the Court RECOMMENDS that Defendant's motion be DENIED as to Plaintiff's FMLA retaliation claim.
b. FMLA Interference
The parties have filed cross motions on Plaintiff's FMLA interference claim. (Doc. Nos. 42, 43.) Defendant argues that it is entitled to summary judgment on Plaintiff's FMLA interference claim because Plaintiff failed to cure deficiencies with her medial certification and she cannot show harm from not receiving individualized notice. (Doc. No. 42, at 25–30.) Plaintiff contends she is entitled to summary judgment on her FMLA interference claim because it is undisputed that Defendant interfered with her FMLA leave by failing to respond to her inquiries and she was prejudiced by Defendant's failure to meet its obligations to her as an FMLA covered employee. (Doc. No. 43, at 10–11.) Essentially, the parties' dispute revolves around whether Plaintiff complied with regulations in submitting her medical certification, and whether Defendant complied with regulations in providing Plaintiff notice.
FMLA's interference provision makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise," any substantive FMLA right. 29 U.S.C. § 2615(a)(1) ; see also Haley v. Alliance Compressor LLC , 391 F.3d 644, 649 (5th Cir. 2004). To establish a prima facie interference case under the FMLA, a plaintiff must show that (1) she was an eligible employee; (2) the defendant was an employer subject to the FMLA's requirements; (3) the plaintiff was entitled to leave; (4) the plaintiff gave proper notice of her intention to take FMLA leave; and (5) the defendant denied the plaintiff the benefits to which she was entitled under the FMLA. Lanier v. Univ. of Tex. Sw. Med. Ctr. , 527 F. App'x. 312, 316 (5th Cir. 2013).
The parties do not dispute that Plaintiff was an eligible employee and that Defendant was an employer subject to the FMLA's requirements. As discussed above, the parties dispute whether Plaintiff was entitled to leave. Plaintiff requested sick leave on June 8, 2018, due to her doctor's statement that she should be excused from work. (Doc. Nos. 43-3; Doc. No. 50-7, at 7.) On June 12, 2018, Plaintiff contacted Dr. Singleton at Jarvis requesting an update on her sick and vacation leave. (Doc. No. 43-8, at 4.) On June 15, 2018, Dr. Singleton responded to Plaintiff stating that additional information is needed to approve Plaintiff's leave request and sent Plaintiff an FMLA medical certification form to have her physician complete and return to Jarvis within 7 days. Id. at 3. On that same day, Defendant received a copy of Plaintiff's FMLA medical certification from Plaintiff's provider as requested. (Doc. No. 43-10.) Plaintiff then followed up on Monday June 18, 2018, informing Dr. Singleton that the form was faxed over on Friday and requesting an update on her sick and vacation leave. (Doc. No. 43-8, at 3.) Dr. Singleton responded on June 20, 2018, stating that the "form is insufficient" as it is "too vague and ambiguous" to make a determination. Id. at 2. Dr. Singleton also reattached a blank FMLA medical certification form stating that the form should be returned within 7 days. Id. Plaintiff responded the following day stating "[w]ill you please provide me with a copy of the form that was faxed over? Can you tell me what part is too vague so I can contact my doctor?" Id. Dr. Singleton then forwarded Plaintiff's email to Dr. Newman inquiring "[s]hould I have her [sic] request a copy of what was sent to us from doctor's office, and can we just stay that more information is needed?" Id. Plaintiff ultimately did not receive a response specifying what information was insufficient other than that certain areas were left "unknown" and more information was needed as to those portions. (Doc. No. 43-11, at 2.) Plaintiff did not resubmit a new medical certification and Plaintiff was terminated on the same day her FMLA leave was denied. (Doc. No. 42-1, at 106.)
Plaintiff first argues that Jarvis failed to comply with FMLA regulations by failing to provide her a designation notice and eligibility notice within 5 days of acquiring knowledge that Plaintiff's requested leave may be for an FMLA qualifying reason. (Doc. No. 43, citing 29 C.F.R. § 825.300(d) and 29 C.F.R. § 825.300(b).) Plaintiff contends that failing to provide these notices constitutes FMLA interference. Id. citing 29 U.S.C. § 2615(a)(1). As to the eligibility notice claim, Defendant argues that there is no question that Plaintiff received notice because she was provided the FMLA medical certification form. (Doc. No. 49, at 20.) Defendant responds to the designation notice by citing the regulation and noting that a designation notice is not required until the employer has sufficient information to determine if leave will be designated FMLA. (Doc. No. 49, at 20–21, citing 29 C.F.R. § 825.300(d).) Defendant further argues that regardless of notice, Plaintiff hasn't alleged any harm. (Doc. No. 49, at 20–23.)
As to the designation and eligibility notices, questions of fact remain regarding interference. While Plaintiff submitted her sick leave request based upon her doctor's note on June 8, 2018, that note simply stated "Akia Stanton was seen in my clinic on 6/8/2018. She should be excused from work today and until June 25th 2018". (Doc. Nos. 43-3; Doc. No. 50-7, at 7.) Perhaps assessing that the leave could be FMLA qualifying leave, Jarvis then emailed Plaintiff the FMLA medical certification form on June 15, 2018. (Doc. No. 43-8, at 3.) Although this notice was 2 days late based upon receipt of Plaintiff's initial request, given the brevity of Plaintiff's initial letter, there is a question of fact as to whether Defendant ultimately timely notified Plaintiff of her FMLA eligibility. The facts further suggest that Plaintiff did not understand how the FMLA process worked and what was required of her or her medical provider. Stanton Dep. at 71:3–17. Thus, there is also a question as to whether Jarvis's provision of the medical certification form was sufficient to satisfy its notice obligation under the regulations.
Similarly, as to the designation notice, the parties dispute whether the information provided to Defendant was sufficient. While Plaintiff's medical certification was arguably insufficient, it is unclear whether Jarvis ever properly advised her of the specific deficiencies on her form so that she could cure them. Plaintiff claims these failures harmed her because she was denied the opportunity to return to work and clarify other misunderstandings related to her taking her property out of the school. (Doc. No. 43, at 11.) Plaintiff also argues that because Plaintiff was denied her FMLA leave in the same notice of her termination without being provided the 15-day window of time to complete provide a complete medical certification, she was injured. (Doc. No. 50, at 27–28.) Plaintiff contends that these failures prejudiced her. The Court agrees that Plaintiff has raised a question of fact regarding whether she was harmed by Defendant's actions because a reasonable juror could infer that had she been provided more information and an opportunity to cure, she would not have been denied FMLA, and had she been allowed to return to work to provide statements regarding the alleged theft, she may not have been terminated.
Plaintiff also argues that Defendant's failure to respond to her inquiry as to the status of her FMLA leave constitutes interference. (Doc. No. 43, at 11.) Ultimately, based on the cross-motions, the parties dispute whether Defendant complied with 29 C.F.R. § 825.305(c). Defendant claims that Plaintiff's medical certification was insufficient, that she was notified and given 7 days to cure, and failed to cure. (Doc. No. 42-1, at 105.) Plaintiff contends that Defendant failed to comply with the regulations because it did not adequately inform her what additional information was necessary to make the certification complete and sufficient. (Doc. No. 50, at 24–26.)
Upon receipt of her insufficient certification, Defendant was required to (1) advise Plaintiff that her certification was insufficient, (2) state in writing what additional information was necessary to make it sufficient, and (3) provide her with an opportunity to cure before denying her request for leave. See 29 C.F.R. § 825.305(c). "Just like employers must advise their employees of their rights under the Act, 29 C.F.R. § 825.300, they also must advise their employees of deficiencies in their medical certifications and provide them with an opportunity to cure, id. § 825.305(c). These modest burdens imposed on employers help ensure that employees are equipped with at least basic information about the Act's requirements and have an opportunity to exercise their rights in a meaningful way." Hansler v. Lehigh Valley Hosp. Network , 798 F.3d 149, 157–58 (3d Cir. 2015) The regulations further provide that "any violations of the Act or of these regulations constitute interfering with, restraining, or denying the exercise of rights provided by the Act." See 29 C.F.R. § 825.220(b).
Here, when Plaintiff was notified her form was insufficient and given a new form to complete in 7 days, she responded stating "[w]ill you please provide me with a copy of the form that was faxed over? Can you tell me what part is too vague so I can contact my doctor?" (Doc. No. 43-8, at 2.) It is unclear that Jarvis ever responded to her in any way that satisfied the requirements of 29 C.F.R. § 825.305(c). Dr. Singleton responded to Plaintiff stating that she was out of town and did not have access to the fax, suggesting it could be requested from Ms. Levingston's office, and stating "[s]pecifics need to be provided particularly in the areas where she answered the questions by stating ‘unknown,’ ‘as determined by,’ and/or ‘to be determined by.’ " (Doc. No. 43-11, at 2.) While Plaintiff responded to this email stating she had notified her doctor of these specifics, Plaintiff never received the fax to know what specifically her provider had failed to sufficiently answer in the manner described despite her request for the fax. Although Jarvis may have had further correspondence with Plaintiff's medical provider, the record contains disputes regarding whether it adequately communicated with Plaintiff. Indeed, after receiving Plaintiff's request for the fax, Dr. Singleton's immediate inquiry to Dr. Newman inquiring "[s]hould I have her [sic] request a copy of what was sent to us from doctor's office, and can we just stay that more information is needed?" provides for an inference that Defendant may not have been willing to provide Plaintiff with what she was requesting. (Doc. No. 43-8, at 2.) At the very least, this raises questions as to whether Jarvis satisfied its requirement to inform Plaintiff in writing of the specific deficiencies in her medical certification. For example, a question exists whether Plaintiff should have reached out to Ms. Levingston's office for further clarification at that point or whether Dr. Singleton should have sent the fax, or at the least more specific information of the deficiencies, upon Plaintiff's initial request. The resolution of these material questions are factual in nature and must be resolved by the jury. The court cannot subsume the role of fact finder and decide the question of interference based on the summary judgment record before it.
Finally, although Jarvis claims that Plaintiff was never going to comply because she would not provide a HIPAA release to her provider, that question is ultimately irrelevant to whether Jarvis properly notified Plaintiff, and indeed is disputed as discussed above with respect to Plaintiff's FMLA retaliation claim.
For the reasons discussed herein, the Court RECOMMENDS that Plaintiff's motion for partial summary judgment on her FMLA interference claim be DENIED and RECOMMENDS that Defendant's motion for summary judgment on Plaintiff's FMLA interference claim be DENIED .
CONCLUSION
For the reasons stated herein, the Court RECOMMENDS that Defendant's motion (Doc. No. 42) be GRANTED as to Plaintiff's claims for Title VII discrimination, Title VII retaliation, and libel, and that these claims be DISMISSED with prejudice, and DENIED as to Plaintiff's claims for FMLA retaliation and interference. The Court RECOMMENDS that Plaintiff's partial motion for summary judgment (Doc. No. 43) be DENIED .
Within fourteen (14) days after receipt of the Magistrate Judge's Report, any party may serve and file written objections to the findings and recommendations contained in the Report. A party's failure to file written objections to the findings, conclusions and recommendations contained in this Report within fourteen (14) days after being served with a copy shall bar that party from de novo review by the district judge of those findings, conclusions and recommendations and, except on grounds of plain error, from appellate review of unobjected-to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United States Auto. Ass'n , 79 F.3d 1415, 1430 (5th Cir. 1996).