Opinion
Case No. 1:17-CV-201 (LAG)
03-19-2020
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. PHOEBE PUTNEY MEMORIAL HOSPITAL, INC., Defendant.
Steven Andrews Wagner, Lakisha Duckett, Equal Employment Opportunity Commission, Robyn M. Flegal, EEOC, Atlanta, GA, for Plaintiff. Alfreda Lynette Sheppard, Louis E. Hatcher, Albany, GA, for Defendant.
Steven Andrews Wagner, Lakisha Duckett, Equal Employment Opportunity Commission, Robyn M. Flegal, EEOC, Atlanta, GA, for Plaintiff.
Alfreda Lynette Sheppard, Louis E. Hatcher, Albany, GA, for Defendant.
ORDER
LESLIE A. GARDNER, JUDGE
Before the Court is Defendant's Motion for Summary Judgment (Doc. 32). For the reasons set forth below, the Motion is DENIED .
PROCEDURAL BACKGROUND
On November 1, 2017, Plaintiff, the Equal Employment Opportunity Commission (EEOC), filed this action on behalf of Complainant Wendy Kelley against Defendant Phoebe Putney Memorial Hospital, Inc. (Phoebe), Kelley's former employer. (Doc. 1.) The EEOC alleges that Phoebe discriminated against Kelley when it discharged her because of a disability, or perceived disability, and in retaliation for requesting a reasonable accommodation, in violation of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq. (Id. at 1.) As remedy, the EEOC seeks injunctive and programmatic relief, back pay and front pay, reinstatement, compensatory and punitive damages, and costs. (Id. at 8–10.) On February 25, 2019, Phoebe filed the instant Motion. (Doc. 32.) Following the EEOC's Response (Doc. 45) and Phoebe's Reply (Doc. 49), the Motion is now ripe for review. See M.D. Ga. L.R. 7.3.1(A).
LEGAL STANDARD
Federal Rule of Civil Procedure 56 allows a party to move for summary judgment when the party contends that no genuine issue of material fact remains and the party is entitled to judgment as a matter of law. "Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Maddox v. Stephens , 727 F.3d 1109, 1118 (11th Cir. 2013). "A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor." Chapman v. AI Transp. , 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of Miami , 52 F.3d 918, 921 (11th Cir. 1995) ).
"An issue of fact is ‘material’ if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case." Allen v. Tyson Foods, Inc. , 121 F.3d 642, 646 (11th Cir. 1997) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "An issue of fact is ‘genuine’ if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party." Felts v. Wells Fargo Bank, N.A. , 893 F.3d 1305, 1311 (11th Cir. 2018) (quoting Hickson Corp. v. N. Crossarm Co., Inc. , 357 F.3d 1256, 1260 (11th Cir. 2004) ). On a motion for summary judgment, the Court must view all evidence and factual inferences drawn therefrom in the light most favorable to the nonmoving party and determine whether that evidence could reasonably sustain a jury verdict in its favor. See Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; McGee v. Sentinel Offender Servs., LLC , 719 F.3d 1236, 1242 (11th Cir. 2013). The Court shall, however, "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. P. 56(a).
The movant bears the initial burden of showing, by reference to the record, that there is no genuine issue of material fact. Shaw v. City of Selma , 884 F.3d 1093, 1098 (11th Cir. 2018). The movant can meet this burden by presenting evidence showing that there is no genuine dispute of material fact or by demonstrating that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. See Celotex , 477 U.S. at 322–24, 106 S.Ct. 2548 ; McGee , 719 F.3d at 1242. Local Rule 56 further requires that "documents and other record materials relied upon by [the moving party] be clearly identified for the court." M.D. Ga. L.R. 56. "Material facts not supported by specific citation to particular parts of materials in the record and statements in the form of issues or legal conclusions (rather than material facts) will not be considered by the court." Id.
"When that burden has been met, the burden shifts to the nonmovant ... to go beyond the pleadings and to present competent evidence in the form of affidavits, answers to interrogatories, depositions, admissions and the like, designating specific facts showing a genuine issue for trial." Lamar v. Wells Fargo Bank , 597 F. App'x 555, 556–57 (11th Cir. 2014) (citations omitted). "All material facts contained in the movant's statement which are not specifically controverted by specific citation to particular parts of materials in the record shall be deemed to have been admitted, unless otherwise inappropriate." M.D. Ga. L.R. 56; see also Mason v. George , 24 F. Supp. 3d 1254, 1260 (M.D. Ga. 2014).
FACTS
I. Kelley's Application, Hiring, and Job Duties
In July 2015, Wendy Kelley applied for a job as a medical records analyst (MRA) at Phoebe. (Doc. 32-2 ¶ 4; Doc. 45-24 ¶ 4; Doc. 32-6 at 1.) As part of her application, Kelley completed a survey which had her respond "I will not," "rather not," "not 1st choice," "doesn't make a difference," or "I prefer to" to several work requirements. (Doc. 32-6 at 5; Doc. 32-7 at 12; Doc. 32-11 at 40:5–11.) Kelley marked "rather not" in response to "work evenings (2nd shift)" and "work nights (3rd shift)," and marked "doesn't make a difference" to "work weekends" and all other listed requirements (Doc. 32-6 at 5; Doc. 32-7 at 12; Doc. 32-11 at 41:11–18, 42:4–6.) On August 6, 2015, Kelley interviewed with Melissa Hampton, Phoebe's corporate director for health information and head of the Medical Records Department. (Doc. 32-11 at 36:14–16, 42:18–20; Doc. 32-7 at 1.) During the interview, Kelley stated that she would feel okay about working weekends if needed. (Doc. 32-7 at 5; Doc. 32-11 at 45:21–46:3.) On August 18, Phoebe offered Kelley employment as an MRA I, and Kelley accepted electronically the next day. (Doc. 32-9.) As part of her acceptance, Kelley submitted a "Job Description Acknowledgment," indicating that she had "read the job description and [was] able to perform the functions of th[e] job" either "With reasonable accommodations" or "Without reasonable accommodations." (Doc. 32-10.) Kelley selected "Without reasonable accommodations." (Id. )
The relevant facts are derived from the EEOC's Complaint (Doc. 1), Phoebe's Answer (Doc. 5), Phoebe's Statement of Material Facts (Doc. 32-2), the EEOC's Response (Doc. 45-24), and the record in this case, all of which the Court construes in the light most favorable to the EEOC as the nonmoving party. See Fed. R. Civ. P. 56 ; Celotex , 477 U.S. at 323, 106 S.Ct. 2548.
At some point, the Medical Records Department was renamed Health Information Management. (Doc. 32-11 at 22:17–23:4.)
Kelley began work as an MRA I in Phoebe's Medical Records Department on September 14, 2015. (Doc. 1 ¶ 15; Doc. 5 ¶ 15; Doc. 32-2 ¶ 13; Doc. 45-24 ¶ 13; Doc. 32-4 at 17:12–21; Doc. 32-11 at 26:13–21.) The Medical Records Department ensures that medical records are completed, accurate, and maintained. (Doc. 32-11 at 23:5–11.) The Department is staffed seven days a week by about forty MRAs, typically working either six-hour shifts five days a week or, like Kelley, eight-hour shifts five days a week. (Id. at 32:10–11, 33:17–18, 34:8–22, 35:7–11.) Kelley's regular schedule was Monday through Friday, but she knew that she might have to fill in weekends from time to time, and was prepared to do so. (Id. at 35:7–16, 45:21–46:3; Doc. 32-4 at 65:14–66:13.) Kelley's job as an MRA I was to gather medical records from the hospital floor, prep them, and scan them to create an electronic record. (Doc. 32-11 at 27:5–9.) The MRA I job description, which Hampton drafted, indicates an MRA "[m]ay be scheduled as needed including overtime," but does not specifically list working weekends as a working condition. (Id. at 30:9–11, 31:16–21; Doc. 45-1 at 2.) Kelley's supervisor was Carol Pressley, a systems analyst team leader, who in turn reported to Hampton. (Doc. 32-11 at 24:1–12, 29:5–9.)
On at least two occasions, Kelley made plans or volunteered to work on a weekend. In November 2015, Pressley called Kelley on a Saturday evening and asked her to cover a shift the following day, so Kelley planned for someone to stay with her son and agreed to cover the shift. (Doc. 32-12 at 86:19–87:14; Doc. 32-4 at 69:1–8.) In December 2015, Kelley volunteered to cover a weekend but was not needed. (Doc. 45-2 at 2.) Pressley acknowledged that Kelley had offered to help when the team was short-staffed. (Id. at 3; Doc. 32-12 at 93:7–14.)
In April 2016, Pressley began planning to cover the work shifts of another MRA, Katherine Patten, who was scheduled to go on maternity leave in June 2016. (Doc. 32-2 ¶ 28; Doc. 45-24 ¶ 28; Doc. 32-14 at 1; Doc. 32-12 at 69:22–70:19.) Patten worked during the week and every other Saturday and Sunday. (Doc. 32-12 at 70:16–19.) To cover Patten's Saturday shifts, Pressley planned to rotate between Kelley and another MRA. (Id. at 110:9–12.) On April 12, 2016, Pressley emailed her staff, including Kelley, to inform them of the plan for covering Patten's shifts during her maternity leave. (Doc. 32-14 at 1; Doc. 32-12 at 108:6–109:13; Doc. 32-2 ¶ 28; Doc. 45-24 ¶ 28.) In the email, Pressley advised Kelley that she could choose another day to take off (except Friday) on the weeks she would cover Patten's Saturdays. (Doc. 32-14 at 1; Doc. 32-2 ¶ 28; Doc. 45-24 ¶ 28.)
II. Kelley's Medical History
On August 13, 2015, Kelley visited Medical Associates of Albany (MAA) and was diagnosed with "generalized anxiety disorder" by Carla Johnson, a physician's assistant at MAA. (Doc. 32-8 at 48:9–24; Doc. 36 at 3; Doc. 32-2 ¶ 7; Doc. 45-24 ¶ 7.) Kelley testified that she suffers from anxiety attacks that cause fainting spells, inability to focus, sweaty palms, heart racing, and feeling faint and restless. (Doc. 32-4 at 25:1–13.) Kelley could not remember experiencing a fainting spell prior to May 5, 2016. (Id. at 106:21–107:13.) For Kelley's anxiety, Johnson prescribed Hydroxyzine HCl, 25-milligram tablets, to be taken three times a day as needed. (Doc. 32-8 at 27:15–18, 28:25–29:9; Doc. 36 at 3; Doc. 32-2 ¶ 7; Doc. 45-24 ¶ 7.) On September 10, 2015, Kelley again saw Johnson, who adjusted her anxiety medication dosage to 10-milligram tablets to be taken twice a day as needed. (Doc. 32-8 at 29:6–30:1; Doc. 36-2 at 3; Doc. 32-2 ¶ 11; Doc. 45-24 ¶ 11.) Kelley had Hydroxyzine HCl prescriptions filled for 25-milligram tablets on August 13, September 21, and November 12, 2015, and for 10-milligram tablets on September 10, 2015. (Doc. 36-1; Doc. 36-3; Doc. 32-2 ¶¶ 8, 12; Doc. 45-24 ¶¶ 8, 12.)
On Tuesday, April 5, 2016, Kelley returned to MAA and reported to Johnson that, although she was taking her medications, she still felt stressed, had had some crying spells, and was not resting well. (Doc. 32-8 at 36:25–37:4; Doc. 36-4 at 1; Doc. 32-2 ¶ 24; Doc. 45-24 ¶ 24.) Johnson noted that Kelley was "anxious and tearful" and had generalized dizziness, headaches, and weakness (Doc. 32-8 at 37:5–12; Doc. 36-4 at 1–2; Doc. 32-2 ¶ 24; Doc. 45-24 ¶ 24.) In addition to the existing anxiety diagnosis on Kelley's chart, Johnson added a new diagnosis code for "other specified anxiety disorders." (Doc. 36-4 at 3.) As far as a treatment plan, Johnson told Kelley to continue the same medication and dosage as on September 10 and to set up a follow-up appointment one week later. (Doc. 32-8 at 37:12–23; Doc. 36-4 at 2; Doc. 32-2 ¶ 24; Doc. 45-24 ¶ 24.) Johnson also advised Kelley to return to work on Monday. (Doc. 36-4 at 2.) MAA gave Kelley a note excusing her from work until Monday, April 11, with no limitations or concerns. (Doc. 32-13; Doc. 32-2 ¶ 27; Doc. 45-24 ¶ 27.)
About one week later, on Wednesday, April 13, Kelley saw Johnson again. (Doc. 36-5 at 1; Doc. 32-8 at 37:24–38:1.) Kelley complained of headaches and light-headedness, and the records from this visit include the following note: "Patient is doing much better today. She needs FMLA forms to state that she needs some days off from time to time for this problem. She may need higher doses at time [sic] and may need to have weekends off for rest." (Doc. 36-5 at 1; Doc. 32-8 at 38:2–22.) Based on Johnson's medical diagnosis of Kelley's condition, along with Kelley's reported reaction to the Hydroxyzine HCl medication, Johnson recommended that Kelley continue the current dosage of her medication, increase the dosage when she had an extreme anxiety attack to 25-milligram tablets, three-times-daily, and take Saturdays and Sundays off work when she had to take an increased dose at the end of a stressful workweek. (Doc. 32-8 at 38:23–39:10, 50:8–51:18; Doc. 36-5 at 3.) As Johnson explained in her deposition,
we talked about how[,] when she worked through the week[,] how she was so stressed from ... her work schedule during the week and how, after the weekdays, she was so stressed on the weekend. It was like she was under more pressure. So that was the time that she could take more medication because of the anxiety was higher after she had a stressful week. So with that she could ... take more medicine on that Saturday and Sunday, but she would need to be off because of her taking more medication just because of the stressful week.
(Doc. 32-8 at 51:6–18.) Johnson further testified that Kelley "would still be able to work during the week, but the weekends may have been just too much for her, so she could take more medication, but since it would cause her to be groggy, she may need those two days off." (Id. at 40:23–41:2.) As far as orders following the visit, Johnson indicated that MAA would "fill out FMLA form to include that [Kelley] may need Saturdays and Sunday off when she has to take increased dose of her medication due to the drowsiness that it can cause." (Doc. 36-5 at 3; Doc. 32-8 at 39:11–21.)
III. Kelley's First Request for Leave
Phoebe employees requesting leave, including as a reasonable accommodation under the ADA, submit a request through The Standard, a third-party administrator. (Doc. 41 at 20:7–11; Doc. 43 at 34:9–18.) If the request is for a medical reason, the employee's physician is given a certification form to complete and return to The Standard. (Doc. 32-27 at 64:21–65:5, 65:19–65:25.) The Standard then applies Phoebe's leave policies to determine if the employee qualifies for FMLA leave; if they do not qualify or are not eligible for FMLA leave, then the employee can request a personal leave. (Id. at 65:23–66:2, 67:5–22.) The Standard then sends the request to the employee's supervisor, letting them know the type and length of leave requested, what leave the employee is eligible for, and whether the physician's certification supports the request—but The Standard does not include any medical information. (Doc. 41 at 20:12–21:2, 23:5–18; Doc. 32-11 at 84:20–85:2.) The supervisor—in Kelley's case, Hampton—is given the discretion to approve or deny the request, but Phoebe gives them no guidelines on how to exercise that discretion. (Doc. 32-11 at 86:1–11.) Vicky Askew, a compensation specialist in Phoebe's Human Resources Department, is the liaison between Phoebe and The Standard, communicating with employee supervisors and The Standard relating to leave requests. (Doc. 41 at 12:14–17, 13:2–4, 14:3–13.)
On April 13, 2016, the same day Kelley visited with Johnson, Kelley signed two Standard forms titled "Authorization to Release Health Information: Leave of Absence" and "Return to Work Authorization." (Doc. 48-2 at 3–4.) The first form authorized any healthcare provider who had completed a medical certification form for Kelley to disclose to The Standard her health information needed to clarify any medical certification or return-to-work authorization forms that the healthcare provider completed. (Id. at 4.) The second form authorized The Standard to share information collected from Kelley's healthcare provider with her employer for purposes of evaluating her return-to-work status. (Id. at 3.) On April 18, MAA's Dr. Michael Satchell completed The Standard's Certification of Health Care Provider for Employee's Serious Health Condition form for Kelley, noting that she "has been experiencing anxiety attacks" and "needs to be off on Saturdays and Sundays when she has to take increased dose of medication due to drowsiness until she gets adjusted to it. She can resume weekend work after July 20, 2016." (Id. at 1, 5.)
On April 20, 2016, Kelley submitted a request for "intermittent" leave beginning Saturday, April 23 to The Standard. (Doc. 32-20.) The same day, Kelley told Pressley that she was waiting on her doctor to send paperwork to The Standard to say that she cannot work on weekends, and that she needed the weekends to recover from a medication and its dosage. (Doc. 32-16.) After the conversation, Pressley emailed Askew, Hampton, and Phoebe Human Resources Business Partner Clara Hall, informing them of the conversation and the following:
[Wendy Kelley] works M-F now but has ALWAYS been advised that we are a hospital and we are open on the weekend. I have advised Wendy that we are talking ONE weekend a month. Not the entire weekend. During Katherine's Maternity leave, once it begins. I have advised Wendy that I can give her a day off during the week to accommodate the ONE Saturday a month. Her response is the [sic] she can't go over her Dr.'s orders and she is waiting to hear that Standard has received said paperwork and that HR has been notified.
(Id. ) Later that day, The Standard notified Pressley and Askew that Kelley had requested intermittent leave covering eight hours on Saturday, April 23. (Doc. 32-17 at 1.) Pressley forwarded The Standard's email to Hampton and Hall. (Doc. 32-18 at 2.)
The next morning, Hampton replied to Pressley, writing that she was not able to approve a personal leave for Kelley, and:
If for a medical reason she needs 2 days off back-to-back each week, we can accommodate her with Sunday and Monday or 2 days during the week.... She will have to work at least 3 Saturdays when a coworker goes out on Maternity leave.... If she requests a personal leave for the summer to avoid working these Saturdays, I will not approve it.
(Id. at 1.) Pressley forwarded Hampton's reply to Askew, stating that "[w]e need to understand what is going on" and that if Kelley "is taking a medication that requires her time to recover we need to know." (Id. ) That evening, Askew emailed The Standard to inform them of Kelley's regular work schedule, the fact she was not scheduled to work on April 23, and the plan for Kelley to work one Saturday a month during Patten's maternity leave. (Doc. 32-17 at 1.)
On April 26, Hampton emailed Kelley telling her that she "will be required to work 3 Saturdays if [Patten] takes 12 weeks of [maternity] leave" but that she might have to work fewer or more Saturdays if Patten returns early or if they needed additional coverage. (Doc. 32-21.) Hampton continued, "We will be very flexible with your schedule and will certainly allow you to schedule your days off together so that you have 2 days back to back to be off to take your medicine." (Id. )
On April 27, The Standard emailed Pressley and Askew, informing them that "Kelley has contacted The Standard regarding an arrangement for 2 days of absence, one on a weekend day following a weekday." (Doc. 32-22.) Askew replied, asking if The Standard had received medical documentation to support Kelley taking two days off. (Id. ) On April 28, The Standard responded, writing that they "have received medical certification at this time that would support weekends." (Doc. 32-23 at 2.) Askew asked for clarification on several questions that Hall, Pressley, and Hampton had, including how long the requested leave was, whether it had to do with recovering from taking medication, and whether Kelley could not work weekends or just needed two consecutive days off. (Id. at 1; Doc. 41 at 55:1–10.) The Standard answered that Kelley's physician's certification stated she "would need to have weekends (Saturday and Sunday) off due to increased doses medication and will be able to resume work on 07/20/2016." (Doc. 32-23 at 1.)
On May 2, Kelley emailed Hampton in response to the April 26 email, stating that she was told when offered the job that she did not have to work weekends and that she had not worked weekends, and asking if this meant she would be scheduled for weekends permanently. (Doc. 32-24 at 2.) Kelley and Hampton met later that day to discuss Kelley's email and other matters. (Doc. 32-11 at 140:14–141:8.) The next day, Hampton emailed Kelley recapping their meeting, telling her the schedule she would work during Patten's maternity leave and confirming their agreement that she would have two consecutive days off during the weeks she covered Patten's Saturday shift. (Doc. 32-24 at 1.) In particular, Kelley would have to cover three Saturday shifts barring unexpected circumstances, but she could "choose to have Sunday and Monday off or pick another combination of days that [gave her] 2 days off together" if she wanted to have consecutive days off. (Id. ) Hampton also told Kelley that her attendance record was not a concern and that, if her attendance became a concern, they would discuss it before Kelley received disciplinary action. (Id. ) Kelley testified that her meeting with Hampton "ended very positive," with Kelley agreeing that having two consecutive days off as an accommodation would be acceptable to both her and her doctor. (Doc. 45-11 at 48:13–49:2.) Kelley testified that as of May 3, 2016, she and Hampton had agreed on how she would cover Patten's three Saturday shifts. (Doc. 32-4 at 136:22–137:11.) As of May 4, Hampton did not intend to discharge Kelley. (Doc. 32-11 at 62:4–11.) Sometime before May 5, Kelley told both Hampton and Pressley that she suffered from anxiety. (Doc. 32-4 at 88:10–14.)
The deposition transcript indicates this meeting occurred on May 3. (Doc. 45-11 at 49:18.)
IV. Kelley's Second Request for Leave, and Discharge
On May 4, 2016, Kelley went to work but left early for a follow-up appointment with Johnson, which had already been scheduled. (Id. at 105:25–106:6.) At the appointment, Kelley reported having some episodes of faintness, nausea, vomiting, and heavy sweating. (Doc. 36-6 at 1.) Johnson determined that, although Kelley "was doing well with the medication," she was having problems relating to menopausal syndrome in addition to her anxiety. (Doc. 32-8 at 53:6–54:8.) Some of the symptoms are the same for anxiety and menopause. (Id. at 54:6–8.) Johnson decided that Kelley should take two weeks off of work, from May 4 to May 19, "just to get through as far as being anxious, going through the menopausal syndrome," and schedule a follow-up appointment in two weeks. (Id. at 53:17–18, 54:9–11; Doc. 36-6 at 3.)
Kelley felt a little weak but returned to Phoebe to turn in her doctor's note, gave it to a person at the HR front desk, and informed Pressley she was ill and would be out in May. (Doc. 32-4 at 107:17–20, 110:25–111:2, 112:20–114:4; Doc. 32-12 at 52:12–16, 53:12–19.) Kelley also submitted a leave request to The Standard, requesting leave from May 4 to May 18. (Doc. 32-2 ¶ 67; Doc. 45-24 ¶ 67; Doc. 32-25; Doc. 45-12 at 1.) Pressley told Hampton about what Kelley said and that she was having difficulty covering the schedule. (Doc. 32-12 at 54:6–15.) Hampton then had a phone conversation with Kelley, during which Kelley told Hampton she could not come in to work and that she had requested a medical leave. (Doc. 32-11 at 112:20–113:7, 114:24–115:2, 88:23–89:7.) Also that day, Hampton told Kelley that she needed to come in to work and have a meeting the following morning. (Doc. 32-4 at 114:17–23; Doc. 32-11 at 112:20–113:7, 114:24–115:2.) The meeting was going to be with Hampton, Pressley, and Hall. (Doc. 32-12 at 68:11–14.) At some point, Kelley texted Hampton: "Sorry I am not able to attend ur meeting on 5-5 My doctor has taken me off work and i am weak & sick," but after Hampton told her she really needed to be there, Kelley agreed to come in. (Doc. 45-14; Doc. 32-4 at 111:3–112:19, 114:17–115:21.)
The next day, May 5, Hampton texted Kelley from Pressley's phone, reiterating that she was not on approved leave and reminding her about the meeting that morning at 11 A.M. (Doc. 32-26; Doc. 32-12 at 64:18–65:4, 67:19–68:14; Doc. 32-11 at 110:16–20, 112:20–113:7.) Kelley arrived at Phoebe for the meeting, but as Hall was taking her back to the meeting room from the HR reception area, Kelley had an episode that she testified was her fainting, and which Phoebe claims was her feigning a fall. (Doc. 32-27 at 52:13–53:4; Doc. 32-11 at 64:3–19; Doc. 32-2 ¶ 72; Doc. 45-24 ¶ 72.) Once responsive, Kelley told Hall and responding EMTs that she was not hurt and that she did not want to go to the hospital. (Doc. 32-27 at 53:7–18, 55:14–18; Doc. 36-7 at 1; Doc. 32-2 ¶ 73; Doc. 45-24 ¶ 73.) Hall and a Phoebe security guard took Kelley home. (Doc. 32-27 at 55:19–22.)
After returning from taking Kelley home, Hall told Hampton and Pressley to talk to Kelley about rescheduling the meeting. (Id. at 57:2–16.) Hampton did not reschedule. (Id. at 57:17–20; 51:6–25; Doc. 32-11 at 73:22–74:4.) Hampton testified that within four to six days after May 5, she decided to discharge Kelley. (Doc. 32-11 at 74:5–7.) Pressley testified that about two days after May 5, Hampton told her that Kelley would be discharged. (Doc. 32-12 at 60:24–61:11.) Hampton told Hall that she wanted to discharge Kelley because Kelley had not returned to work. (Doc. 32-27 at 26:4–15.) Hall advised Hampton to follow up with Kelley as to why Kelley had not returned to work, but Hampton testified that she did not call, email, or text Kelley after the scheduled time of the May 5 meeting and that she did not ask anyone to do so. (Id. at 26:16–18; Doc. 32-11 at 161:23–162:5.) Hall testified that Hampton told her that Hampton had attempted to call Kelley. (Doc. 32-27 at 27:16–23.) Hampton testified that she did not know Kelley's health status after May 5. (Doc. 32-11 at 76:7–11.) Pressley did not attempt to contact Kelley after the May 5 meeting because she assumed that Kelley was going to be out of work anyway, since Kelley had already told her she was going to be out. (Doc. 32-12 at 62:24–63:17.)
On May 11, Pressley received notice from The Standard that Kelley was eligible for personal medical leave for Kelley's request covering May 4–18 and that the deadline for Kelley to provide medical documentation was May 30. (Doc. 45-15 at 2.) Also on May 11, Hampton sent Kelley a termination letter. (Doc. 32-15.) Kelley's separation notice, also dated May 11, states the reason for discharge as "Policy Violation – Attendance." (Doc. 45-16 at 2.) Phoebe covered Kelley's shifts for her absence beginning May 5, and after Kelley was discharged, Phoebe was able to cover Patten's maternity leave with the staff it had. (Doc. 32-12 at 62:18–20, 72:6–10.)
V. Phoebe's Leave and Attendance Policies
Phoebe has a leave of absence policy, which states that "Phoebe will exercise appropriate flexibility in applying its leave policies as may be necessary to accord a reasonable accommodation under the ADA." (Doc. 45-17 at 5.) Hall testified that if an employee requested a leave of absence, Hampton was supposed to let the process run its course through The Standard, rather than denying it before it gets very far. (Doc. 32-27 at 86:11–15.) In his deposition as Phoebe's Rule 30(b)(6) corporate representative, William J. Peterson IV testified that a request for reasonable accommodations like Kelley's request for leave would normally go through Hall. (Doc. 43 at 34:9–18.) When an employee sought an accommodation under the ADA, Hampton would contact Hall, who would coordinate the accommodations assessment. (Id. at 24:5–13.) Hall would then seek assistance from Phoebe's internal legal counsel, who would make the final decision on accommodations in conjunction with Hall. (Id. at 34:9–18, 35:2–12.) Hampton testified that if she needed coverage and an employee submitted a personal medical leave request, she would deny the request. (Doc. 32-11 at 96:6–11.) While she had never done so, Hampton stated that if the employee did not come to work, she would discharge them. (Id. at 96:12–15.)
Under Phoebe's attendance policy, employees absent three consecutive workdays without proper notification—meaning not telling their manager they will be out—are assumed to have resigned without proper notice. (Doc. 32-27 at 42:6–13.) Under the policy, an unscheduled absence of "[c]onsecutive days off for the same or similar reason will be considered one unscheduled absence." (Doc. 45-18 at 2.) Under Phoebe's discipline policy, attendance violations are "Level 1" violations. (Doc. 45-19 at 11.) The policy rates violations from Level 1 to Level 4, and Level 4 violations may result in discharge. (Id. at 3, 7.)
Hampton did not write Kelley up for attendance issues after May 5 because she considered it a "no call, no show" under Phoebe's policy. (Doc. 32-11 at 88:15–22.) Hampton knew at the time that Kelley had requested to be off work for medical reasons. (Id. at 89:2–7.) Hampton did not know whether Kelley had personal or paid hours off available to her at the time she was discharged, and Hampton did not check. (Id. at 89:20–24.) Phoebe's corporate representative testified that he did not know what analysis Phoebe did to determine whether it should grant Kelley's May 4 request for leave, did not know whether the request presented an undue hardship to Phoebe, and could not confirm whether Phoebe engaged in a collaborative effort with Kelley to determine whether there was a reasonable and effective accommodation available. (Doc. 43 at 42:9–16, 48:4–14.)
DISCUSSION
The EEOC claims Phoebe discriminated against Kelley in violation of the ADA when it (1) discharged her because of actual or perceived disability and (2) retaliated against her for requesting a reasonable accommodation. (Doc. 1 at 1, ¶ 14.) Phoebe asserts it is entitled to summary judgment because (1) Kelley's claimed disability did not substantially limit a major life activity, (2) the impact of medication that Kelley anticipated she might have to take cannot, as a matter of law, constitute an ADA-qualifying disability, and (3) Kelley refused an accommodation that Phoebe was not required to offer, but did. (Doc. 32-1 at 1.)
I. Discriminatory Discharge
The ADA prohibits employers from discriminating against "a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). Where, as here, a plaintiff does not offer any direct evidence of discrimination, they may prove their claim through circumstantial evidence using the familiar McDonnell Douglas burden-shifting framework, beginning with the plaintiff's prima facie case. Wascura v. City of S. Miami , 257 F.3d 1238, 1242 (11th Cir. 2001) ; see McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). "To establish a prima facie case of employment discrimination under the ADA, a plaintiff must show that at the time of the adverse employment action, she (1) had a disability, (2) was a qualified individual, and (3) was subjected to unlawful discrimination because of her disability." Batson v. Salvation Army , 897 F.3d 1320, 1326 (11th Cir. 2018). Phoebe challenges the first and third elements.
A. Disability
Under the ADA, a "disability" means "a physical or mental impairment that substantially limits one or more major life activities ... a record of such an impairment ... or [ ] being regarded as having such an impairment." 42 U.S.C. § 12102(1). Congress has directed courts to construe the definition of disability "in favor of broad coverage of individuals under [the ADA], to the maximum extent permitted by the terms of [the ADA]." Id. § 12102(4)(A). "The question of whether an individual meets the definition of disability ... should not demand extensive analysis." 29 C.F.R. § 1630.1(c)(4). Rather, Congress's express intent was "that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations." ADA Amendments Act of 2008 (ADAAA), Pub. L. No. 110-335, § 2(b)(5), 122 Stat. 3553, 3554. "Congress intended that the establishment of coverage under the ADA should not be overly complex nor difficult, and expected that the ADAAA will lessen the standard of establishing whether an individual has a disability...." Mazzeo v. Color Resolutions Int'l, LLC , 746 F.3d 1264, 1268 (11th Cir. 2014) (citations, alterations, and internal quotation marks omitted). Importantly, "[a]n impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting." 29 C.F.R. § 1630.2(j)(1)(ii) ; see also ADAAA § 2(b)(4) (stating Congress's purpose "to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams , 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), that the terms ‘substantially’ and ‘major’ in the definition of disability under the ADA ‘need to be interpreted strictly to create a demanding standard for qualifying as disabled,’ and that to be substantially limited in performing a major life activity under the ADA ‘an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives.’ ")
1. Actual Disability
It is undisputed that Johnson diagnosed Kelley with generalized anxiety disorder in August 2015. (Doc. 32-2 ¶ 7; Doc. 45-24 ¶ 7; Doc. 32-8 at 48:9–24; Doc. 36 at 3.) Generalized anxiety disorder is considered to be an "impairment" under the ADA because "mental impairment means ... [a]ny mental or psychological disorder." 29 C.F.R. § 1630.2(h). Whether Kelley was actually disabled, then, turns on whether her anxiety disorder substantially limited one or more major life activities. To determine that question, the Court compares the individual's ability to perform the activity "to most people in the general population." Id. § 1630.2(j)(1)(ii). The functional limitation required is lower than the standard applied prior to the ADAAA, and the analysis usually does not require medical, scientific, or statistical evidence. Id. § 1630.2(j)(1)(iv)–(v). Furthermore, "[a]n impairment that is episodic ... is a disability if it would substantially limit a major life activity when active," and "[t]he determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as ... medication." Id. § 1630.2(j)(1)(vii) ; 42 U.S.C. § 12102(4)(E)(i) ; see also ADAAA § 2(b)(2) (stating Congress's purpose "to reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc. , 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures ..."). Major life activities "include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." 42 U.S.C. § 12102(2)(A). An impairment need only limit one major life activity to be a disability. Id. § 12102(4)(C).
Indeed, Congress passed the ADAAA "to, among other things, promulgate a more liberal standard of the term ‘disabled,’ making it significantly easier for a plaintiff to show disability." Coker v. Enhanced Senior Living, Inc. , 897 F. Supp. 2d 1366, 1374 (N.D. Ga. 2012) (quoting Barlow v. Walgreen Co. , 2012 WL 868807, at *4 (M.D. Fla. Mar. 14, 2012) ).
Kelley testified that she suffers from anxiety attacks that cause fainting spells, inability to focus, sweaty palms, heart racing, and feeling faint and restless. (Doc. 32-4 at 25:1–13.) Johnson testified to Kelley's anxiety diagnosis, what anxiety is, how it is treated, and some of the anxiety symptoms Kelley had, including feeling stressed, being anxious, having crying spells, and not sleeping well. (Doc. 32-8 at 17:11–18:25, 24:11–25:7, 36:25–37:15, 48:9–24.) Johnson also testified about her treatment plan for Kelley when, at the end of a stressful workweek, Kelley's anxiety was such that she would not be able to work and "the weekends may have been just too much for her." (Id. at 39:22–41:2, 50:8–51:18.) The EEOC presented sufficient evidence in the form of Kelley's testimony, Johnson's testimony, and the medical records that Kelley's ability to concentrate, think, sleep, or communicate was substantially limited compared to most people in the general population. While many people in the general population may experience one or more of Kelley's anxiety symptoms, taken as a whole, the Court finds for purposes of this review that there is a genuine issue of material fact as to whether Kelley's anxiety caused major life activities to be substantially limited as compared to the general population. See Forsyth v. Univ. of Ala. Bd. of Trs. , 2018 WL 3012343, at *3 (N.D. Ala. June 15, 2018) (finding that the plaintiff's "bare allegations of sleeplessness [were] insufficient to show that his difficulties sleeping were worse than difficulties suffered by most people in the general population," but that the plaintiff's allegation that his depression otherwise substantially limited his ability to interact with others was plausible). While Kelley's most intense symptoms may occur only when she has anxiety attacks, or at the end of particularly stressful weeks, such a pattern constitutes the type of episodic impairment whose effect on major life activities the Court must analyze when the impairment is active, not overall. 29 C.F.R. § 1630.2(j)(1)(vii). In sum, viewing the testimony regarding Kelley's anxiety disorder and Kelley's medical records in the light most favorable to the EEOC, the EEOC has established that Kelley's anxiety disorder was an impairment that substantially limited major life activities, rendering her a person with an actual disability.
At her deposition, Kelley testified that she could not remember having a fainting spell prior to May 5, 2016. (Doc. 32-4 at 106:21–107:13.)
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2. "Regarded As"
Moreover, even if Kelley's impairment could not be deemed an actual disability, the EEOC also has demonstrated that Phoebe regarded Kelley as having an impairment. "[A] plaintiff need demonstrate only that the employer regarded him as being impaired, not that the employer believed the impairment prevented the plaintiff from performing a major life activity." Wolfe v. Postmaster Gen. , 488 F. App'x 465, 468 (11th Cir. 2012). In response to Kelley's request for accommodation related to her anxiety, Hampton worked with Kelley to develop a reasonable accommodation—allowing her two consecutive non-weekend days off. Thus, the evidence clearly demonstrates that Phoebe regarded Kelley as impaired.
B. Unlawful Discrimination
The third element of the prima facie case for ADA discrimination is that the employee "was subjected to unlawful discrimination because of her disability." Batson , 897 F.3d at 1326. Unlawful discrimination also includes the failure to provide "reasonable accommodations" for the disability unless doing so would impose undue hardship on the employer. 42 U.S.C. § 12112(b)(5)(A). "This third element is more properly stated as ‘the defendant took an adverse employment action.’ " Vaughan v. Nationsbank Corp. , 137 F. Supp. 2d 1317, 1323 n.2 (N.D. Ga. 2000) (citing Steelworkers v. Weber , 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979) ; Furnco Constr. Corp. v. Waters , 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978) ; Tex. Dep't of Cmty. Affairs v. Burdine , 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) ; and McDonnell Douglas , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 ).
While Phoebe claims that "[t]he EEOC has failed to articulate in its Complaint the purported discrimination," the Complaint alleges that Phoebe "discriminated against Kelley when it discharged her because of her disability and in retaliation for requesting a reasonable accommodation for her disability in violation of the ADA, as amended." (Doc. 1 at 1.) It is undisputed that Phoebe discharged Kelley after she requested medical leave and did not report for work. Therefore, the EEOC has established, for purposes of this motion, that Kelley was subjected to unlawful discrimination because of her disability. Accordingly, the EEOC has established a prima facie case of employment discrimination under the ADA.
C. Non-Discriminatory Rationale
"Once the employee has established a prima facie case, the burden shifts to the employer to articulate a nondiscriminatory reason for the adverse action." Batson , 897 F.3d at 1329. This "exceedingly light" burden is one "of production, not persuasion." Perryman v. Johnson Prods. Co. , 698 F.2d 1138, 1142 (11th Cir. 1983) ; Standard v. A.B.E.L. Servs., Inc. , 161 F.3d 1318, 1331 (11th Cir. 1998). "To satisfy that burden of production, ‘[t]he defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.’ " Combs v. Plantation Patterns , 106 F.3d 1519, 1528 (11th Cir. 1997) (alteration in original) (quoting Burdine , 450 U.S. at 254–55, 101 S.Ct. 1089 ). Phoebe identifies Kelley's rejection of its "accommodation that would have allowed [Kelley] to have two consecutive days off per week" as its nondiscriminatory reason for discharging Kelley. (Doc. 32-1 at 23.) This proffered reason does not raise a genuine issue of fact as to whether Phoebe discriminated against Kelley after she requested a two-week medical leave of absence. Kelley clearly accepted Phoebe's accommodation offered after her healthcare provider ordered that she take weekends off. Then, there was an intervening event—Kelley's request for a two-week leave. The termination came in response to that request. The accommodation offer that Phoebe proffered was not only accepted by Kelley, but it also does not address Kelley's absence, which Phoebe acknowledges occurred after Kelley requested the two-week medical leave.
D. Pretext
Regardless, even had Phoebe satisfied the exceedingly light burden of production, the EEOC has carried its burden of establishing that the proffered reason is pretextual. Had Phoebe offered a legitimate non-discriminatory reason, "the burden [would] shift back to the employee to demonstrate that the ‘employer's proffered reason was pretextual by presenting evidence sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision.’ " Batson , 897 F.3d at 1329 (quoting Martin v. Brevard Cty. Pub. Schs. , 543 F.3d 1261, 1268 (11th Cir. 2008) ). To show pretext, a plaintiff must demonstrate "both that the reason was false, and that discrimination was the real reason." St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).
The EEOC claims that Phoebe's stated reason for firing Kelley is pretext and that its real issue was that Kelley requested an accommodation under the ADA. Kelley's testimony indicates that after her May 3, 2016 meeting with Hampton, the two had agreed on how Kelley would cover Patten's three Saturday shifts, with Kelley agreeing to take two consecutive non-weekend days off. (Doc. 32-4 at 136:22–137:11; Doc. 45-11 at 48:13–49:2.) Moreover, Hampton testified that as of May 4, she did not intend to discharge Kelley. (Doc. 32-11 at 62:4–11.) Thus, the accommodation upon which Phoebe hangs its hat was in fact accepted prior to the second request for accommodation—the two-week leave request. Hampton's thoughts on terminating Kelley changed after the parties reached an agreement on the weekend work. Hampton's termination letter of May 11, 2016, references Kelley's alleged refusal to work weekends, but that occurred in response to Kelley's request for a two-week medical leave and her failure to report to work after making that request. "[W]hen conflicts arise between the facts evidenced by the parties, we credit the nonmoving party's version." Evans v. Stephens , 407 F.3d 1272, 1278 (11th Cir. 2005) (en banc) (emphasis omitted). Thus, the reason Phoebe proffered for the termination is demonstrably false.
As for whether discrimination was the real reason for terminating Kelley, Hall testified that Hampton told her she wanted to discharge Kelley because she had not returned to work after May 5. (Doc. 32-27 at 26:4–15.) Hampton testified that she discharged Kelley because the post-May 5 absence fell under Phoebe's "no call, no show" policy; however, Hampton knew that Kelley was out because she had requested a medical leave. (Doc. 32-11 at 88:15–22, 89:2–7.) Hall's testimony, the Phoebe corporate representative's testimony, and Phoebe's attendance policies all indicate that Hampton did not follow the usual procedures when she decided to discharge Kelley. (See Doc. 32-27 at 86:11–15, 42:6–13; Doc. 43 at 34:9–18, 24:5–13, 35:2–12; Doc. 45-18 at 2; Doc. 45-19 at 3, 7, 11.) "[A]n employer's deviation from its own standard procedures may serve as evidence of pretext." Hurlbert v. St. Mary's Health Care Sys., Inc. , 439 F.3d 1286, 1299 (11th Cir. 2006). Moreover, "an employer's failure to articulate clearly and consistently the reason for an employee's discharge may serve as evidence of pretext." Id. at 1298. In this case, there is evidence to support the EEOC's contentions that Phoebe deviated from its standard procedures and failed to articulate clearly and consistently the reason for Kelley's discharge. Adding the fact that the accommodation that was offered predated the two-week request for medical leave, the evidence is sufficient to raise a genuine dispute about a material fact concerning pretext.
II. Retaliation
A. Prima Facie Case
"To establish a prima facie case of retaliation under [the ADA], an employee must demonstrate (1) that she engaged in statutorily protected conduct, (2) that she suffered an adverse employment action, and (3) that a causal connection exists between the two." Batson , 897 F.3d at 1329. "The first element may be met by a request for a reasonable accommodation." Frazier-White v. Gee , 818 F.3d 1249, 1258 (11th Cir. 2016). As discussed above, there is record evidence sufficient to establish that Kelley had a disability and requested leave as an accommodation for her disability. As for the second element, Kelley's discharge was an adverse employment action.
The third element—a causal connection between Kelley's protected conduct and her discharge—is construed broadly. "[A] plaintiff merely has to prove that the protected activity and the ... [adverse] action are not completely unrelated." Higdon v. Jackson , 393 F.3d 1211, 1220 (11th Cir. 2004) (alterations in original) (citations omitted). A plaintiff satisfies this element with " ‘sufficient evidence’ of knowledge of the protected expression" and by showing "that there was a close temporal proximity between this awareness and the adverse ... action." Id. (alteration in original) (quoting Shotz v. City of Plantation , 344 F.3d 1161, 1180 n.3 (11th Cir. 2003) ). Such close temporal proximity "is sufficient circumstantial evidence of a causal connection for purposes of a prima facie case," and the Eleventh Circuit has found that "a period as much as one month ... is not too protracted." Id. (citations omitted).
The EEOC has presented evidence that Hampton knew Kelley's May 4, 2016 leave request was for medical reasons and that she knew Kelley had anxiety. (Doc. 32-11 at 89:2–7; Doc. 32-4 at 88:10–14.) Hampton sent the discharge letter on May 11—just a week after she learned of Kelley's leave request. (Doc. 32-15; Doc. 45-16.) Thus, there is sufficient circumstantial evidence of a causal connection to permit a jury to find that the EEOC has established its prima facie retaliation case.
B. Non-Discriminatory Rationale and Pretext
"Once the employee has established a prima facie case, the burden shifts to the employer to articulate a nondiscriminatory reason for the adverse action." Batson , 897 F.3d at 1329. Phoebe articulates the same reasons in defense of the retaliation claim as it did for the disability claim. (See Doc. 32-1 at 23.) As discussed above, the record evidence is sufficient to raise a genuine dispute of material fact that Phoebe's proffered reason is pretextual. Accordingly, summary judgment on the retaliation claim is not appropriate.
CONCLUSION
For the reasons stated above, Phoebe's Motion for Summary Judgment (Doc. 32) is DENIED.
SO ORDERED , this 19th day of March, 2020.