Rhodes v. Arc of Madison County, Inc.

Full title: SHEBA RHODES, Plaintiff, v. THE ARC OF MADISON COUNTY, INC., Defendant.

Court: UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION

Date published: Jan 25, 2013

920 F. Supp. 2d 1202 (N.D. Ala. 2013)

Opinion

Civil Action No. CV–11–S–1215–NE.

2013-01-25

Sheba RHODES, Plaintiff, v. The ARC OF MADISON COUNTY, INC., Defendant.

Michael E. Auffenorde, Auffenorde & Auffenorde PC, Huntsville, AL, for Plaintiff. David J. Canupp, J.R. Brooks, Lanier Ford Shaver & Payne PC, Huntsville, AL, for Defendant.

C. LYNWOOD SMITH

Michael E. Auffenorde, Auffenorde & Auffenorde PC, Huntsville, AL, for Plaintiff. David J. Canupp, J.R. Brooks, Lanier Ford Shaver & Payne PC, Huntsville, AL, for Defendant.

MEMORANDUM OPINION

C. LYNWOOD SMITH, JR., District Judge.

Plaintiff, Sheba Rhodes, asserts claims against defendant, The Arc of Madison County, Inc., for wrongful termination in violation of the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (“FMLA”), and for negligent hiring, training, supervision, and retention in violation of state law. This action is before the court on three motions filed by defendant: i.e., a motion for summary judgment; a motion to strike portions of plaintiff's response in opposition to defendant's motion for summary judgment; and a motion to strike portions of the affidavit of Constance Jones.¹ Upon consideration of the parties' briefs and evidentiary submissions, the motion to strike portions of plaintiff's response will be granted in part and denied in part, the motion to strike portions of Jones's affidavit will be granted, and the motion for summary judgment will be granted in part and denied in part.

1 See doc. no. 20 (Motion for Summary Judgment); doc. no. 26 (Motion to Strike Portions of Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment); doc. no. 29 (Motion to Strike Portions of the Affidavit of Constance Jones).

I. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 indicates that summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “[T]he plain language of Rule 56(c) mandates 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, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (alteration supplied).

In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment.

[However,] [t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable [factfinder] to return a verdict in its favor.
Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir.2000) ( en banc ) (internal citations omitted) (alterations and emphasis supplied).

II. SUMMARY OF FACTS

A. Plaintiff's Employment as an Instructor at The Arc

Plaintiff, Sheba Rhodes, was employed by defendant, The Arc of Madison County, Inc. (“The Arc”), as an instructor in a day program for adults with intellectual disabilities and developmental delays from July 12, 2006 to August 12, 2010.² Prior to her employment at The Arc, plaintiff worked at “Volunteers of America” and “Ability Plus,” two organizations that served the needs of the mentally disabled.³

2 Doc. no. 22–1 (Deposition of Sheba Rhodes), exhibit 1 (Employment Application) and exhibit 3 (Termination Notice); doc. no. 23–3 (Affidavit of Susan Klingel) ¶¶ 2–3.

3 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 11–14.

During her two-year term at Volunteers of America, plaintiff was supervised by Program Director Kertrina Sharperson, who eventually left that organization and became Program Coordinator for defendant.⁴ While Sharperson testified that she voluntarily resigned from Volunteers of America because she was getting a divorce and having medical issues,⁵ plaintiff alleged that Sharperson was forced to resign because she engaged in theft and Social Security fraud.⁶ Before hiring Sharperson, defendant conducted a background check, and found no cause for concern.⁷

4 Id. at 16–19. Sharperson's first name is spelled variously throughout the record, including as “Katrina.” See, e.g., doc. no. 1 (Complaint) ¶ 11.

5 Doc. no. 23–1 (Deposition of Kertrina Sharperson), at 9.

6 Doc. no. 22–1 (Deposition of Sheba Rhodes), exhibit 2 (Interrogatory Responses) ¶ 4.

7 Doc. no. 23–3 (Affidavit of Susan Klingel) ¶ 17.

Regardless of Sharperson's reasons for leaving Volunteers of America, when she assumed the position of Program Coordinator for defendant, she encouraged plaintiff to apply for employment.⁸ Plaintiff submitted an application on June 16, 2006, was interviewed by Qualified Mental Retardation Professional (“QMRP”) David Lane, and hired as an aide on July 12 of the same year.⁹ Upon the recommendation of Sharperson, and with the approval of defendant's Executive Director, Susan Klingel, plaintiff was then promoted to instructor, and trained by QMRPs Lane and Ann Finley.¹⁰

8 Doc. no. 23–1 (Deposition of Kertrina Sharperson), at 24.

9 Id.; doc. no. 22–1 (Deposition of Sheba Rhodes), exhibit 1 (Employment Application).

10 Doc. no. 23–1 (Deposition of Kertrina Sharperson), at 25, 27–28, 49.

While working as an instructor in defendant's day program, plaintiff's regular duties included feeding and changing the soiled undergarments of clients with intellectual disabilities and developmental delays, as well as “teaching them everyday functions of life.” ¹¹ Despite the fact that the State of Alabama generally requires a ratio of one instructor to four clients, plaintiff had eight or nine students and one or two aides at any time.¹² In any event, plaintiff was ultimately responsible for the conditions in her classroom.¹³

11 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 48–49.

12 Id. at 49.

13 Doc. no. 23–2 (Deposition of Roslyn Bridges), at 7, 61.

During her time as an instructor, plaintiff was supervised by QMRPs Lane and Finley and Program Coordinator Sharperson: Lane and Finley reported to Sharperson, who, in turn, reported to Executive Director Klingel.¹⁴ As a staff member in the day program, plaintiff also interacted with Medicaid Program Coordinator Roslyn Bridges, who ran the program and investigated allegations of client abuse, neglect, and mistreatment when assigned to do so by Klingel.¹⁵

14 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 25–27; doc. no. 22–3 (Deposition of Susan Klingel), at 6; doc. no. 23–1 (Deposition of Kertrina Sharperson), at 8, 16–17.

15 Doc. no. 23–2 (Deposition of Roslyn Bridges), at 7–8, 10; doc. no. 22–3 (Deposition of Susan Klingel), at 11–12.

Plaintiff and Program Coordinator Sharperson had a falling out in 2006 or 2007.¹⁶ After defendant hired plaintiff's former supervisor, Yolanda Watkins (who is no longer employed at The Arc), plaintiff alleges that Watkins developed an intimate relationship with her and also Sharperson.¹⁷ Watkins allegedly “convinced [Sharperson] somehow that [plaintiff] was a bad employee, [that she] wasn't doing what [she] was supposed to do[,] [and that she] was running behind [Sharperson].” ¹⁸

16 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 168.

17 Id. at 166–67.

18 Id. at 167 (alterations supplied).

Eventually, plaintiff ended her intimate relationship with Yolanda Watkins because she knew that Watkins also was intimately involved with Program Coordinator Sharperson, and because she was hesitant to jeopardize her employment with defendant.¹⁹ Thereupon, plaintiff alleges that Watkins launched a campaign of sexual harassment against plaintiff, but that Sharperson believed that plaintiff was sexually harassing Watkins.²⁰ Sharperson then called plaintiff into her office, where she and plaintiff exchanged words, and Sharperson threatened to fire plaintiff if she did not “leave [Watkins] alone.” ²¹

19 Id. at 168.

20 Id.

21 Id. (alteration supplied).

As a result of their conflict over Watkins, plaintiff alleges that Program Coordinator Sharperson “harassed [her] and tried to get [her] fired.” ²² However, plaintiff did not report the harassment to either Executive Director Klingel or Medicaid Program Coordinator Bridges.²³ By way of explanation, plaintiff alleged that complaining to Klingel or Bridges was “like talking to that wall over there,” ²⁴ because “[n]othing gets done.” ²⁵ However, plaintiff admitted that she did not have any personal experience with the effectiveness of defendant's reporting processes. ²⁶

22 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 183 (alterations supplied).

23 Id. at 179.

24 Id. at 171.

25 Id. at 175 (alteration supplied).

26 Id. at 179–80.

Program Coordinator Sharperson denied that she harassed plaintiff, that she believed that plaintiff should be terminated, or that she urged Executive Director Klingel to do so.²⁷ For her part, Klingel denied that she was aware of problems between Sharperson and plaintiff.²⁸

27 Doc. no. 23–4 (Affidavit of Kertrina Sharperson) ¶ 3.

28 Doc. no. 23–3 (Affidavit of Susan Klingel) ¶ 17.

B. Plaintiff's Request for FMLA Leave and Eventual Termination

In 2008, and again in 2009, well before the events giving rise to this action, plaintiff took leaves of absence from her employment with defendant under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (“FMLA”), “and no one gave [her a] hard time about [it].” ²⁹

29 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 163, 188 (alterations supplied).

Plaintiff told Program Coordinator Kertrina Sharperson that she was planning to request FMLA leave once again in June of 2010, this time for gallbladder and hernia repair surgery.³⁰ Plaintiff submitted her third request for FMLA leave on June 30, 2010, received her FMLA request packet on July 1, 2010, and obtained a certification of having a serious health condition from her physician on July 6 of the same year.³¹ Plaintiff then faxed the paperwork and received defendant's approval on July 12, 2010 to begin her leave on August 16 of the same year.³²

30 Id. at 41.

31 Id., exhibit 4 (2010 Request for FMLA Leave).

32 Id.

During her deposition, plaintiff testified that, around the time she was gathering her paperwork to request FMLA leave, Program Coordinator Sharperson told plaintiff and plaintiff's supervisor, QMRP Ann Finley, that she did not want plaintiff to have the surgeries because “it was too many people trying to take FMLA [leave]. And [plaintiff had] already taken FMLA [leave] twice and [she] was taking it again. [Sharperson] was tired of folks asking for FMLA [leave].” ³³ Sharperson denied making those statements.³⁴

33 Id. at 31, 164.

34 Doc. no. 23–4 (Affidavit of Kertrina Sharperson) ¶¶ 3–4; doc. no. 23–1 (Deposition of Kertrina Sharperson), at 85.

On August 5, 2010, less than two weeks before her scheduled FMLA leave, plaintiffwas suspended, pending an investigation of a coworker's allegations that she had abused a client.³⁵ One week later, defendant gave plaintiff a termination notice stating that:

35 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 47–48, 210.

Following an investigation, it has been determined that you failed to implement the approved behavior program for an individual. Your failure to comply with established behavior strategy steps was neglectful and had a detrimental effect on the individual. Your employment is terminated as of today.³⁶

36 Id., exhibit 3 (Termination Notice).

C. The Job Duties of an Instructor in the Day Program

In order to understand the alleged reasons for plaintiff's termination, one must understand the job duties of an instructor in the day program.

1. The day program

Defendant is a non-profit corporation that serves individuals of all ages who have intellectual disabilities and developmental delays.³⁷ In addition to offering a residential group home, critical life skills training, and job support and supervision for individuals within the community, defendant provides a day program for adults that places clients in a classroom with a trained instructor for five hours a day, five days a week, to receive educational, vocational, and adaptive daily living skills, training, and support.³⁸

37 Doc. no. 23–3 (Affidavit of Susan Klingel) ¶ 2.

38 Id. at ¶¶ 2–3; doc. no. 23–1 (Deposition of Kertrina Sharperson), at 61–62.

In contrast to the mere custodial care that is offered at nursing homes and other institutions, the day program provides “active treatment,” which involves continuously assessing the client, providing, monitoring, and modifying the client's training based on progress.³⁹ To facilitate “active treatment,” each client has a set of Active Treatment Protocols (“ATPs”) which are designed specifically for the client, and which constitute the curriculum to be taught at the day program.⁴⁰

39 Doc. no. 23–3 (Affidavit of Susan Klingel) ¶ 3.

40 Id.; see also doc. no. 22–1 (Deposition of Sheba Rhodes), at 49.

Many of the clients in the day program have severe or profound mental retardation, and some clients are prone to various negative behavior, including aggression.⁴¹ Thus, the staff is trained on how to deal with negative behavior, on how to redirect the client to positive behavior, and on how to refocus the client on the ATPs.⁴²

41 Doc. no. 23–3 (Affidavit of Susan Klingel) ¶ 4.

42 Id.

2. The Behavior Support Plans (“BSPs”)

The State of Alabama requires that clients taking at least two forms of psychotropic medication also have Behavior Support Plans (“BSPs”) which are developed by a team of mental health professionals to decrease the clients' negative behavior and increase their positive behavior using redirection and positive reinforcement.⁴³ Among other things, a BSP contains a list of “reinforcer” activities: i.e., a unique list of activities deemed to encourage a particular client to engage in positive behavior.⁴⁴

43 Id.; doc. no. 22–3 (Deposition of Susan Klingel), at 31–32; doc. no. 23–1 (Deposition of Kertrina Sharperson), at 42.

44 See, e.g., doc. no. 22–1 (Deposition of Sheba Rhodes), at 223–24.

Because the purpose of a BSP “is to help change negative behavior into positive behavior,” it does not encompass all interactions between an instructor and her client, but only addresses those interactions that are related to behavior.⁴⁵ Further, a BSP does not specify the amount of time that an instructor must spend on each of the listed “reinforcer” activities.⁴⁶ Finally, a BSP is only one of the tools used by employees who interact with mentally retarded individuals.⁴⁷

45 Doc. no. 22–3 (Deposition of Susan Klingel), at 96–97.

46 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 223–24.

47 Id. at 203–04.

If the State of Alabama Department of Mental Health determines that defendant failed to enforce a BSP, defendant could lose certifications and funding. ⁴⁸ Thus, instructors are required to implement the day program curriculum while adhering to the BSPs of the clients in their classrooms, and using those BSPs to combat negative behavior.⁴⁹

48 Doc. no. 23–3 (Affidavit of Susan Klingel) ¶ 6; doc. no. 23–2 (Deposition of Roslyn Bridges), at 98–99.

49 Doc. no. 23–3 (Affidavit of Susan Klingel) ¶ 5.

Instructors are provided with BSPs for any clients with whom they interact in their classrooms.⁵⁰ Instructors are then required to read and certify that they understand and will implement the BSPs.⁵¹ The mandatory review process affords instructors the opportunity and obligation to raise any questions about the BSPs' contents.⁵²

50 Id.; see also doc. no. 22–1 (Deposition of Sheba Rhodes), exhibit 5(BSP), at ARC000093.

51 Doc. no. 23–3 (Affidavit of Susan Klingel) ¶ 5; see also doc. no. 22–1 (Deposition of Sheba Rhodes), exhibit 5(BSP), at ARC000093.

52 Doc. no. 23–3 (Affidavit of Susan Klingel) ¶ 5.

3. The “Individual Abuse, Neglect, and Mistreatment” policy

Defendant's written policy on “Individual Abuse, Neglect, and Mistreatment” defines the term “neglect” as:

the failure to carry out a duty through reckless conduct, carelessness, inattention, or disregard of duty whereby the individual is exposed to harm or risk of harm, and includes but is not limited to: failing to appropriately supervise individuals or otherwise leaving individuals unattended, including sleeping, failing to ensure that individual's [sic] basic needs for safety, nutrition, medical care and personal attention are met, failing to provide treatment in accordance with the treatment plan or failing to develop a treatment plan, and utilizing treatment techniques, e.g., restraints, seclusion, etc., in violation of Arc policy and procedures, whether or not injury results. Incidents resulting in injury where both the perpetrator and the victim receive services by the Arc are investigated to determine if the occurrence of such incident may have been the result of neglect.⁵³

53 Doc. no. 22–1 (Deposition of Sheba Rhodes), exhibit 8 (Individual Abuse, Neglect, and Mistreatment), at 209–10 (emphasis supplied).

Defendant's “Individual Abuse, Neglect, and Mistreatment” policy requires staff members to follow a BSP until it is changed by the individuals charged with its administration, regardless of whether any staff member, including Executive Director Susan Klingel, believes that the BSP should be amended.⁵⁴ Instructors receive mandatory annual training on the “Individual Abuse, Neglect, and Mistreatment” policy.⁵⁵ Klingel has terminated numerous employees for violating the policy.⁵⁶

54 Doc. no. 23–3 (Affidavit of Susan Klingel) ¶ 6; doc. no. 23–2 (Deposition of Roslyn Bridges), at 107.

55 Doc. no. 23–1 (Deposition of Kertrina Sharperson), at 86.

56 Doc. no. 23–3 (Affidavit of Susan Klingel) ¶ 7.

D. Plaintiff's Job Performance

1. “Christina's” Behavior Support Plan

The given name of one of plaintiff's students was “Christina.” ⁵⁷ Like many of defendant's clients, Christina sometimes engaged in aggressive or self-injurious behavior, including biting, slapping, hitting, and kicking. ⁵⁸ Accordingly, Christina had a Behavior Support Plan (“BSP”) which was implemented on December 31, 2009, before Christina's transfer to plaintiff's classroom, and within eight months of plaintiff's ultimate termination.⁵⁹

57 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 52. “Christina's” last name has been redacted to protect her privacy.

58 Id. at 83–84, and exhibit 5(BSP), at ARC000090–ARC000091; doc. no. 22–3 (Deposition of Susan Klingel), at 48.

59 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 72, 74.

Christina's BSP indicated that her aggressive and self-injurious behavior was motivated by a desire for escape, attention, and sensory stimulation. ⁶⁰ Thus, the BSP stated that, “[t]o address the escape function of Christina [sic] target behaviors and to address the communication problems he [sic] has with making her needs known, Christina will be taught to indicate to staff her basic needs.” ⁶¹ The BSP also contained instructions for preventing aggressive and self-injurious behavior, which stated:

60 Id., exhibit 5(BSP), at ARC000091.

61 Id., exhibit 5(BSP), at ARC000092 (alteration supplied).

If Christina is engaging in Physical Aggression that is highly disruptive and she must be removed from the area, do so with NO TALKING. Do not tell her to calm down at this time/Do not ask her at this time if she needs anything/Simply escort her out. Any talking with her about her behavior at this point will serve to reinforce it (attention function). If physical aggression continues outside of original area, the staff may place Christina in a crisis prevention intervention, approved by Anita's Home physical intervention, until she appears to be calm, for no longer than five minutes. This may be repeated two times before contacting the QMRP for further instructions.

If Christina engages in Self Injurious Behavior, she must be removed from the area without talking to him [sic]. Staff can try to watch an Alvin and the Chipmunks movie and video because this can calm her down. Staff needs to hold Christina's arms gently to prevent her from further hitting herself or causing injuries. Staff will attempt to figure out what it is that is causing the behavior ( i.e., identify item that is causing irritation, identify if Christina is in pain, identify if Christina is hungry or thirsty, identify what task that Christina does not want to do, and give her a break from it). If something is irritating Christina in her environment, remove the item. If Christina is hungry or thirsty, give her something to eat or drink. If Christina seems to be in pain, report to the nurse and house manager. If Christina needs a break from a task then give her a break and try again after she has calmed down. If an injury has occurred, staff needs to complete an accident and injury report on the injury.⁶²

62 Id., exhibit 5(BSP), at ARC000092 (emphasis in original).

Christina's BSP also contained instructions for reinforcing appropriate behavior. It listed the following “reinforcer” activities, i.e., various activities designed to encourage positive behavior: “Alvin and the Chipmunks, Listening [sic] to music, coloring, dancing, verbal praise, playing with her baby doll, 1:1 attention.” ⁶³ The BSP further included a section entitled “Reinforcement for Appropriate Behavior,” which stated:

63 Id., exhibit 5(BSP), at ARC000090.

If Christina ceases target behavior at any time, then staff should provide him [sic] with praise/recognition for appropriate behavior. When she calms down, give her praise and encourage her to return to previous activity. If he [sic] returns to previous activity, praise her for returning. If she begins engaging in the required activity, then give a lot of praise/recognition. ⁶⁴
Finally, Christina's BSP stated that it was “to be implemented at all times and in all locations unless specified otherwise,” but “only ... by staff that has been trained on the specific procedures of this program.” ⁶⁵ Accordingly, plaintiff signed the BSP to certify that

64 Id., exhibit 5(BSP), at ARC000090–ARC000091.

65 Doc. no. 22–1 (Deposition of Sheba Rhodes), exhibit 5(BSP), at ARC000092.

I have been [sic] in-service on Christina [sic] In-service for the individual listed below. I have had the opportunity to ask questions regarding the in-service and to have them answered. I understand that I am responsible for seeking direction from the QMRP if I do not understand any or all of this in-service and any or all of the responsibilities I have regarding instructing the client and providing care for the client. I agree to abide by the team's recommendations and assist the individuals in carrying out these goals and objectives. I also agree to report and document as required by the Habilitation team, my supervisor and/or the R–QMRP.⁶⁶

66 Id., exhibit 5(BSP), at ARC000093.

Although plaintiff received in-service training on handling aggressive clients, and annual training on defendant's “Individual Abuse, Neglect, and Mistreatment” policy,⁶⁷ plaintiff testified that she was not trained on each BSP.⁶⁸ Further, even though plaintiff understood that defendant expected its staff to read and understand BSPs “thoroughly,” she testified that she did not read Christina's BSP “thoroughly.” ⁶⁹ Plaintiff nevertheless perceived that she was supposed to maximize the use of one-on-one interaction and other “reinforcers” for positive behavior,⁷⁰ that she was not supposed to permit Christina to fall asleep while class was in session, ⁷¹ and that deviation from a BSP constituted neglect, and was grounds for termination.⁷²

67 Id. at 50, 77, 114, 117, 214.

68 Id. at 50, 212.

69 Id. at 80, 77, 114, 117, 214, 212.

70 Id. at 88, 227.

71 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 81, 117.

72 Id. at 77, 114, 117, 214.

2. Plaintiff's alleged deviations from Christina's Behavior Support Plan

By August of 2010, plaintiff testified that she had worked with Christina for eight to ten months.⁷³ As noted in Section II(A), supra, plaintiff generally had eight or nine students and the assistance of one or two aides. ⁷⁴ Thus, unless a staff member was assigned to a specific client, there was not enough staff to provide every client with one-on-one supervision. ⁷⁵ At least two of plaintiff's students had Behavior Support Plans (“BSPs”), one of whom was Christina.⁷⁶ Of the two students with BSPs, one-on-one care was required for one of the students, but such care was not required for Christina.⁷⁷

73 Id. at 72–73. The exact amount of time that plaintiff worked with Christina is not clear. The record reflects that Christina's BSP was implemented on December 31, 2009, and that plaintiff's employment was terminated on August 12, 2010. Id. at 72, 74, and exhibit 3 (Termination Notice); doc. no. 23–3 (Affidavit of Susan Klingel) ¶¶ 2–3. However, plaintiff testified that Christina's BSP was implemented before her transfer to plaintiff's classroom. Doc. no. 22–1 (Deposition of Sheba Rhodes), at 74. If that is the case, then plaintiff could only have worked with Christina for, at most, seven and a half months.

74 Id. at 49.

75 Id. at 218–19, 225–26.

76 Doc. no. 23–1 (Deposition of Kertrina Sharperson), at 43–44.

77 Id. at 38–39.

Plaintiff found Christina's behavior difficult to control. She testified that, “when [Christina] was up, when she was not sleeping, she was a terror. She would get up hitting the other clients [and] fighting the staff.” ⁷⁸ Plaintiff also testified that, “[i]f [Christina] wasn't laying her head down, getting in one of her little moods, she's fighting staff and fighting clients 24/7.” ⁷⁹ According to plaintiff, she “was the only one, basically, that could control [Christina].” ⁸⁰

78 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 51 (alterations supplied).

79 Id. at 61 (alterations supplied).

80 Id. at 51 (alteration supplied).

On one hand, plaintiff is neither an expert on BSPs, nor responsible for designing them.⁸¹ On the other hand, plaintiff testified that “[t]he ones that put the [BSPs] together is just doctors and psychiatrists. They don't work with [clients] one on one like [instructors] do.” ⁸² Indeed, some of the Qualified Mental Retardation Professionals who design BSPs ask for input from instructors and aides.⁸³

81 Id. at 76.

82 Id. at 70 (alteration supplied).

83 Id.; doc. no. 23–1 (Deposition of Kertrina Sharperson), at 41–42.

In plaintiff's opinion, Christina's BSP “was not the right plan for her. It didn't work.” ⁸⁴ Among other deficiencies, Christina's BSP did not require that she receive one-on-one care as part of her treatment.⁸⁵ Program Coordinator Kertrina Sharperson told plaintiff that the BSP had been created prior to Christina's transfer to plaintiff's classroom, and that it had not been updated.⁸⁶

84 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 70.

85 Doc. no. 23–1 (Deposition of Kertrina Sharperson), at 38–39.

86 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 74.

Christina's BSP listed “coloring, dancing ... [and] 1:1 attention” as “reinforcers” for positive behavior.⁸⁷ However, plaintiff admitted that Christina was not encouraged to engage in coloring or dancing, and that she was not always given one-on-one attention.⁸⁸ By way of explanation, plaintiff alleged that defendant had too little staff to give Christina constant one-on-one attention, and that Christina “didn't like” plaintiff's classroom aides.⁸⁹

87 Id., exhibit 5(BSP), at ARC000090 (alteration supplied).

88 Id. at 80–81, 87–88, 218.

89 Id.

Further, Christina's BSP did not expressly allow instructors to regulate Christina's behavior by instructing her to place her head on the desk and/or permitting her to fall asleep while class was in session. However, on occasions when Christina became aggressive, plaintiff admitted that she asked Christina to put her head on the desk “to calm her down.” ⁹⁰ Within approximately ten to fifteen minutes, Christina's behavior de-escalated, and she got back up and was “fine.” ⁹¹

90 Id. at 60–21, 64.

91 Id.

Plaintiff denied issuing an instruction for Christina to go to sleep. ⁹² Rather, plaintiff testified that Christina was often drowsy as a result of her medications, especially in the mornings.⁹³ When Christina fell asleep, plaintiff attempted to interact with her in order to wake her up.⁹⁴ Although this occasionally made Christina become aggressive, plaintiff understood that it was her job to continue to attempt to keep Christina awake.⁹⁵ Further, plaintiff “didn't want to get in trouble with [Program Coordiator Sharperson] because [Christina] is laying there asleep.” ⁹⁶

92 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 60–21, 64.

93 Id. at 51, 62.

94 Id. at 60, 62, 67

95 Id. at 67–68.

96 Id. at 68 (alterations supplied).

However, plaintiff admitted that she “allowed [Christina] to stay asleep when she's having [an episode of negative or self-injurious] behavior.” ⁹⁷ For example, plaintiff admitted that she told Gina Brand, an aide, not to interact with Christina when she was exhibiting negative behavior, because Brand irritated Christina, and plaintiff feared for Brand's safety.⁹⁸

97 Id. (alterations supplied).

98 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 65.

Likewise, plaintiff admitted that she told Victoria Evans, another aide, to allow Christina to put her head on the desk and not attempt to wake her up when she was exhibiting such behavior.⁹⁹ Evans attested that:

99 Id. at 64.

[Plaintiff] and Christina were usually in the classroom before me and Christina normally had her head down on a table on top of a paper towel when I arrived. There were multiple occasions when Christina put her head up (other than when necessary to eat) and I heard [plaintiff] tell her to put her head back down on the table. [Plaintiff] told me more than one time to leave Christina alone in order to avoid negative behavior. Although Christina would sometimes fall asleep, she did not sleep all day and I often saw her awake with her head flat on a table as she was told to do. I knew that the Behavior Support Plan for Christina contained instructions on how to interact with her and that it did not include instructions that she should be told to put her head on a table or that she should be encouraged to sleep.¹⁰⁰
Although plaintiff designated the Evans affidavit as “disputed,” she did not identify the portions with which she disagreed.¹⁰¹ Indeed, plaintiff specifically admitted many of the facts Evans alleged.¹⁰² Plaintiff did, however, deny personally instructing Christina to place her head on the desk, on top of a paper towel.¹⁰³

100 Affidavit of Victoria Evans ¶ 5 (alterations supplied).

101 Doc. no. 24 (Response in Opposition to Motion for Summary Judgment), at 4–5.

102 See, e.g., footnotes 90–99.

103 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 61.

Plaintiff testified that she believed her strategy of managing Christina's behavior by instructing her to put her head on the desk to be consistent with the following instructions from Christina's BSP: “If something is irritating Christina in her environment, remove the item.... If Christina needs a break from a task then give her a break and try again after she has calmed down.” ¹⁰⁴

104 Id. at 205–206, and exhibit 5(BSP), at ARC000092.

In contrast to plaintiff's interpretation of Christina's BSP, Executive Director Susan Klingel indicated that, much like using physical intervention, the act of instructing a client to place her head on the desk, or to go to sleep is a negative strategy that “ha[s] to go through a team [of mental health professionals] and ... be part of the Behavior Support Plan” before it can be used.¹⁰⁵

105 See doc. no. 22–3 (Deposition of Susan Klingel), at 47 (alterations supplied).

Klingel also testified that “[a]t no point in time in any behavior management plan would somebody tell [a client] to put their head down on the table or go to sleep.” ¹⁰⁶ Likewise, Medicaid Program Coordinator Roslyn Bridges testified that defendant does not encourage the behavior management strategy of instructing a client to go to sleep.¹⁰⁷

106 Id. at 56, 69 (alterations supplied).

107 Doc. no. 23–2 (Deposition of Roslyn Bridges), at 103–04; see also doc. no. 23–1 (Deposition of Kertrina Sharperson), at 61–62.

3. Alleged Knowledge of Plaintiff's Conduct by Defendant's Employees

Plaintiff offered evidence that several of defendant's employees often instructed Christina to place her head on the desk, on top of a paper towel, either for purposes of hygiene or in order to address her episodes of aggressive or self-injurious behavior.¹⁰⁸ Those employees included: Aide Freddie Dowdell; plaintiff's supervisor, Qualified Mental Retardation Professional Ann Finley; and even Program Coordinator Kertrina Sharperson who, in fact, allegedly introduced the challenged practice.¹⁰⁹

108 See doc. no. 22–1 (Deposition of Sheba Rhodes), at 61–62; doc. no. 25–1 (Affidavit of Constance Jones) ¶ 8.

109 Id.

Plaintiff testified that Aide Dowdell frequently instructed Christina to put her head on the desk, on top of a paper towel, “because [Christina] slobbered on the table, and they didn't want the slob on the table.” ¹¹⁰ Plaintiff allegedly twice instructed Dowdell to stop using a paper towel “[b]ecause it was making [Christina] comfortable to sleep[,] [a]nd I was instructed by my supervisor not to let her sleep like that,” but in spite of her instructions, Dowdell continued the practice.¹¹¹

110 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 61–62 (alterations supplied).

111 Id. at 118 (alterations supplied); see also id. at 98.

Plaintiff also submitted an affidavit from Constance Jones, a former aide, who attested that she had

personally observed [plaintiff's supervisor,] Ann Finley, a QMRP at the time, and [Program Coordinator] Kertrina Sharperson, place Christina's head down on the table in the classroom as a way of calming Christina down. In fact, Kertrina Sharperson was the first Arc employee to start the practice of placing a paper towel on the table and having Christina place her head down on the table, as a method of dealing with Christina's violent behavior. Once [Sharperson] started this approach, she did it almost every day because Christina would act violent almost every day, or she also instructed [plaintiff], myself and others to act in this manner with Christina.¹¹²

112 Doc. no. 25–1 (Affidavit of Constance Jones) ¶ 8 (alterations supplied).

Executive Director Susan Klingel denied personal awareness that any of defendant's employees were instructing Christina to put her head on the desk, either with or without a paper towel.¹¹³

113 Doc. no. 23–3 (Affidavit of Susan Klingel) ¶¶ 15, 17.

Plaintiff also testified that she repeatedly told Program Coordinator Sharperson and plaintiff's supervisor, QMRP David Lane, that Christina's medication was causing her to fall asleep in class.¹¹⁴ Further, plaintiff alleged that Sharperson often visited her classroom, and frequently observed that Christina had fallen asleep with her head on the desk, but that Sharperson did not report these occurrences as a violation of defendant's policies.¹¹⁵

114 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 51–52; doc. no. 23–1 (Deposition of Kertrina Sharperson), at 68.

115 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 51–52, 62, 124–25, 202–03; doc. no. 23–1 (Deposition of Kertrina Sharperson), at 66.

Program Coordinator Sharperson denied frequent visits to plaintiff's classroom, and testified that, on those occasions when she saw “Christina with her head on the desk,” she “instructed staff to get her up, move her around, [and encourage her to] interact with the other individuals.” ¹¹⁶ Sharperson also stated that she was “not aware that [Christina] was being told to lay her head down and to sleep.” ¹¹⁷

116 Doc. no. 23–1 (Deposition of Kertrina Sharperson), at 66 (alterations supplied).

117 Id. (alteration and emphasis supplied).

In addition, plaintiff testified that she told Program Coordinator Sharperson that Christina did not like one of the aides, Gina Brand.¹¹⁸ Plaintiff did not, however, raise the issue with a QMRP, who could have written a “file note” and possibly removed Brand from the classroom.¹¹⁹ Executive Director Susan Klingel denied that she was aware of any problems between Christina and Brand.¹²⁰

118 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 65–66.

119 Doc. no. 22–3 (Deposition of Susan Klingel), at 58.

120 Id.

E. Defendant's Investigation of Plaintiff's Conduct

1. The complaint by Aide Gina Brand to Program Coordinator Kertrina Sharperson

The parties present two different versions of the events that led to the complaint against plaintiff by Aide Gina Brand to Program Coordinator Kertrina Sharperson.

According to defendant, Brand approached Sharperson on August 5, 2010 in order to report the actions of Aide Constance Jones.¹²¹ In the process of reporting Jones' misconduct, Aide Brand raised a separate “question” regarding the appropriateness of plaintiff's practice of instructing Christina to place her head on the desk, of allowing her to fall sleep while class was in session, and of discouraging aides from interacting with her one-on-one.¹²² Plaintiff disputes the evidence of Brand's statements as inadmissible hearsay.¹²³ See Section III, infra.

121 Doc. no. 23–4 (Affidavit of Kertrina Sharperson) ¶¶ 1, 6.

122 Id. ¶ 7.

123 Doc. no. 24 (Response to Motion for Summary Judgment), at 8.

Defendant alleges that Program Coordinator Sharperson responded to Aide Brand's inquiry by stating that plaintiff's methods “were not a correct way of dealing with Christina, because sleep is never encouraged and clients are at the Arc for affirmative interaction, not isolation or rest.” ¹²⁴ Sharperson then told Brand that they “needed to report this matter to [Medicaid Program Coordinator] Roslyn Bridges for a complete investigation pursuant to the Arc's abuse, neglect and mistreatment policy.” ¹²⁵

124 Doc. no. 23–4 (Affidavit of Kertrina Sharperson) ¶ 7 (emphasis supplied).

125 Id. (alteration supplied)

In contrast, plaintiff alleges that Program Coordinator Sharperson and plaintiff's supervisor, Qualified Mental Retardation Professional Ann Finley, coerced Aide Brand into making a complaint after Christina became violent and struck another client.¹²⁶ While plaintiff was attending a doctors' appointment on August 15, 2010, Christina became upset with Brand, who moved away from Christina and toward another client, Julia.¹²⁷ Christina then physically attacked Julia, and Aide Constance Jones had to intervene to break up the fight.¹²⁸

126 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 54, 133, 139–40.

127 Doc. no. 25–1 (Affidavit of Constance Jones) ¶ 6.

128 Id.

As a result of the incident, Program Coordinator Sharperson and QMRP Finley were allegedly called into plaintiff's classroom, Aides Brand and Jones completed reports for inclusion in Christina's client file, and Brand reported that Christina had physically assaulted her.¹²⁹ After the incident had been documented, plaintiff arrived at work, and Brand and Jones informed plaintiff of what had transpired.¹³⁰ Plaintiff explained Christina's behavioral problems to Brand, and Brand told plaintiff and Jones that she did not like three of defendant's clients: i.e., John, Maria, and Christina. ¹³¹

129 Id.

130 Id. ¶¶ 6–7.

131 Id. ¶ 7.

Aide Brand then allegedly took her lunch break, but repeatedly returned to plaintiff's classroom to inform plaintiff and Aide Jones that Program Coordinator Sharperson and QMRP Finley were trying to convince her to “snitch” on them by reporting activities in plaintiff's classroom.¹³² Brand also told plaintiff and Jones that Sharperson and Finley had assured her that neither plaintiff nor Jones would be present in plaintiff's classroom the following day.¹³³

132 Id.

133 Doc. no. 25–1 (Affidavit of Constance Jones) ¶ 7.

Aide Brand then allegedly left the room, but returned to tell plaintiff and Aide Jones that Program Coordinator Sharperson and QMRP Finley were putting her up to saying something she did not want to say, and that if she had to be a “snitch,” she would quit her job.¹³⁴ Brand also stated that Jones had thrown Christina and another client, Jeff, into a chair, and that Finley was watching Jones through the window of plaintiff's classroom. ¹³⁵ (It is not clear whether Brand alleged that Finley was watching while Jones allegedly threw the clients into chairs.) Jones denied throwing either client.¹³⁶

134 Id.

135 Id.

136 Id.

Later, Program Coordinator Sharperson allegedly instructed Aide Jones to speak to Medicaid Program Coordinator Roslyn Bridges about Jones's request for family leave.¹³⁷ Jones denied requesting family leave, but she apparently went to Bridges's office accompanied by Sharperson.¹³⁸ Once Jones and Sharperson arrived at Bridges's office, Sharperson laughed at Jones and told her that Bridges wanted to speak with her, and that Jones should have a seat.¹³⁹

137 Id.

138 Id.

139 Doc. no. 25–1 (Affidavit of Constance Jones) ¶ 7.

Medicaid Program Coordinator Bridges informed Aide Jones that she was accused of abusing two clients, Christina and Jeff. She then obtained Jones's written statement responding to the allegations, and suspended Jones with pay. ¹⁴⁰ Later that day, Jones tendered her resignation, because she believed that she “was being singled out and harassed and well as falsely accused of two incidents.” ¹⁴¹ Defendant disputes the evidence of statements to Jones as inadmissible hearsay.¹⁴² See Section IV, infra.

140 Doc. no. 25–1 (Affidavit of Constance Jones), exhibit A (Jones E–Mail), at 8.

141 Id.

142 Doc. no. 29 (Motion to Strike Portions of the Affidavit of Constance Jones).

2. The placement of plaintiff on administrative leave

On the day that Aide Gina Brand informed Program Coordinator Kertrina Sharperson about plaintiff's practice of instructing Christina to place her head on the desk while class was in session, defendant suspended plaintiff pending the results of an investigation by Medicaid Program Coordinator Roslyn Bridges,¹⁴³ who ran defendant's adult day program.¹⁴⁴

143 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 42, 45, 93–94.

144 Doc. no. 23–2 (Deposition of Roslyn Bridges), at 7–8, 10; doc. no. 22–3 (Deposition of Susan Klingel), at 11–12.

The incident report showing plaintiff's placement on administrative leave was signed by Program Coordinator Sharperson.¹⁴⁵ Accordingly, plaintiff alleged that Sharperson placed her on administrative leave.¹⁴⁶ However, Klingel testified that Bridges was responsible for putting employees on administrative leave,¹⁴⁷ and Sharperson attested that her (Sharperson's) involvement was limited to completingthe incident report as required by law.¹⁴⁸

145 Doc. no. 22–1 (Deposition of Sheba Rhodes), exhibit 6 (Investigation Report).

146 Doc. no. 24 (Response in Opposition to Motion for Summary Judgment), at 25.

147 Doc. no. 22–3 (Deposition of Susan Klingel), at 21.

148 Doc. no. 23–4 (Affidavit of Kertrina Sharperson) ¶ 8.

3. The investigation by Medicaid Program Coordinator Roslyn Bridges

As noted in Section II(A), supra, Medicaid Program Coordinator Roslyn Bridges ran the day program, and investigated allegations of client abuse, neglect, and mistreatment when assigned to do so by Executive Director Susan Klingel. ¹⁴⁹ Bridges received informal, telephonic training on performing such investigations by requesting recommendations regarding her first investigation from an Advocate for the Alabama Department of Mental Health who was in the process of retiring from his position.¹⁵⁰ By the time of her deposition, Bridges had conducted ten to twenty investigations.¹⁵¹

149 Doc. no. 23–2 (Deposition of Roslyn Bridges), at 7–8, 10; see also doc. no. 22–3 (Deposition of Susan Klingel), at 11–12.

150 Doc. no. 23–2 (Deposition of Roslyn Bridges), at 14–16; Doc. no. 22–3 (Deposition of Susan Klingel), at 28.

151 Doc. no. 23–2 (Deposition of Roslyn Bridges), at 16.

As part of her investigation of the allegations by Aide Gina Brand against plaintiff, Medicaid Program Coordinator Bridges took a written statement from Brand, who reported that she “was told [by plaintiff] not to interact with Christina,” and “was informed the less interaction [with Christina,] the better.” ¹⁵² Brand also reported that Christina was “made [by plaintiff] to lay her head down and sleep as much as possible,” and that “when I tried to talk and interact [with Christina,] I was told to stop and move on to the next client.” ¹⁵³

152 Doc. no. 23–3 (Affidavit of Susan Klingel), exhibit A (Witness Statements) (alterations supplied); see also doc. no. 23–2 (Deposition of Roslyn Bridges), at 23–24.

153 Doc. no. 23–3 (Affidavit of Susan Klingel), exhibit A (Witness Statements) (alterations supplied).

Upon receiving Aide Brand's report, Medicaid Program Coordinator Bridges preliminarily categorized the conduct under investigation as “mistreatment.” ¹⁵⁴ Bridges asked plaintiff to write a statement responding to Brand's allegations. Plaintiff wrote that she had, in fact, told Brand “not to say certain things around Christina because she will get fixated on certain things you say,” ¹⁵⁵ and “that the less she say to Christina the better she will be because if you keep saying things to her she will try to fight and behaviors will escalate.” ¹⁵⁶

154 Doc. no. 23–2 (Deposition of Roslyn Bridges), at 106.

155 Doc. no. 22–1 (Deposition of Sheba Rhodes), exhibit 6 (Investigation Report), at ARC000102.

156 Doc. no. 23–3 (Affidavit of Susan Klingel), exhibit A (Witness Statements); see also doc. no. 23–2 (Deposition of Roslyn Bridges), at 30.

Additionally, Program Coordinator Kertrina Sharperson assembled a list of employees for Medicaid Program Coordinator Bridges to interview.¹⁵⁷ Bridges then obtained written answers to a series of questions from all nine aides who worked in plaintiff's classroom with Christina.¹⁵⁸ However, she did not speak to Sharperson, or plaintiff's supervisors, Qualified Mental Retardation Professionals David Lane and Ann Finley, or anyone responsible for designing Christina's Behavior Support Plan.¹⁵⁹

157 See doc. no. 22–1 (Deposition of Sheba Rhodes), exhibit 6 (Investigation Report).

158 Id.; doc. no. 23–2 (Deposition of Roslyn Bridges), at 25.

159 See doc. no. 22–1 (Deposition of Sheba Rhodes), exhibit 6 (Investigation Report).

Three aides denied witnessing the acts under investigation. Donna Davis, Wilma Emerson, and Daphne Garner each gave a written statement denying that they had heard plaintiff instruct Christina to go to sleep, and denying that they had heard plaintiff tell staff not to interact with Christina.¹⁶⁰

160 Id.

Another six aides, however, acknowledged that they had heard plaintiff instruct Christina to place her head on the desk, and that they had heard plaintiff tell the staff to allow Christina to sleep and/or not to interact with her. Each of those statements is briefly summarized below.

Aide Freddie Dowdell wrote that, “[w]hen Christina come to school in a bad mood, [plaintiff] would tell her or I should say make her lay her head down and she would eventually go to sleep, or quiet down.” ¹⁶¹

161 Doc. no. 23–3 (Affidavit of Susan Klingel), exhibit A (Witness Statements) (alteration supplied).

Aide Victoria Evans wrote that, “[n]ormally, by the time I went to room 12, Christina was already laying her head down. When I would come there and she was up, she was instructed to lay her head down.” ¹⁶² Evans then noted parenthetically that “[plaintiff] instructed her.” ¹⁶³ In response to Bridges's question regarding whether plaintiff had instructed Evans to allow Christina to sleep, Evans answered that, “[o]ne time before Christina began to have [an episode of negative or self-injurious] behavior I was instructed to place a paper towel on the table and for her to rest her head on the paper towel to calm down.” ¹⁶⁴ Evans then stated that she “was instructed by [plaintiff] not to interact with Christina [and] to let her rest.” ¹⁶⁵

162 Id. (alteration supplied).

163 Id. (alteration supplied).

164 Id. (alteration supplied).

165 Id. (alterations supplied).

In response to Bridges's question regarding whether plaintiff had instructed Aide Connie Laster to allow Christina to sleep, Laster answered, “yes if [Christina] is in one of her bad moods.” ¹⁶⁶ Laster then alleged that plaintiff had also used that method “when [Christina] was obsessing over Alvin and the Chipmunks.” ¹⁶⁷

166 Id. (alteration supplied).

167 Doc. no. 23–3 (Affidavit of Susan Klingel), exhibit A (Witness Statements) (alteration supplied).

Aide Michelle Timmons answered “yes” to a question regarding whether plaintiff had instructed her to allow Christina to sleep, and “yes” to a question regarding whether she had also been instructed not to interact with Christina.¹⁶⁸ Timmons answered “no” to the question, “Have you ever seen [plaintiff] make Christina to lay her head down by putting her hand on Christina's head and push[ing] her head down?” but noted that she had “heard [plaintiff] tell Christina to put her head down.” ¹⁶⁹

168 Id.

169 Id. (alterations supplied).

Aide Donna Davis was asked whether plaintiff had instructed her to allow Christina to sleep, and answered, “yes she instructed [Christina] to la[y] her head down.” ¹⁷⁰

170 Id. (alterations supplied).

Aide Beth Meager answered “yes” to a question asking whether plaintiff had instructed her to allow Christina to sleep.¹⁷¹

171 Id.

Eventually, Medicaid Program Coordinator Bridges incorporated the nine witness statements into her investigative report for the Alabama Department of Mental Health.¹⁷² Bridges's investigation did not yield sufficient evidence to conclude that plaintiff committed “ mistreatment ” (Bridges's original designation for Aide Brand's allegations), but did yield sufficient evidence to conclude that plaintiff's “behavior of failing to follow the approved behavior plan for [Christina] was neglectful.” ¹⁷³ Defendant did not investigate the way in which Program Coordinator Sharperson or QMRPs Lane and Finley treated Christina, and did not subject those individuals to disciplinary action.¹⁷⁴

172 Doc. no. 22–1 (Deposition of Sheba Rhodes), exhibit 6 (Investigation Report), at ARC000099.

173 Id. (alterations and emphasis supplied).

174 Id.

4. The decision to terminate plaintiff's employment

After Medicaid Program Coordinator Roslyn Bridges completed her investigation, but before she completed her report, Bridges provided Executive Director Susan Klingel with all the evidence, including the nine witness statements, regarding Aide Gina Brand's allegations for the purpose of allowing Klingel to make a decision regarding the appropriateness of disciplinary action against plaintiff.¹⁷⁵ Ultimately, Klingel decided to terminate plaintiff's employment because she did not follow Christina's BSP, and because she acted in a manner that constituted “neglect” under defendant's policies.¹⁷⁶

175 Doc. no. 22–3 (Deposition of Susan Klingel), at 100–01; doc. no. 23–3 (Affidavit of Susan Klingel) ¶¶ 9–10; doc. no. 23–2 (Deposition of Roslyn Bridges), at 91.

176 Doc. no. 22–3 (Deposition of Susan Klingel), at 45, 65–66; doc. no. 23–3 (Affidavit of Susan Klingel) ¶ 13.

As an explanation for the decision, Executive Director Klingel testified that plaintiff “did not even attempt to follow [Christina's] behavior [support] program. She went ahead and did what she wanted to do, which was to tell [Christina] to sleep and put her head down.” ¹⁷⁷ Klingel categorized that practice as “isolation [because Christina was] not getting any interaction.” ¹⁷⁸ Klingel found the practice inconsistent with defendant's goal of assisting clients to improve their behavior and increase their normalization into the community. She also “considered [the practice] to be neglect” under defendant's policies.¹⁷⁹

177 Doc. no. 22–3 (Deposition of Susan Klingel), at 72 (alterations supplied).

178 Id. at 59 (alteration supplied).

179 Id. at 56 (alteration supplied).

Medicaid Program Coordinator Bridges gave plaintiff a termination notice signed by Executive Director Klingel on August 12, 2010, four days before plaintiff was scheduled to begin her FMLA leave (August 16, 2010), and six days before Bridges completed her investigation report (August 18 of the same year). ¹⁸⁰ The termination notice stated that “[y]our failure to comply with the established behavior strategy steps was neglectful and had a detrimental effect on the individual.” ¹⁸¹ Plaintiff signed the termination notice with the words “Refused to Sign” because she “didn't think it was neglect.” ¹⁸²

180 Doc. no. 22–1 (Deposition of Sheba Rhodes), exhibit 3 (Termination Notice); exhibit 4 (2010 Request for FMLA Leave); exhibit 6 (Investigation Report).

181 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 29, and exhibit 3 (Termination Notice); doc. no. 22–3 (Deposition of Susan Klingel), at 18 (alteration supplied).

182 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 57.

Medicaid Program Coordinator Bridges denied knowing that plaintiff had either applied for or been approved for FMLA leave until after her termination. ¹⁸³ Even so, Executive Director Klingel, Program Coordinator Kertrina Sharperson, and plaintiff's supervisor, Qualified Mental Retardation Professional Ann Finley, were each aware that plaintiff had been approved for FMLA leave prior to her termination.¹⁸⁴ Nevertheless, Klingel attested that she did not consider information related to plaintiff's FMLA status in making the ultimate termination decision.¹⁸⁵

183 Doc. no. 23–2 (Deposition of Roslyn Bridges), at 91.

184 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 34–36; doc. no. 22–3 (Deposition of Susan Klingel), at 87–88; doc. no. 23–1 (Deposition of Kertrina Sharperson), at 80, 84.

185 Doc. no. 23–3 (Affidavit of Susan Klingel) ¶ 15.

Additionally, plaintiff testified that Program Coordinator Sharperson influenced Executive Director Klingel's decision to terminate plaintiff's employment.¹⁸⁶ Plaintiff also testified that Sharperson claimed to have terminated employees in the past.¹⁸⁷ However, Klingel testified that she is defendant's ultimate decision-maker on hiring and firing, ¹⁸⁸ and that she made the decision to terminate plaintiff's employment without input from either Medicaid Program Coordinator Bridges or Sharperson. ¹⁸⁹

186 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 27–28, 30–32, 165, 194, 197.

187 Id. at 199.

188 Doc. no. 22–3 (Deposition of Susan Klingel), at 10, 16, 102, 104; doc. no. 23–3 (Affidavit of Susan Klingel) ¶ 15; doc. no. 22–1 (Deposition of Sheba Rhodes), at 30–31.

189 Doc. no. 22–3 (Deposition of Susan Klingel), at 10, 16, 102, 104; doc. no. 23–3 (Affidavit of Susan Klingel) ¶ 15.

F. Plaintiff's Surgeries

Despite her termination on August 12, 2010, plaintiff continued to receive health insurance coverage until September 1 of that year.¹⁹⁰ Accordingly, plaintiff had insurance coverage for her surgery on August 16, 2010, for which she had originally requested FMLA leave.¹⁹¹ Plaintiff also owes nothing for a second surgery on September 18 of that year.¹⁹²

190 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 144–45, and exhibit 11 (COBRA Continuation Coverage Election Notice).

191 Id. at 144.

192 Id. at 150–52, and exhibit 12 (Patient Statement of Account).

G. After–Acquired Evidence of Plaintiff's Violations of Defendant's Policies

1. Plaintiff's failure to disclose her criminal conviction on her employment application

On the date of plaintiff's deposition taken on February 3, 2012, Executive Director Susan Klingel learned that plaintiff had failed to disclose her criminal conviction when applying for employment on June 16, 2006.¹⁹³ Plaintiff was convicted of a misdemeanor for “under-ringing” items ( i.e., ringing up products at a price that is less than actual price) during her employment as a cashier at Wal–Mart.¹⁹⁴ As part of her application, however, plaintiff answered “No” to the question, “Have you ever been convicted of a crime?” ¹⁹⁵ Plaintiff also signed a certification stating that “the facts contained in [the] application are true and complete.” ¹⁹⁶

193 Doc. no. 23–3 (Affidavit of Susan Klingel) ¶ 19; see also doc. no. 22–1 (Deposition of Sheba Rhodes), at 22, and exhibit 1(Employment Application).

194 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 8–9, 22. For a definition of “under-ringing,” see http:// www. termwiki. com/ EN: under- ring.

195 Doc. no. 22–1 (Deposition of Sheba Rhodes), exhibit 1(Employment Application), at 4.

196 Id. (alteration supplied).

In light of the certification, plaintiff admitted that making a false statement on her employment application was grounds for her termination. ¹⁹⁷ Executive Director Klingel attested that “[defendant] considers false statements in applications very serious, and [Klingel] will not hire or retain individuals who make false statements.” ¹⁹⁸ Klingel also attested that, “[h]ad [she] known about [plaintiff's] falsification of her application at a time when she was applying for employment or employed by [defendant], [Klingel] would have refused to hire [plaintiff] or terminated her employment.” ¹⁹⁹

197 Id. at 22–23.

198 Doc. no. 23–3 (Affidavit of Susan Klingel) ¶ 18 (alterations supplied).

199 Id. ¶ 19 (alterations supplied).

Plaintiff designated the testimony regarding her criminal conviction as “disputed” on the grounds that

Defendant should have run a background check as part of the hiring process. (Alabama Dept. of Mental Health Division of Developmental Disabilities Administrative Code, Ch. 580–5–31–.02(5)(a) and 580–5–31–.02(5)(a)2). Plaintiff admitted to a misdemeanor, not a felony. The judge told her misdemeanors don't show on her record. (Rhodes Depo., p. 22). ²⁰⁰
Because plaintiff's arguments that defendant should have run a background check, and that a judge should have explained the significance of a misdemeanor, are not admissible evidence sufficient to dispute the allegation that she did not disclose her criminal conviction on her employment application, this court will treat plaintiff's conviction as admitted.

200 Doc. no. 24 (Response in Opposition to Motion for Summary Judgment), at 13.

2. Plaintiff's failure to report violations of Behavior Support Plans (“BSPs”)

Also on the date of plaintiff's February 3, 2012 deposition, Executive Director Susan Klingel learned that plaintiff had allegedly witnessed Program Coordinator Kertrina Sharperson violate Behavior Support Plans (“BSPs”) “[n]umerous ... times,” and presumably for numerous clients, but did not report those violations in accordance with defendant's policies.²⁰¹ Defendant's “Individual Abuse, Neglect, and Mistreatment Policy” states that “the failure to report suspected cases of individual abuse, neglect, or mistreatment (either physical or mental) for any reason, constitutes a serious neglect of duty on the part of the person witnessing the abuse, neglect, or mistreatment.” ²⁰²

201 Doc. no. 23–3 (Affidavit of Susan Klingel) ¶ 20; see also doc. no. 22–1 (Deposition of Sheba Rhodes), at 190, 193 (alteration supplied).

202 Doc. no. 22–1 (Deposition of Sheba Rhodes), exhibit 8 (Individual Abuse, Neglect, and Mistreatment), at 209.

In light of the policy, plaintiff admitted that failure to report the violation of a BSP was grounds for her termination.²⁰³ Executive Director Susan Klingel attested that “these failings on [plaintiff's] part would result in her termination if she was still employed by [defendant].” ²⁰⁴

203 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 193 (alteration supplied).

204 Doc. no. 23–3 (Affidavit of Susan Klingel) ¶ 20 (alterations supplied).

III. MOTION TO STRIKE PORTIONS OF PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Defendant filed a motion requesting three separate forms of relief: to hold that plaintiff has admitted some facts that defendant advanced in support of summary judgment; to strike other facts that plaintiff advanced in opposition to summary judgment; or, in the alternative, to provide guidance on the proper manner for defendant to formulate its response.²⁰⁵ For the reasons explained below, the requests will be granted in part and denied in part.

205 Doc. no. 26 (Motion to Strike Portions of Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment).

A. Motion to Hold Facts Admitted

Defendant first asks this court to hold that plaintiff has admitted defendant's undisputed facts numbered 68 and 69, which concern Program Coordinator Sharperson's response to Aide Gina Brand's “question” regarding the appropriateness of plaintiff's practices of instructing Christina to place her head on the desk, of allowing her to fall sleep while class was in session, and of discouraging aides from interacting with her one-on-one.²⁰⁶ Defendant's allegedly undisputed facts numbered 68 and 69 state as follows:

206 See doc. no. 23–4 (Affidavit of Kertrina Sharperson) ¶ 7.

68. [Program Coordinator Kertrina] Sharperson attested that when [Aide] Gina Brand told her [plaintiff] was engaging in a practice of instructing Christina to place her head down and encouraging aides to leave her alone, she responded to Ms. Brand that “this was not a correct way of dealing with Christina, because sleep is never encouraged and clients are at the Arc for affirmative interaction, not isolation or rest. (Sharperson Aff., ¶ 7).

69. [Program Coordinator] Sharperson testified that she immediately “indicated to Ms. Brand that [they] needed to report this matter to [Medicaid Program Coordinator] Roslyn Bridges for a complete investigation pursuant to the Arc's abuse, neglect and mistreatment policy.” ( Id.).²⁰⁷
Plaintiff responded to those statements as follows:

207 Doc. no. 21 (Brief in Support of Motion for Summary Judgment), at 12–13 (alterations supplied).

68. Disputed. This statement has not been corroborated by [Aide] Gina Brand.

69. Disputed to the extent this statement has not been corroborated by Gina Brand.²⁰⁸

208 Doc. no. 24 (Response to Motion for Summary Judgment), at 8 (alterations supplied).

Defendant argues that “plaintiff disputed the facts but did not provide citation to any materials from the record to support the dispute. ( Id. at 8). Accordingly, pursuant to this Court's Uniform Initial Order, [defendant's] statements of fact no. 68 and 69 are due to be admitted.” ²⁰⁹ Plaintiff concedes that her response omits any citation to the record, but contends that:

209 Doc. no. 26 (Motion to Strike Portions of Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment), at 3 (alteration supplied).

Defendant's alleged facts nos. 68 and 69 contain alleged statements made by [Aide] Gina Brand, which are hearsay, and Plaintiff disputes the statements to that extent. Plaintiff did not dispute [Program Coordinator] Sharperson's testimony, merely the portion that is hearsay. The cites were inadvertently left off, but are identical to the Defendant's: Sharperson Aff., ¶ 7.²¹⁰

210 Doc. no. 31 (Response to Motion to Strike Portions of Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment), at 2.

Indeed, Program Coordinator Sharperson's allegation that Aide Brand “told her [plaintiff] was engaging in a practice of instructing Christina to place her head down and encouraging aides to leave her alone” is hearsay, and does not fall within an exception that would permit its admission.²¹¹ This court thus holds that, with the exception of that portion of defendant's undisputed fact numbered 68, defendant's undisputed facts numbered 68 and 69 are deemed to have been admitted.

211 Doc. no. 21 (Brief in Support of Motion for Summary Judgment), at 12 (alteration supplied).

B. Motion to Strike or, in the Alternative, for Further Court Guidance

Defendant next asks this court to strike plaintiff's additional undisputed facts, with the exception numbers 2, 3, 7, 11, 12, 16 and 34, on the grounds that they “fail to comport with this Court's requirement that they be set out in separately numbered paragraphs. At the very least, The Arc requires guidance from this Court as to how to formulate responses.” ²¹²

212 Doc. no. 26 (Motion to Strike Portions of Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment), at 5.

Although it is true that many of the allegedly undisputed facts that were advanced by both parties are not set out in separately numbered paragraphs, the parties have responded to each others' briefs,²¹³ and this court has managed to parse those responses. Accordingly, the motion to strike plaintiff's additional, allegedly undisputed facts is denied as moot.

213 See doc. no. 21 (Brief in Support of Motion for Summary Judgment); doc. no. 24 (Response to Motion for Summary Judgment).

IV. MOTION TO STRIKE PORTIONS OF THE AFFIDAVIT OF
CONSTANCE JONES

Defendant moves to strike the principal part of the only evidence that plaintiff provides in opposition to summary judgment: i.e., a portion of the affidavit of Constance Jones, an aide formerly employed by defendant, and the entire attached exhibit (an electronic mail (“e-mail”) message sent by Jones to Executive Director Susan Klingel and others to tender her resignation and inform them of her rationale for leaving her employment at The Arc). ²¹⁴ For the reasons explained below, defendant's motion to strike will be granted.

214 Doc. no. 29 (Motion to Strike Portions of the Affidavit of Constance Jones).

A. Summary of Former Aide Constance Jones's E–Mail and Affidavit

As noted in Section II(E)(1), supra, Aide Jones resigned her position under acrimonious circumstances: she was suspended on an accusation that she had abused two clients, including Christina, and she believed that she “was being singled out and harassed and well as falsely accused of [those] two incidents.” ²¹⁵ Jones's nine-page, single-spaced e-mail explaining her reasons for leaving contained scandalous accusations of misconduct by various members of defendant's staff toward plaintiff and Jones, many of which are not germane to this action.²¹⁶ In order to place the email into context, this discussion will briefly summarize Aide Jones's claims.

215 Doc. no. 25–1 (Affidavit of Constance Jones), exhibit A (Jones E–Mail), at 8.

216 See id., exhibit A (Jones E–Mail).

Among other things, Jones alleged that Program Coordinator Kertrina Sharperson and Qualified Mental Retardation Professionals David Lane and Ann Finley falsely accused her of “making a pass” at the husband of Instructor Tangela Gardner in church, and wrote her up for gossiping about the incident. ²¹⁷ Jones also alleged that Gardner took clients to various unauthorized locations in order to permit Gardener to conduct her personal affairs and purchase food stamps, clothing, and lottery tickets ²¹⁸ However, when Jones reported Gardner to Sharperson and Finley, neither supervisor took action.²¹⁹

217 Id., exhibit A (Jones E–Mail), at 8.

218 Id., exhibit A (Jones E–Mail), at 14.

219 Id., exhibit A (Jones E–Mail).

Additionally, Jones alleged that she was regularly physically assaulted by the clients, that her supervisors would refuse to assist with restraining violent clients, and that QMRP Finley stated that rendering such assistance was not in her job description.²²⁰ Further, Jones alleged that, when she complained about Finley and Program Coordinator Sharperson to Medicaid Program Coordinator Roslyn Bridges, Sharperson and Finley asked Jones why she was talking to white people about her business.²²¹ Jones also alleged that, after she injured her leg in an on-the-job accident, Sharperson ordered her to continue performing strenuous physical tasks, and to stop using crutches or attending physical therapy.²²²

220 Id., exhibit A (Jones E–Mail).

221 Doc. no. 25–1 (Affidavit of Constance Jones), exhibit A (Jones E–Mail), at 14–15.

222 Id., exhibit A (Jones E–Mail), at 9–10.

In addition to making a plethora of claims that are not pertinent to this case, the e-mail from Aide Jones addresses one relevant subject: i.e., the events allegedly precipitating the complaint against plaintiff by Aide Brand to Program Coordinator Sharperson. Briefly, the Jones e-mail alleges that Brand was coerced by Sharperson and QMRP Finley into making the complaint after Christina became violent and struck another client.²²³ See Section II(E)(1), supra.

223 Id., exhibit A (Jones E–Mail), at 11–14.

The affidavit from Aide Jones restates her claims regarding the events precipitating the complaint against plaintiff by Aide Brand to Program Coordinator Sharperson: i.e., that the complaint was coerced by Sharperson and QMRP Finley.²²⁴ The affidavit then makes the additional contention that Sharperson introduced the practice of instructing Christina to place her head on the desk, and that Finley adopted the practice.²²⁵

224 Doc. no. 25–1 (Affidavit of Constance Jones) ¶¶ 6–7.

225 Id. ¶ 8.

B. Motion to Strike

Defendant moves to strike the following lengthy paragraph from former Aide Constance Jones's affidavit:

After the incident [involving Christina's physical assault on another client, Julia] had been taken care of and documented, [plaintiff] came into the room and asked [Aide Constance Jones] and [Aide] Gina Brand what was going on. [Constance Jones] told [plaintiff] what happened in front of Gina Brand. [Plaintiff] read the file notes and talked to [Brand and Jones]. [Brand] told [plaintiff], “now I know what you mean about Christina.” The air conditioner was not working. [Jones] asked [plaintiff] if [they] could go to the cafeteria. [Plaintiff] said she would have to ask permission first. [Plaintiff] began explaining to [Brand], Christina's behavioral problems. [Brand] then told [plaintiff] and [Jones] that she did not like [three of defendant's clients: i.e.,] John, Maria, or Christina. [Plaintiff] and [Jones] listened to [Brand's] complaint. [Plaintiff, Brand, and Jones] moved to the cafeteria. [Brand] went to break, and every time she came back to the room she would tell [plaintiff and Jones] a different story that [QMRP] Ann [Finley] & [Program Coordinator] Kertrina [Sharperson] were trying to get her to snitch on [plaintiff] and [Jones]. [Sharperson and Finley] wanted [Brand] to tell them what goes on in [plaintiff's classroom,] room 12. [Brand's] story kept changing. [Brand] told [plaintiff and Jones] that [Sharperson] and [Finley] assured her that [plaintiff] nor [Jones] would be in [plaintiff's classroom] tomorrow. [Plaintiff] told [Brand], “what is there to snitch about? No one has done anything wrong.” [Brand] left the room for her lunch, and this time she came back and told [plaintiff and Jones] that [Sharperson] and [Finley] were putting her up to saying that something that she did not want to say and that if she had to be a snitch that she would quit her job first. [Plaintiff] began asking [Brand] what was she talking about. [Jones] got up and took [a client,] Julia[,] to [another classroom] to change her undergarments. When [Jones] returned, [plaintiff] told [Jones] that [Brand] said that [Jones] had thrown Christina and [another client,] Jeff[,] down in a chair and Ann Finley was watching [Jones] through the window in [plaintiff's classroom]. [Jones] told [Plaintiff] that [she] never threw either client in a chair. [Jones] later was asked by [Sharperson] to go see [Medicaid Program Coordinator] Roslyn [Bridges] about [Jones's] family leave form, that [Jones] had allegedly put in. [Jones] told [Sharperson] that [she] did not have a leave form put in. Once [Jones] left the classroom and got to the office, [Sharperson] laughed at [Jones] and told [her] that Roslyn Bridges wanted to speak with [Jones] and [Jones] was asked to have a seat.²²⁶
Defendant also moves to strike the e-mail sent by Aide Jones to explain her decision to resign from her position at The Arc.²²⁷

226 Doc. no. 29 (Motion to Strike Portions of the Affidavit of Constance Jones), at 2–4; see also doc. no. 25–1 (Affidavit of Constance Jones) ¶ 7 (alterations supplied).

227 Doc. no. 29 (Motion to Strike Portions of the Affidavit of Constance Jones), at 4.

Defendant argues that the foregoing affidavit paragraph and the entire attached e-mail constitute inadmissible hearsay.²²⁸ Plaintiff attempts to render the evidence admissible by characterizing it as a party admission, a business record, a present sense impression, an excited utterance, and a statement showing a then-existing state of mind.²²⁹ Additionally, plaintiff argues that the evidence is not hearsay because she does not offer it to prove the truth of the matter asserted.²³⁰

228 Id.

229 Doc. no. 24 (Response in Opposition to Motion to Strike Portions of the Affidavit of Constance Jones), at 2–4.

230 Id. at 4.

Plaintiff first deems Aide Jones's affidavit and e-mail to constitute party admissions because “[Aide] Jones, [Aide] Brand and [plaintiff] were all employees at the time of the events recounted by Ms. Jones in her affidavit, and the discussions were about matters within the scope of that relationship.” ²³¹ A statement qualifies as a party admission on the grounds that its author is the opposing party's employee if the statement is “offered against an opposing party and ... made by the party's agent or employee on a matter within the scope of that relationship and while it existed.” Fed.R.Evid. 801(d)(2)(D) (emphasis supplied). The first sentence of the e-mail sent by Aide Jones states that she thereby resigns from her position at The Arc.²³² It is self-evident that an e-mail tendering an employee's resignation is not a statement made within the scope of the employment relationship while it exists, regardless of whether the e-mail concerns events that occurred within the scope of that relationship. In Young v. James Green Management, Inc., 327 F.3d 616 (7th Cir.2003), the Seventh Circuit confronted the question of whether a resignation letter constituted an employer's party admission, and concluded that the letter was not admissible as a result of a “fundamental deficiency”:

231 Doc. no. 24 (Response in Opposition to Motion to Strike Portions of the Affidavit of Constance Jones), at 2–3 (alterations supplied).

232 Doc. no. 25–1 (Affidavit of Constance Jones), exhibit A (Jones E–Mail), at 8.

[The employee] was not speaking as an employee on behalf of [the employer] when he resigned from his employment and accused [the employer] of racial discrimination; to the contrary, in a very overt manner, [the employee] was acting not only independently of [the employer] but also as its adversary. Because [the employee's] out-of-court statement was made in the context of terminating his employment (and placing himself in an adversarial relationship with [the employer] ), the justification for Rule 801(d)(2)(D) does not exist because [the employee] no longer was inhibited by his relationship with the principal from making erroneous or underhanded comments which could harm the principal.
Id. at 622–23 (internal quotations omitted) (alterations supplied).

Aide Jones's affidavit was notarized on April 16, 2012, i.e., nearly two years after she resigned her employment via e-mail on August 17, 2010.²³³ Accordingly, neither the affidavit nor the e-mail is a statement made within the scope of the employment relationship while it existed, and neither is admissible as a party admission.

233 See id. at 5, and exhibit A (Jones E–Mail), at 7.

Plaintiff next argues that Aide Jones's e-mail constitutes a business record because it “was made by her pursuant to defendant's complaint policy and was kept in the ordinary course of business by defendant as part of its investigation into her complaints.” ²³⁴ A statement qualifies as a record of a regularly conducted activity if it records an act, event, condition, opinion, or diagnosis and

234 Doc. no. 24 (Response in Opposition to Motion to Strike Portions of the Affidavit of Constance Jones), at 3.

(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.
Fed.R.Evid. 803(6) (emphasis supplied). “For [the business record] exception to be available, all persons involved in the process must be acting in the regular course of business—otherwise, an essential link in the trustworthiness chain is missing.” Williams v. Asplundh Tree Expert Co., No. 3:05–CV–479–J–33MCR, 2006 WL 2868923, *9 (M.D.Fla. Oct. 6, 2006) (internal quotations and citations omitted) (alteration supplied). Accordingly, plaintiff must show that “[a]ll participants, including the observer or participant furnishing the information to be recorded, were acting routinely, under a duty of accuracy, with employer reliance on the result, or in short, in the regular course of business.” Fed.R.Evid. 803(6), Advisory Committee Note (alteration supplied).

The first sentence of Aide Jones's e-mail states that Jones “hereby resign[s] from [her] job at The Arc of Madison, for these reasons.” ²³⁵ Thus, it appears that the purpose of the e-mail was to tender Jones's resignation and explain her reasons for doing so, not to make a complaint in accordance with a business duty under a complaint policy. Indeed, plaintiff cites no evidence to show that defendant had such a policy, that defendant investigated Jones's various claims, or that defendant kept her e-mail as part of the investigation. Accordingly, there is no indication that the e-mail was sent or kept within the regular course of business. Thus, it is not admissible as a business record.

235 Doc. no. 25–1 (Affidavit of Constance Jones), exhibit A (Jones E–Mail), at 8 (alterations supplied).

Plaintiff then argues that Aide Jones's e-mail and affidavit contain present sense impressions in the form of “statement[s] by [Aide] Brand, [plaintiff], or others describing or explaining an event or condition, made while or immediately after the declarant perceived it,” ²³⁶ and that the evidence contains excited utterances because the statements “are all part of a startling event or condition experienced by [plaintiff] and Ms. Jones, being investigated by their employer for abuse ... while the declarant was under the stress of excitement that it caused.” ²³⁷ As evident from the language of plaintiff's arguments, a present sense impression is a “statement describing or explaining an event or condition, made while or immediately after the declarant perceived it,” Fed.R.Evid. 803(1), and an excited utterance is a “statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” Fed.R.Evid. 803(2) (emphasis supplied).

236 Doc. no. 24 (Response in Opposition to Motion to Strike Portions of the Affidavit of Constance Jones), at 3 (alterations supplied).

237 Id. (alteration supplied).

The most significant practical difference between a present sense impression and an excited utterance lies “in the time lapse allowable between event and statement.” Fed.R.Evid. 803(1)-(2), Advisory Committee Note. The exception for present sense impressions requires “substantial contemporaneity of event and statement,” but “recognizes that in many, if not most, instances precise contemporaneity is not possible, and hence a slight lapse is allowable.” Id. (alteration supplied). Under the exception for excited utterances, “the standard of measurement is the duration of the state of excitement.” Id.

The Fifth Circuit, in a case involving Rule 803(1) [the present sense impression exception], agreed with the District of Columbia Circuit that a delay of 15 to 45 minutes in reporting an incident does not qualify reporting the incident ‘immediately’ after it occurred. See United States v. Cain, 587 F.2d 678, 681 (5th Cir.1979),²³⁸ citing Hilyer v. Howat Concrete Co., 578 F.2d 422, 426 n. 7, 188 U.S.App.D.C. 180 (D.C.Cir.1978) (“an out-of-court statement made at least fifteen minutes after the event it describes is not admissible unless the declarant was still in a state of excitement resulting from the event [which would render the statement admissible under the ‘excited utterance’ exception to the hearsay rule, Fed.R.Evid. 803(2) ]”).
Versata Software, Inc. v. Internet Brands, Inc., No. 2:08–CV–313–WCB, 2012 WL 2595275, *31 (E.D.Tex. July 5, 2012) (first alteration supplied) (second alteration in original) (emphasis supplied) (footnote supplied).

238 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) ( en banc ), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of business on September 30, 1981.

Defendant moves to strike only the portion of Aide Constance Jones's affidavit which describes the events that allegedly motivated Program Coordinator Kertrina Sharperson and Qualified Mental Retardation Professional Ann Finley to coerce Aide Gina Brand into making the complaint against plaintiff after Christina became violent and struck another client.²³⁹ Those events allegedly occurred on or about August 5, 2010.²⁴⁰ Defendant also moves to strike Jones's e-mail.²⁴¹ Plaintiff has presented no evidence regarding the dates when the additional events described therein occurred. In any case, many of those events are not relevant to this action. See Section IV(A), supra. Jones's e-mail was sent on August 17, 2010, and her affidavit was notarized on April 16, 2012.²⁴² Because the e-mail is nearly two weeks removed, and the affidavit is nearly two years removed, from any material events described in the documents, the evidence is not admissible as a present sense impression or an excited utterance.

239 Doc. no. 29 (Motion to Strike Portions of the Affidavit of Constance Jones), at 2–4; see also doc. no. 25–1 (Affidavit of Constance Jones) ¶ 7 (alterations supplied).

240 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 47–48, 210.

241 Doc. no. 29 (Motion to Strike Portions of the Affidavit of Constance Jones), at 4.

242 Doc. no. 25–1 (Affidavit of Constance Jones) at 5, and exhibit A (Jones E–Mail), at 7.

Plaintiff then argues that Aide Jones's e-mail and affidavit contain evidence of then-existing state of mind because they show “intent, motive or plan by [ Program Coordinator ] Kertrina Sharperson to get [plaintiff].” ²⁴³ A statement of then-existing mental condition is a “statement of the declarant's then-existing state of mind (such as motive, intent, or plan).” Fed.R.Evid. 803(3) (emphasis supplied). As the declarant is Jones, not Sharperson, neither the e-mail nor the affidavit is admissible as evidence of Sharperson's then-existing mental condition.

243 Doc. no. 24 (Response in Opposition to Motion to Strike Portions of the Affidavit of Constance Jones), at 5–6 (alterations and emphasis supplied).

Plaintiff further argues that Aide Jones's e-mail and affidavit are not hearsay because they “can be considered by the court not to establish the underlying truth of the matters discussed therein, but rather to show discrepancies in the version of factual events cited by the defendant's witnesses, establishing the existence of serious and significant material fact questions that preclude summary judgment.” ²⁴⁴ Yet, if Jones's allegations regarding Program Coordinator Sharperson's motivations for coercing Aide Brand into making a complaint against plaintiff were not offered for their truth, then it is not clear how the evidence could establish “the existence of serious and significant material fact questions that preclude summary judgment.” ²⁴⁵ See Williams, 2006 WL 2868923, at *9 (rejecting the argument that a letter regarding the plaintiff's allegations of racial discrimination was not hearsay because it was not offered for its truth on the grounds that, “[i]n explaining the relevance of these statements, [the plaintiff] says only that they are ‘clearly probative of central issues in the case.’ [The plaintiff] has not shown any relevance these statements would have except as evidence of their truth.”) Accordingly, neither the e-mail nor the affidavit is admissible as evidence not offered for its truth.

244 Id. at 4.

245 See id.

Finally, plaintiff's arguments utterly fail to address the fact that Aide Jones's e-mail and affidavit are replete with statements that contains multiple levels of hearsay: e.g., “[Aide Brand] told [plaintiff and Jones] that [Program Coordinator Sharperson] and [QMRP Finley] assured her that [plaintiff] nor [Jones] would be in [plaintiff's classroom] tomorrow”; and, “When [Jones] returned, [plaintiff] told [Jones] that [Brand] said that [Jones] had thrown Christina and [another client,] Jeff[,] down in a chair and Ann Finley was watching [Jones] through the window in [plaintiff's classroom].” ²⁴⁶ Plaintiff has not addressed, let alone established, why every level of hearsay should be admitted. Thus, the motion to strike paragraph 7 of Aide Jones's affidavit and the entire attached e-mail will be granted.

246 Doc. no. 25–1 (Affidavit of Constance Jones) ¶ 7 (alterations supplied), and exhibit A (Jones E–Mail), at 12–13 (alterations supplied).

V. MOTION FOR SUMMARY JUDGMENT

Defendant moves for summary judgment on plaintiff's claim for wrongful termination in violation of the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (“FMLA”).²⁴⁷ Under the FMLA, an eligible employee ²⁴⁸ is entitled to up to twelve weeks of leave each year to care for a serious health condition of the employee, or the employee's child, spouse, or parent. See29 U.S.C. § 2612(a)(1).²⁴⁹ The FMLA further provides that

247 Doc. no. 21 (Brief in Support of Motion for Summary Judgment), at 36.

248 An “eligible employee” is defined as “an employee who has been employed—(i) for at least 12 months by the employer with respect to whom leave is requested under section 2612 of this title; and (ii) for at least 1,250 hours of service with such employer during the previous 12–month period.” 29 U.S.C. § 2611(2)(A).

249 .29 U.S.C. § 2612(a)(1) establishes an eligible employee's entitlement to leave as follows:
Subject to section 2613 of this title, an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12–month period for one or more of the following:
(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter or parent has a serious health condition
(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.

any eligible employee who takes leave under section 2612 of this title for the intended purpose of the leave shall be entitled, on return from such leave

(A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or

(B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.
29 U.S.C. § 2614(a)(1)(A)-(B). Such entitlements are limited by a subsequent section, providing that an eligible employee is not entitled to “any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.” 29 U.S.C. § 2614(a)(3)(B).

To secure the availability of the foregoing entitlements, Congress declared it “unlawful for any employer to interfere with, restrain, or deny the exercise of[,] or the attempt to exercise, any right provided under this subchapter [of the FMLA].” 29 U.S.C. § 2615(a)(1). In addition, Congress declared it “unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by [the FMLA],” 29 U.S.C. § 2615(a)(2), or because such individual

(1) has filed any charge, or has instituted or caused to be instituted any proceedings, under or related to [the FMLA];

(2) has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under [the FMLA]; or

(3) has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under [the FMLA].
29 U.S.C. § 2615(b); see also29 C.F.R. § 825.220(c) (“An employer is prohibited from discriminating against employees ... who have used FMLA leave.”).

Consistent with the foregoing statutory provisions, the case law interpreting the FMLA recognizes two types of claims for alleged violations of the Act: “ interference claims, in which an employee asserts that his employer denied or otherwise interfered with his substantive rights under the Act ... and retaliation claims, in which an employee asserts that his employer discriminated against him because he engaged in activity protected by the Act....” Strickland v. Water Works and Sewer Board of the City of Birmingham, 239 F.3d 1199, 1206 (11th Cir.2001) (emphasis added) (citations and footnote omitted). Accord O'Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1352 (11th Cir.2000). FMLA interference and retaliation claims have different elements.

To state a claim of interference with a substantive right, an employee need only demonstrate by a preponderance of the evidence that he was entitled to the benefit denied. O'Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1353–54 (11th Cir.2000); King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir.1999). In contrast, to succeed on a retaliation claim, an employee must demonstrate that his employer intentionally discriminated against him in the form of an adverse employment action for having exercised an FMLA right. King, 166 F.3d at 891. In other words, a plaintiff bringing a retaliation claim faces the increased burden of showing that his employer's actions “were motivated by an impermissible retaliatory or discriminatory animus.” Id.
Strickland, 239 F.3d at 1206–07 (emphasis supplied); see also Earl v. Mervyns, Inc., 207 F.3d 1361, 1367 (11th Cir.2000); Graham v. State Farm Mutual Insurance Co., 193 F.3d 1274, 1283 (11th Cir.1999); King v. Preferred Technical Group, 166 F.3d 887, 892 (7th Cir.1999); Dollar v. Shoney's, Inc., 981 F.Supp. 1417, 1419 (N.D.Ala.1997); Kaylor v. Fannin Regional Hospital, Inc., 946 F.Supp. 988, 999 (N.D.Ga.1996); Peters v. Community Action Committee, Inc., 977 F.Supp. 1428, 1435 (M.D.Ala.1997).

The first count of plaintiff's complaint is entitled “Wrongful Termination in Violation of FMLA,” and alleges that “Defendant's termination of Plaintiff, Sheba Rhodes, for requesting time off to for her own serious health condition, violates the Family and Medical Leave Act of 1993, 29 U.S.C § 2601 et seq.” ²⁵⁰ Because plaintiff's complaint “simply assert[s] that she was terminated ‘for requesting time off’ under the FMLA,” defendant argues that plaintiff's claim is only for retaliation, and not for interference. ²⁵¹ Plaintiff's response disputes this contention.²⁵²

250 Doc. no. 1 (Complaint) ¶ 16.

251 Doc. no. 21 (Brief in Support of Motion for Summary Judgment), at 34 (quoting Doc. no. 1 (Complaint) ¶ 16) (emphasis in original).

252 Doc. no. 24 (Response in Opposition to Motion for Summary Judgment), at 34.

[T]ermination while on FMLA leave can create both a cognizable ‘interference’ claim and a cognizable ‘retaliation’ claim. Strickland v. Water Works and Sewer Bd., 239 F.3d 1199 (11th Cir.2001) (recognizing both causes of action for a termination); O'Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349 (11th Cir.2000) (finding both causes of actions when the plaintiff did not specify which FMLA provision the employee was proceeding under).
Smith v. Boyd Brothers Transportation, No. 2:04–CV1063–MHT (WO), 2006 WL 208696, *5 (M.D.Ala. Jan. 25, 2006). The Smith court rejected a defendant employer's argument that an employee “did not properly assert an interference claim,” reasoning that:

[the employee's] interference claim and his retaliation claim arise out of the same factual evidence and, indeed, ... his interference claim is essentially subsumed within his retaliation claim ( [the employee's] retaliation claim differs from his interference claim in that he must prove not only that he was terminated while on FMLA leave (the interference claim) but also that he was terminated while on FMLA leave for the specific purpose of retaliating or discriminating against him (the retaliation claim)).
Smith, 2006 WL 208696, at *5–6 (alterations supplied). In accordance with Strickland,O'Connor, and Smith, this court will consider plaintiff's termination as a basis for both claims. Because the interference analysis “tracks closely the FMLA retaliation analysis,” Franks v. Indian Rivers Mental Health Center, No. 7:08–CV–1035–SLB, 2012 WL 4736444, *53–54 (N.D.Ala. Sept. 30, 2012), this discussion will address both FMLA claims simultaneously.

“As under Title VII, a claim of FMLA retaliation can be made out by direct evidence.” Gross–Jones v. Mercy Medical, 874 F.Supp.2d 1319 (S.D.Ala.2012) (citing Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1243 (11th Cir.2010)). Additionally:

When a plaintiff asserts a claim of retaliation under the FMLA, in the absence of direct evidence of the employer's intent, we apply the same burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for evaluating Title VII discrimination claim. See Brungart v. BellSouth Telecomm. Inc., 231 F.3d 791, 798 (11th Cir.2000). In order to state a claim of retaliation, an employee must allege that: (1) he engaged in a statutorily protected activity; (2) he suffered an adverse employment decision; and (3) the decision was causally related to the protected activity. Parris v. Miami Herald Publ'g Co., 216 F.3d 1298, 1301 (11th Cir.2000).
Strickland, 239 F.3d at 1206–07;see also Earl, 207 F.3d at 1367;Graham, 193 F.3d at 1283;King, 166 F.3d at 892;Dollar, 981 F.Supp. at 1419;Kaylor, 946 F.Supp. at 999;Peters, 977 F.Supp. at 1435.

Under the McDonnell Douglas burden-shifting framework referenced in Strickland, the plaintiff bears the initial burden of establishing a prima facie case of intent to discriminate. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817;Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252–53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The establishment of a prima facie case “creates a presumption that the employer unlawfully discriminated against the employee.” Burdine, 450 U.S. at 254, 101 S.Ct. 1089.

The effect of the presumption of discrimination is to shift to the employer the burden of producing, but not proving, some legitimate, nondiscriminatory reason for the contested employment action. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. To satisfy the 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.” Burdine, 450 U.S. at 254–55, 101 S.Ct. 1089 (citation and footnote omitted).

Once the defendant has borne its burden of production, “the plaintiff has the opportunity to come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment action.” Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir.1997) (citations omitted), cert. denied sub nom. Combs v. Meadowcraft Co., 522 U.S. 1045, 118 S.Ct. 685, 139 L.Ed.2d 632 (1998).

[T]his circuit's post-Hicks decisions uniformly hold that once a plaintiff has established a prima facie case and has put on sufficient evidence to allow a factfinder to disbelieve an employer's proffered explanation for its actions, that alone is enough to preclude [summary judgment or] entry of judgment as a matter of law.
Combs, 106 F.3d at 1532 (alterations supplied).

A. Plaintiff's Deposition Testimony

Defendant urges this court to dismiss plaintiff's claims “without even progressing to application of the traditional burden-shifting analysis” based on the “admissions” in the deposition testimony quoted in section II(H), supra. ²⁵³ According to defendant, plaintiff testified “that her termination had nothing to do with her protected FMLA activity, and further conced[ed] that because of her actions in violation of The Arc's policies, she would have been terminated regardless of what her supervisor thought or desired.” ²⁵⁴ Plaintiff's testimony included the following:

253 Doc. no. 30 (Reply in Support of Motion for Summary Judgment), at 12.

254 Id. (alteration supplied).

Q. You thought [that Program Coordinator Kertrina Sharperson] did not like you, not that you were [terminated for] taking FMLA, right?

A. I know that she did not like me.

Q. Right. But that was the reason that you thought she wanted you terminated, not FMLA?

A. Right.

Q. Okay.

A. Any reason. She wanted me terminated.

Q. She wanted you terminated because she had personal issues with you?

A. Right.²⁵⁵
Later, plaintiff testified as follows:

255 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 40–41 (alterations supplied).

Q. So even if it were the case that [Program Coordinator] Kertrina [Sharperson] somehow pressured [Aide] Gina [Brand], at the end of the day, Gina [Brand]'s statements that she gave to the investigators were still true statements, right?

A. Yes, that I read, yes.

Q. And you have no evidence that Kertrina [Sharperson] tried to coerce [Aides] Freddie Dowdell, Victoria Evans, Connie Laster, Beth Meagher, Michelle Timmons, or Donna Davis, right?

A. No.

....

Q. And all of those people that I just mentioned also came forward with statements indicating that you had acted in violation of the Behavior Support Plan, right?

A. Right.²⁵⁶
Plaintiff then testified:

256 Id. at 140 (alterations supplied).

Q. And with the documents that I have showed you today, in fact, it appears that the reason you were terminated is allegations and a finding that you violated the Behavior Support Plan, not anything about FMLA, right?

A. True.²⁵⁷
Later, plaintiff testified as follows:

257 Id. at 166.

Q. And you have now agreed with me that it was not Kertrina [Sharperson] that caused your termination, it was these other things that we've talked about, right?

A. The things on the paper, yes, but Kertrina [Sharperson] harassed me the whole time.

Q. But you are not bringing a claim about that harassment, right?

A. Right.

Q. So your claim for negligent training, hiring and supervision is not a valid claim, given the testimony you have given today, is it?

Mr. Auffenorde: Object to the form. That calls for a legal conclusion on the part of the witness.

Q. You have agreed with me that Kertrina Sharperson is not the one responsible for your termination, right?

A. She had everything to do with my termination.

Q. No. You have already testified repeatedly that the cause of your termination were the individuals who gave statements for the investigative report, right?

A. Right.

Q. So it was not Kertrina [Sharperson] who interfered with you taking FMLA leave, it was the fact that you did not follow the Behavior Support Plan and got reported for it that caused you not to get FMLA leave, right?

A. Right.²⁵⁸
Plaintiff also testified:

258 Id. at 194–95.

Q. Well, you've already testified that it was a violation of the Behavior Support Plan when you allowed her to leave her head on the desk, right?

A. Yes. I testified to that.

Q. And so it was, therefore, reasonable for the Arc to have determined that you violated the Behavior Support Plan, right?

Mr. Auffenorde: Object to the form.

A. Right.²⁵⁹

259 Id. at 219–20.

Defendant acknowledges that plaintiff prefaced some answers with caveats limiting their applicability to the contents of documents presented by defendant's counsel: e.g., by stating “According to the papers, yes”; and “that's what's on the paper.” ²⁶⁰ However, defendant argues that “plaintiff did not consistently attach caveats to her answers.” ²⁶¹ Upon review, none of the cases defendant cites stand for the proposition that if the plaintiff's use of caveats is not consistent, the court must construe her testimony as meaning that the caveats do not apply.

260 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 165–66.

261 Doc. no. 30 (Reply in Support of Motion for Summary Judgment), at 5 (emphasis supplied).

Instead, defendant's authorities discuss plaintiffs' unequivocal testimony. In Lightner v. City of Wilmington, 545 F.3d 260, 264 (4th Cir.2008), and Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1337 (8th Cir.1996), ²⁶² the plaintiffs flatly stated that they were fired in retaliation for investigating their employers' unlawful practices, which refuted their claims that they were fired because of their age, race, or gender. In Evans v. Stephens, 407 F.3d 1272 (11th Cir.2005),²⁶³ the plaintiff's testimony contradicted the testimony of several other witnesses, not portions of her own deposition. Id. at 1278. Finally, in Ross v. Jefferson County Department of Health, 701 F.3d 655 (11th Cir.2012),²⁶⁴ the Eleventh Circuit emphasized that the plaintiff made the “ unequivocal concession” that she did not feel like her termination had anything to do with her race. Id. at 661 (emphasis supplied).

262 See id.

263 See id.

264 Doc. no. 36 (Notice of Supplemental Authority), at 3.

Indeed, several courts from outside this Circuit have declined to hold the plaintiffs' deposition testimony to be dispositive and, instead, reviewed the entire record of the case to determine the viability of the plaintiffs' FMLA claims. See Moll v. Tyco Healthcare, No. 1:06–CV–00046, 2008 WL 420037, *14 (S.D.Ohio Feb. 14, 2008) (holding that, “inasmuch as Defendant argues Plaintiff's deposition testimony is proof that Plaintiff took no further FMLA leave after June, 2004, the Court will not construe Plaintiff's characterization of his leave as dispositive, but instead consider the record as a whole”); Collins v. United States Playing Card Co., 466 F.Supp.2d 954, 969 (S.D.Ohio 2006); Downs v. AOL Time Warner, Inc., No. 2:03–CV–1117, 2006 WL 162563, *28 (S.D.Ohio Jan. 20, 2006).

In Collins, the defendant argued that the plaintiff's testimony at his deposition was conclusive proof of the absence of a causal connection between his FMLA leave and his termination. The Collins plaintiff testified as follows:

Q. And it also would be accurate that after you took the time that you requested under the Family and Medical Leave Act, you were not penalized for taking that time, correct?

A. That's true.

...

Q. And you also claim that, in the alternative ... the company retaliated against you for taking FMLA leave?

A. No.

Q. They never did that, did they?

A. No, not as far as I know about.
Collins, 466 F.Supp.2d at 969 (internal citations omitted). The court, nevertheless, concluded that:

[The plaintiff's] testimony is not dispositive of whether there was a causal connection between the exercise of his FMLA rights and his termination.... [T]he evidence demonstrates a temporal proximity between the time [plaintiff] gave the Company his request for intermittent FMLA leave in November 2004, the onset of Corrective Actions that same month, and his termination in March 2005.... [The plaintiff] alleged in his Complaint and has not abandoned his claim that the Company retaliated against him for attempting to exercise his FMLA rights. The Court will not construe his deposition testimony, particularly in the context in which it was given, as dispositive.
Id. (footnote omitted) (alterations supplied). Similarly, in Downs v. AOL Time Warner:

Plaintiff was asked on deposition whether he has any “facts to dispute the reasons [Defendant] gave [Plaintiff] for the termination?” (Plaintiff's Depo. at 336). Plaintiff said he did not. ( Id.). Contrary to Defendant's assertion, the Court does not view Plaintiff's testimony as precluding a showing of pretext. Whether Plaintiff can establish pretext must considered in view of the record as a whole, not simply from one response Plaintiff gave on deposition.
Downs, 2006 WL 162563, at *28 (alterations in original). Because plaintiff attached caveats to her deposition testimony inconsistently, this court will not hold her testimony to be dispositive, but will consider the record as a whole.

B. Plaintiff's Direct Evidence

Direct evidence of discrimination “reflects a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir.2004) (quoting Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir.1999)). It “proves the existence of a fact without inference or presumption.” Wilson, 376 F.3d at 1086 (quoting Burrell v. Bd. of Trs. of Ga. Military Coll., 125 F.3d 1390, 1393 (11th Cir.1997)). “Only the most blatant remarks, whose intent could mean nothing other than to discriminate on the basis of some impermissible factor constitute direct evidence of discrimination.” Dixon [ v. Hallmark Companies, Inc.], 627 F.3d [849] at 854 [ (11th Cir.2010) ] (quoting Wilson, 376 F.3d at 1086). “If the alleged statement suggests, but does not prove, a discriminatory motive, then it is considered circumstantial evidence.” Akouri v. Fla. Dep't of Transp., 408 F.3d 1338, 1347 (11th Cir.2005) (citing Wilson, 376 F.3d at 1086).
Dockens v. Dekalb County School System, 441 Fed.Appx. 704, 708 (11th Cir.2011); see also Stokes v. City of Montgomery, No. 2:07–CV–686, 2008 WL 4369247, *23–24 (M.D.Ala. Sept. 25, 2008) (same). “Statementsmade by a non-decision maker are not probative of discriminatory intent as direct evidence.” Hyde v. K.B. Home, Inc., 355 Fed.Appx. 266, 272 (11th Cir.2009) (citing Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330 (11th Cir.1998)); see also Stokes, 2008 WL 4369247, at *23–24 (same).

During her deposition, plaintiff testified that, around the time she was gathering her paperwork to request FMLA leave, Program Coordinator Kertrina Sharperson told plaintiff and plaintiff's supervisor, Qualified Mental Retardation Professional Ann Finley, that she did not want plaintiff to have the surgeries that necessitated the leave because “it was too many people trying to take FMLA [leave]. And [plaintiff had] already taken FMLA [leave] twice and [she] was taking it again. [Sharperson] was tired of folks asking for FMLA [leave].” ²⁶⁵

265 Id. at 31, 164.

In addition to denying that Program Coordinator Sharperson ever made those statements,²⁶⁶ defendant argues that the statements are not relevant because Executive Director Susan Klingel is defendant's final decision-maker on hiring and firing, and she alone made the decision to terminate plaintiff's employment, without input from Sharperson.²⁶⁷ Plaintiff alleges that Klingel's decision was “influenced” by Sharperson, and that Sharperson claimed to have terminated employees in the past.²⁶⁸

266 Doc. no. 23–4 (Affidavit of Kertrina Sharperson) ¶¶ 3–4; doc. no. 23–1 (Deposition of Kertrina Sharperson), at 85.

267 Doc. no. 30 (Brief in Support of Motion for Summary Judgment), at 17; see also doc. no. 22–3 (Deposition of Susan Klingel), at 10, 16, 102, 104; doc. no. 23–3 (Affidavit of Susan Klingel) ¶ 15.

268 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 27–28, 30–32, 165, 194, 197, 199.

To rebut plaintiff's testimony, defendant claims that Executive Director Klingel based her decision on statements from nine employees who witnessed plaintiff's actions toward Christina, “all of whom plaintiff conceded were not coerced” by Sharperson.²⁶⁹ However, the independence of the witnesses is not relevant because plaintiff does not allege that the witnesses made or influenced the decision to terminate her employment. Because “the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment,” Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir.2000) (en banc), this court will credit plaintiff's testimony that Sharperson influenced the termination decision. Accordingly, Sharperson's alleged statements constitute direct evidence of interference and retaliation.

269 Doc. no. 30 (Brief in Support of Motion for Summary Judgment), at 17 (citing doc. no. 22–1 (Deposition of Sheba Rhodes), at 40).

C. Plaintiff's Prima Facie Case

“To state a claim under the FMLA [without direct evidence], a plaintiff must prove three elements at trial: (1) he availed himself of a protected right under the FMLA; (2) he suffered an adverse employment decision; and (3) there is a causal connection between the protected activity and the adverse employment decision.” Parris v. Miami Herald Publishing Co., 216 F.3d 1298, 1301 (11th Cir.2000) (alteration supplied) (citing Earl v. Mervyns, Inc., 207 F.3d 1361, 1367 (11th Cir.2000)).

Demonstrating a casual linkage at the summary judgment stage is far less onerous than proving causation by a preponderanceof the evidence at trial. At the summary judgment stage, “a plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated.” Meeks v. Computer Associates International, 15 F.3d 1013, 1021 (11th Cir.1994) (emphasis supplied) (quoting EEOC v. Reichhold Chemicals, Inc., 988 F.2d 1564, 1571–72 (11th Cir.1993)).

“At a minimum, a plaintiff must generally establish that the employer was actually aware of the protected expression at the time it took the adverse employment action.” Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 919 (11th Cir.1993); see also, e.g., Gupta v. Florida Board of Regents, 212 F.3d 571, 590 (11th Cir.2000); Farley v. Nationwide Mutual Insurance, 197 F.3d 1322, 1337 (11th Cir.1999) (emphasis supplied).

Plaintiff has borne her burden of proving a prima facie case of interference and retaliation. On July 12, 2010, plaintiff requested, and received, defendant's approval to take FMLA leave starting August 16, 2010. ²⁷⁰ On August 5, 2010, less than two weeks before her leave was scheduled to begin, plaintiff was suspended pending an investigation. ²⁷¹ A mere four days before her leave was scheduled to begin, defendant terminated plaintiff's employment.²⁷²

270 Doc. no. 22–1 (Deposition of Sheba Rhodes), exhibit 4 (2010 Request for FMLA Leave).

271 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 47–48, 210.

272 Id., exhibit 3 (Termination Notice).

Further, plaintiff's request, and approval, to take FMLA leave were not “wholly unrelated” to her termination because several of defendant's alleged decision-makers were “actually aware” of her FMLA status. See Meeks, 15 F.3d at 1021;Hairston, 9 F.3d at 919. Executive Director Susan Klingel testified that she is defendant's final decision-maker on hiring and firing, and that she alone made the decision to terminate plaintiff's employment. ²⁷³ Plaintiff alleged that Program Coordinator Kertrina Sharperson also influenced the decision.²⁷⁴

273 Doc. no. 22–3 (Deposition of Susan Klingel), at 10, 16, 102, 104; doc. no. 23–3 (Affidavit of Susan Klingel) ¶ 15.

274 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 27–28, 30–32, 165, 194, 197.

Klingel, Sharperson, and plaintiff's supervisor, Qualified Mental Retardation Professional Ann Finley, were each aware that plaintiff had been approved for FMLA leave prior to her termination.²⁷⁵ Although Medicaid Program Coordinator Roslyn Bridges, who conducted the investigation against plaintiff, allegedly was not aware of plaintiff's FMLA status,²⁷⁶ Bridges's lack of awareness is not relevant because Klingel testified, without contradiction, that Bridges had no input on the ultimate termination decision.

275 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 34–36; doc. no. 22–3 (Deposition of Susan Klingel), at 87–88; doc. no. 23–1 (Deposition of Kertrina Sharperson), at 80, 84.

276 Doc. no. 23–2 (Deposition of Roslyn Bridges), at 91.

D. Defendant's explanation

“Once a plaintiff establishes a prima facie case, the burden shifts to the employer to ‘articulate a legitimate, non[retaliatory] reason for the challenged employment action.’ ” Morgan v. Orange County, 477 Fed.Appx. 625, 628 (11th Cir.2012) (alteration in original) (quoting Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir.2000) ( en banc )). As an explanation for terminating plaintiff's employment,defendant alleges that plaintiff violated the Behavior Support Plan for Christina by attempting to manage her behavior by instructing her to put her head on the desk and allowing her to fall asleep while class was in session, which constituted neglect under defendant's “Individual Abuse, Neglect, and Mistreatment Policy.” ²⁷⁷

277 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 29, and exhibit 3 (Termination Notice); doc. no. 22–3 (Deposition of Susan Klingel), at 18 (alteration supplied).

E. Pretext

If the employer articulates a legitimate reason for the adverse decision:

the plaintiff must demonstrate that the employer's proffered reason is a pretext for retaliation. [Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir.2000) ( en banc ).] “Provided that the proffered reason is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason.” Id. at 1030. In addition, if the employer acted on an honestly held belief that the employee engaged in misconduct, even if it was mistaken, no retaliation exists. See EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1176–77 (11th Cir.2000).
Morgan v. Orange County, 477 Fed.Appx. 625, 628 (11th Cir.2012) (alteration supplied).

At the summary judgment stage, an employer's assertion that an employee was fired for violating a “ ‘work rule’ ... is arguably pretextual when [the employee] submits evidence (1) that [he or] she did not violate the cited work rule, or (2) that if [he or] she did violate the rule, other employees outside the protected class, who engaged in similar acts, were not similarly treated.”
Jordan v. Warehouse Services, 81 F.Supp.2d 1257, 1271 (M.D.Ala.2000) (alterations in original) (quoting Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1363 (11th Cir.1999)).

Under the second prong of the Jordan test, plaintiff offers evidence that she was one of several employees who followed the challenged practice of instructing Christina to put her head on the desk and allowing her to fall asleep while class was in session.²⁷⁸ Those other employees allegedly included plaintiff's supervisor, Qualified Mental Retardation Professional Ann Finley, and Finley's supervisor, Program Coordinator Kertrina Sharperson, who, in fact, introduced the practice.²⁷⁹ Plaintiff also notes that defendant did not investigate the way in which Finley or Sharperson treated Christina.²⁸⁰ However, plaintiff offers no evidence that Executive Director Susan Klingel knew of Finley and Sharperson's alleged violations. Indeed, plaintiff testified that she did not report Sharperson's behavior.²⁸¹

278 See doc. no. 22–1 (Deposition of Sheba Rhodes), at 61–62; doc. no. 25–1 (Affidavit of Constance Jones) ¶ 8.

279 Id.

280 Doc. no. 22–1 (Deposition of Sheba Rhodes), exhibit 6 (Investigation Report), at ARC000099.

281 Doc. no. 23–3 (Affidavit of Susan Klingel) ¶ 20; see also doc. no. 22–1 (Deposition of Sheba Rhodes), at 190, 193 (alteration supplied).

Unless a supervisor “knew of the events, the events cannot be considered in determining whether [the plaintiff] and [another employee] are similarly situated.” Knight v. Baptist Hospital of Miami, Inc., 330 F.3d 1313, 1317 n. 5 (11th Cir.2003) (alterations supplied); see also Dinkins v. Suffolk Transportation Service, Inc., No. 07–CV–3567, 2010 WL 2816624, *10 (E.D.N.Y. July 15, 2010) (“An employee who allegedly engaged in misconduct comparable to the plaintiff's is not similarly situated to the plaintiff when the employer is unaware of what the comparator employee supposedly did.”). Accordingly, plaintiff cannot establish that defendant's stated reason for her termination was pretextual on the grounds that similarly situated employees who did not request FMLA leave were treated more favorably.

Under the first prong of the Jordan test, plaintiff fares better. Plaintiff testified that she believed her strategy of managing Christina's behavior by instructing her to place her head on the desk to be consistent with that portion of Christina's Behavior Support Plan stating that, if she “needs a break from a task[,] then give her a break and try again after she has calmed down.” ²⁸² In addition to alleging that Program Coordinator Sharperson introduced the challenged practice, and that Sharperson and plaintiff's supervisor, QMRP Finley, themselves followed the practice,²⁸³ plaintiff asserted that Sharperson often visited her classroom, and frequently observed that Christina had fallen asleep with her head on the desk, but that Sharperson did not report these occurrences as a violation of defendant's policies. ²⁸⁴ Plaintiff also claimed that she repeatedly told Sharperson and another supervisor, QMRP David Lane, that Christina's medication was causing her to fall asleep in class.²⁸⁵

282 Id. at 205–206, and exhibit 5(BSP), at ARC000092 (alteration supplied).

283 See doc. no. 22–1 (Deposition of Sheba Rhodes), at 61–62; doc. no. 25–1 (Affidavit of Constance Jones) ¶ 8.

284 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 51–52, 62, 124–25, 202–03; doc. no. 23–1 (Deposition of Kertrina Sharperson), at 66.

285 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 51–52; doc. no. 23–1 (Deposition of Kertrina Sharperson), at 68.

To determine whether plaintiff has submitted evidence sufficient to show “that [he or] she did not violate the cited work rule,” Jordan, 81 F.Supp.2d at 1271 (alterations in original) (quoting Damon, 196 F.3d at 1363 (11th Cir.1999)), the inquiry is not whether plaintiff instructed Christina to place her head on the desk, or allowed her to fall asleep while class was in session, but rather whether plaintiff was aware that the practice constituted a violation of Christina's Behavior Support Plan and, thus, whether it was neglectful under defendant's “Individual Abuse, Neglect, and Mistreatment” policy. Crediting plaintiff's contentions that her supervisors themselves introduced or followed the practice, that her supervisors frequently observed Christina sleeping in class, and that her supervisors were aware of plaintiff's belief that Christina's medication was making her drowsy, it was reasonable for plaintiff to conclude that her supervisors had ratified the challenged practice as consistent with Christina's BSP.

Plaintiff's allegations are likewise sufficient to create a triable issue of fact regarding whether defendant terminated her employment based on an “honestly held belief” that she violated Christina's BSP. See Morgan, 477 Fed.Appx. at 628 (citing Total System, 221 F.3d at 1176–77). As discussed, plaintiff alleges that Program Coordinator Sharperson introduced the practices of: instructing Christina to place her head on the desk, and allowing her to fall asleep while class was in session; that Sharperson personally followed the practice; and that Sharperson often saw Christina asleep in class, but that Sharperson did not influence the decision to terminateplaintiff's employment based on plaintiff's resort to the same practice until four days before plaintiff was to begin her scheduled FMLA leave. Further, plaintiff alleges that she told Sharperson and QMRP Lane that Christina's medication was causing her to fall asleep in class, which calls into question defendant's honestly held belief that plaintiff was responsible for Christina's sleeping habits.

In sum, upon a review of the record as a whole, plaintiff has also presented indirect evidence of interference and retaliation.

F. State–Law Claims for Negligent Hiring, Training, Supervision, and Retention

Defendant moves for summary judgment on plaintiff's claims for negligent hiring, training, supervision and retention on two separate grounds: first, that defendant conducted a background check on Program Coordinator Kertrina Sharperson before offering her a position at The Arc, and found no cause for concern regarding her criminal or employment history; ²⁸⁶ and second, that Sharperson did not commit a tort against plaintiff.²⁸⁷

286 Doc. no. 21 (Brief in Support of Motion for Summary Judgment), at 43.

287 Id. at 41.

Plaintiff's complaint alleges that defendant “caused [her] harassment and termination” by negligently hiring, training, retaining, and supervising Program Coordinator Sharperson and “other employees” in violation of state law. ²⁸⁸ (Despite the complaint's reference to Sharperson and “other employees,” ²⁸⁹ plaintiff's responses to defendant's interrogatories only identified one employee with regard to whom defendant was allegedly negligent: i.e., Sharperson.²⁹⁰)

288 Doc. no. 1 (Complaint) ¶¶ 18–23 (alteration supplied).

289 See id. ¶¶ 18–23.

290 Doc. no. 22–1 (Deposition of Sheba Rhodes), exhibit 2 (Interrogatory Responses) ¶¶ 4–8.

Specifically, plaintiff states that Program Coordinator Sharperson “harassed” her, and that, “[d]ue to Defendant's failure to check Sharperson's references, and its failure to properly train and supervise Sharperson, she failed to follow FMLA guidelines and interfered with [plaintiff] taking [her] approved FMLA leave.” ²⁹¹ Accordingly, plaintiff testified that “the sum and substance of [her] harassment claim is that [ Sharperson ] harassed [her] and tried to get [her] fired.” ²⁹²

291 Id., exhibit 2 (Interrogatory Responses) ¶ 5 (alterations supplied).

292 Id. at 183 (alterations supplied).

Although plaintiff also states that Yolanda Watkins, a former supervisor who allegedly was intimate with both plaintiff and Program Coordinator Sharperson, was responsible for sexually harassing plaintiff, and “convinc[ing] [Sharperson] somehow that [plaintiff] was a bad employee, [and that she] wasn't doing what [she] was supposed to do,” ²⁹³ plaintiff testified that she had neither a harassment claim nor a negligence claim based on Watkins's actions.²⁹⁴

293 Id. at 167 (alterations supplied).

294 Id. at 163, 167, 186, 194.

Defendant first requests summary judgment on plaintiff's claims for negligent hiring, training, supervision, and retention because it conducted a background check on Program Coordinator Kertrina Sharperson before offering her a position at The Arc, and found no cause for concern regarding her criminal or employment history.²⁹⁵ Discussing the elements of negligent supervision, the Supreme Court of Alabama noted that:

295 Doc. no. 21 (Brief in Support of Motion for Summary Judgment), at 43.

In the master and servant relationship, the master is held responsible for his servant's incompetency when notice or knowledge, either actual or presumed, of such unfitness has been brought to him. Liability depends upon its being established by affirmative proof that such incompetency was actually known by the master or that, had he exercised due and proper diligence, he would have learned that which would charge him in the law with such knowledge. It is incumbent on the party charging negligence to show it by proper evidence.
Sanders v. Shoe Show, Inc., 778 So.2d 820, 824 (Ala.Civ.App.2000) (quoting Collins v. Wilkerson, 679 So.2d 1100, 1103 (Ala.Civ.App.1996); Lane v. Central Bank of Alabama, N.A., 425 So.2d 1098, 1100 (Ala.1983)).

“[T]here is not an identifiable difference between [negligent training and supervision claims] in Alabama cases.” Zielke v. AmSouth Bank, N.A., 703 So.2d 354, 358 n. 1 (Ala.Civ.App.1997) (alterations supplied). Thus, the requirement that a defendant have actual or constructive knowledge of an employee's unfitness applies to claims for negligent hiring, training, and supervision. See Portera v. Winn Dixie, 996 F.Supp. 1418, 1438 (M.D.Ala.1998).

In Jackson v. Cintas Corp., 391 F.Supp.2d 1075 (M.D.Ala.2005), the court granted the defendant's motion for summary judgment because the plaintiff did not present

any evidence that [the employee accused of sexual harassment] committed similar acts for a previous employer and that [the defendant] knew about these acts or should have discovered these acts in the exercise of due diligence. As such, the court finds that [the plaintiff] has failed to establish the essential elements of her negligent hiring claim.
Id. at 1100 (alterations supplied) (internal quotations omitted). As in Jackson, the plaintiff in this case alleges that Program Coordinator Sharperson “harassed” her,²⁹⁶ but does not present any evidence that defendant either knew or should have known that Sharperson harassed coworkers in the past, or that she harassed plaintiff during the period at issue.

296 Doc. no. 1 (Complaint) ¶¶ 18–23; doc. no. 22–1 (Deposition of Sheba Rhodes), exhibit 2 (Interrogatory Responses) ¶ 5.

Plaintiff denies alleging that Program Coordinator Sharperson engaged in harassment during her previous employment at Volunteers of America,²⁹⁷ and argues that, if defendant had checked Sharperson's references, it would have discovered that she was forced to resign from Volunteers of America “for stealing and Social Security fraud.” ²⁹⁸ Plaintiff admits, however, that even if defendant had discovered that Sharperson had engaged in stealing and fraud, that fact would not have placed defendant on notice of Sharperson's propensity to engage in FMLA retaliation. ²⁹⁹

297 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 180.

298 Id., exhibit 2 (Interrogatory Responses) ¶ 4.

299 Id. at 186, 189.

Plaintiff also denies reporting the alleged harassment to Executive Director Susan Klingel or Medicaid Program Coordinator Roslyn Bridges.³⁰⁰ Thus, plaintiff has produced no evidence to dispute Klingel's statement that she was not aware of problems between plaintiff and Program Coordinator Sharperson.³⁰¹ Accordingly, defendant is entitled to summary judgment on plaintiff's negligence claims because the record is devoid of evidence that defendant had actual or constructive knowledge of Sharperson's alleged unfitness.

300 Id. at 179.

301 Doc. no. 23–3 (Affidavit of Susan Klingel) ¶ 17.

Further, defendant argues that plaintiff's claim fails because Program Coordinator Sharperson did not commit a tort against her.³⁰²

302 Id. at 41.

Under Alabama law, “[a] party alleging negligent or wanton hiring, supervision, training, and retention must prove the underlying wrongful conduct of employees.” Thornton v. Flavor House Prods., Inc., Case No. 1:07–cv–712–WKW, 2008 WL 5328492, at *19 (M.D.Ala. Dec. 19, 2008) (citing Voyager Ins. Cos. v. Whitson, 867 So.2d 1065 (Ala.2003)). Additionally, the underlying wrongful conduct must be a “ ‘common-law, Alabama tort’ committed by the employee, not [ ] a federal cause of action such as Title VII.” Ellis v. Advanced Tech. Servs., Case No. 3:10–cv–555–WHA, 2010 WL 3526169, at *2 (M.D.Ala. Sept. 3, 2010) (quoting Thrasher v. Ivan Leonard Chevrolet, Inc., 195 F.Supp.2d 1314, 1320 (N.D.Ala.2002)).

...

Without an underlying tort claim, [an employee] cannot maintain his claims for negligent hiring, supervision, training, and negligent retention.
Trainer v. Supreme Beverage Co., No. 2:11–cv–00057–WMA, 2013 WL 169288, *18–19 (N.D.Ala. Jan. 10, 2013) (Acker, J.) (first two alterations in original) (third alteration supplied) (emphasis supplied).

“Alabama does not recognize an independent cause of action for sexual harassment.” Ex parte Carlisle, 26 So.3d 1202, 1204 n. 1 (Ala.2009). This state also does not recognize a claim for the tort of outrage by an employee who allegedly was “harassed, investigated without cause, humiliated, accused of improper dealings, treated uncustomarily, and terminated without justification.” American Road Service Co. v. Inmon, 394 So.2d 361, 367 (Ala.1980). Accordingly, defendant is likewise entitled to summary judgment on plaintiff's negligence claims because Program Coordinator Sharperson is not accused of a tort.

G. Damages for Reinstatement, Front and Back Pay, and Injunctive and Equitable Relief

Defendant moves for summary judgment on plaintiff's requests for reinstatement, front and back pay, and injunctive and equitable relief in light of after-acquired evidence that plaintiff did not disclose her criminal conviction on her employment application.³⁰³

303 Doc. no. 21 (Brief in Support of Motion for Summary Judgment), at 36.

In McKennon v. Nashville Banner Publishing Co., [513] U.S. [352], 115 S.Ct. 879, 130 L.Ed.2d 852 (1995), a case involving an alleged violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), the Supreme Court held that after-acquired evidence of wrongful conduct during employment that would have resulted in termination does not “operate[ ], in every instance, to bar all relief for an earlier violation of the Act.” Id. at [358], 115 S.Ct. at 884. The Court held, however, that “the after-acquired evidence of the employee's wrongdoing bears on the specific remedy to be ordered.” Id. at [360], 115 S.Ct. at 885. The Court determined that in cases in which an employee commits an act during employment that would lead to termination and the employer finds out about the act during the course of litigation, “neither reinstatement nor front pay is an appropriate remedy.” Id. at [362], 115 S.Ct. at 886. The Court then discussed backpay, holding that it should be calculated “from the date of the unlawful discharge to the date the new information was discovered,” with the court “taking into further account extraordinary equitable circumstances that affect the legitimate interests of either party.” Id.
Wallace v. Dunn Construction Co., 62 F.3d 374, 378 (11th Cir.1995) (alterations and emphasis supplied). The Eleventh Circuit has explicitly concluded that the reasoning underlying the holding in McKennon “applies with equal force when the after-acquired evidence concerns an employee's fraud in the application process.” Wallace, 62 F.3d at 377 (emphasis supplied). Accordingly, the Eleventh Circuit reversed the denial of a employer's motion for summary judgment on an employee's claims for reinstatement, front pay, and injunctive relief because the employee failed to disclose her drug convictions on her employment application. Id. at 381. This Circuit has continued to follow McKennon in subsequent cases. See, e.g., Crapp v. City of Miami Beach, 242 F.3d 1017, 1021 (11th Cir.2001) (quoting McKennon, 513 U.S. at 362, 115 S.Ct. 879).

Multiple courts have applied the same analysis to claims for damages pursuant to the FMLA. See, e.g., Throneberry v. McGehee Desha County Hospital, 403 F.3d 972, 976–80 (8th Cir.2005); Miller v. AT & T Corp., 250 F.3d 820, 837 (4th Cir.2001); Edgar v. JAC Products, Inc., 443 F.3d 501, 512–14 (6th Cir.2006). In Calvert v. Smith's Food & Drug Centers, Inc., No. 2:06–CV–299–TS, 2007 WL 4207198 (D.Utah Nov. 26, 2007), the plaintiff sued his former employer for FMLA violations, and the employer moved for summary judgment on damages because the plaintiff did not disclose his criminal convictions on his employment application. Id. at *7. In limiting the plaintiff's damages to the period between his termination and the date that the defendant discovered his criminal history, the Calvert court noted that

Plaintiff does not contest his criminal history. In fact, Plaintiff testified about his criminal history during his deposition. Further, Plaintiff admitted that he answered his employment application incorrectly with regard to that criminal history. Finally, Plaintiff has come forward with no evidence to dispute the Affidavit of Alan Brown which states that “[h] ad [the defendant] known of Plaintiff's extensive criminal history and his dishonesty, as exhibited in his employment application, [the defendant] would have immediately terminated Plaintiff's employment on October 2, 2006.”
Id. (alterations supplied) (footnote omitted).

As in Calvert, the plaintiff in this case has admitted that she was convicted of a misdemeanor, and that she did not disclose her conviction on her employment application. Specifically, plaintiff was convicted of a misdemeanor for “under-ringing” items during her employment as a cashier at Wal–Mart. ³⁰⁴ As part of her application, however, plaintiff answered “No” to the question: “Have you ever been convicted of a crime?” ³⁰⁵ Plaintiff also signed a certification stating that “the facts containedin [the] application are true and complete.” ³⁰⁶

304 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 8–9, 22. For a definition of “under-ringing,” see http:// www. termwiki. com/ EN: under- ring.

305 Doc. no. 22–1 (Deposition of Sheba Rhodes), exhibit 1(Employment Application), at 4.

306 Id. (alteration supplied).

Further, plaintiff has produced no evidence to dispute Executive Director Klingel's testimony that “[defendant] considers false statements in applications very serious, [that Klingel] will not hire or retain individuals who make false statements,” and that, “[h]ad [Klingel] known about [plaintiff's] falsification of her application at a time when she was applying for employment or employed by [defendant], [Klingel] would have refused to hire [plaintiff] or terminated her employment.” ³⁰⁷ Indeed, plaintiff admitted that, in light of the certification of completeness, making a false statement on her employment application was grounds for her termination. ³⁰⁸

307 Doc. no. 23–3 (Affidavit of Susan Klingel) ¶¶ 18–19 (alterations supplied).

308 Doc. no. 22–1 (Deposition of Sheba Rhodes), at 22–23.

Because plaintiff's damages are limited to the period between the date of her termination (August 12, 2010) and the date that the Executive Director Susan Klingel discovered her criminal history ( i.e., the date of plaintiff's deposition taken on February 3, 2012),³⁰⁹ this court will grant the motion for summary judgment on plaintiff's requests for reinstatement, front pay, and injunctive and equitable relief. It will also limit plaintiff's back pay to the seventeen-month period between her termination on August 12, 2010 and her deposition on February 3, 2012.³¹⁰

309 Doc. no. 23–3 (Affidavit of Susan Klingel) ¶ 19.

310 Thus, this discussion need not reach defendant's claim that this court should limit plaintiff's damages in light of after-acquired evidence that she failed to report Program Coordinator Kertrina Sharperson's alleged violations of Christina's Behavior Support Plan. See doc. no. 21 (Brief in Support of Motion for Summary Judgment), at 37.

VI. CONCLUSION

This court will enter an appropriate order, consistent with this opinion, and granting: (1) the motion to hold admitted defendant's undisputed facts numbers 68 and 69, with the exception of the portion of defendant's undisputed fact number 68 which states that Aide Gina Brand “told [Program Coordinator Kertrina Sharperson that plaintiff] was engaging in a practice of instructing Christina to place her head down and encouraging aides to leave her alone,” (2) the motion to strike portions of the affidavit of Constance Jones, (3) the motion for summary judgment on plaintiff's state-law claims for negligent hiring, training, supervision, and retention, and (4) the motion for summary judgment on plaintiff's damages requests for reinstatement, front pay, and injunctive and equitable relief. Plaintiff's request for back pay will be limited to the period between her termination on August 12, 2010 and her deposition on February 3, 2012. The remaining portions of defendant's motions will be denied.