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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

TRACY A. ARNOLD

Plaintiff,

v. Case No.: 3:09-cv-572-RV-MD

NORTH OKALOOSA MEDICAL

CORPORATION d/b/a NORTH

OKALOOSA MEDICAL CENTER,

Defendant.

___________________________/

ORDER

The defendant, North Okaloosa Medical Corporation d/b/a North Okaloosa

Medical Center, has filed a motion for summary judgment (doc. 32). The plaintiff,

Tracy A. Arnold, has not opposed this motion.1

I. Background

The following facts are taken from defendant’s statement of facts in support

of its motion for summary judgment. Pursuant to Local Rule 56.1, which addresses

summary judgment motions, “[a]ll material facts set forth in the statement required

to be served by the moving party will be deemed admitted unless controverted by

the statement required to be filed and served by the opposing party.” Accordingly,

because the plaintiff has not opposed the summary judgment motion, these facts

are undisputed. 

1

 The motion was filed on July 1, 2010. Nineteen days later, on July 20th, I

entered an order stating that the motion would be taken under advisement by the

court on August 3rd, and that all relevant documents and materials were required

to be filed by that time. 

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In September 2006, the defendant hired the plaintiff as a phlebotomist in its

laboratory department. The written job description for this job required occasional

lifting, carrying, and/or pushing up to (and in excess of) fifty pounds. The plaintiff

signed the job description and specifically acknowledged: “I have reviewed these

job requirements and verify that I can perform the minimum requirements and

essential functions of this position.” In early 2007, the plaintiff became pregnant.

The pregnancy was high risk, and her obstetrician restricted her to lifting, carrying,

pushing, and/or pulling no more than six to ten pounds. Because these restrictions

meant that she could not meet her job description, and because the defendant had

a written policy which provided that employees would not be allowed modified or

restricted duty (unless such restrictions were necessitated by an on-the-job injury),

the plaintiff was placed on leave under the Family Medical Leave Act (“FMLA”).

On October 18, 2007, the plaintiff went into labor, but the baby expired. By

letter dated November 15th, her doctor excused her from work through December

1st. By letter of December 14th, the defendant advised the plaintiff that if she did

not return to work prior to the expiration of her FMLA status (on December 18th)

then her phlebotomist position would not be guaranteed. The plaintiff received the

letter, but did not return to work at that time. Thereafter, on January 7th, she was

advised that her position was no longer guaranteed and that if she did not start in

another position with the company by March 19th, she would be discharged. She

inquired about other job positions with the defendant, but the positions had already

been filled. Because she did not return to work in her phlebotomist position before

the exhaustion of her FMLA leave, and did not timely return to another position at

the company, she was terminated on March 19, 2008. 

On or about November 25, 2009, the plaintiff filed a two-count complaint in

the Circuit Court in and for Okaloosa County, alleging pregnancy discrimination in

violation of Title VII and the Florida Civil Rights Act. In this complaint, the plaintiff

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did not appear to challenge the discharge decision for her failure to return to work.

Rather, in contravention of the written job description for her position, she alleged

that her phlebotomist duties “did not ever require any lifting over 5 pounds.” She

thus claimed that defendant had improperly placed her on FMLA leave in the first

place because “she was still able to perform her customary duties.” She further

suggested in her complaint (and intimated during deposition) that if she had been

unable to perform her job, she should have been given a more sedentary position

(“a sit down job”) instead of being put on leave, as the defendant had done with

other unnamed employees in the past. She alleged that putting her on FMLA leave

(and/or not providing a sedentary position) “imposed a disparate impact on Plaintiff

on the basis of sex.” The defendant removed the case to this court and now moves

for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.

II. Discussion

Summary judgment pursuant to Rule 56 is appropriate 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); accord Reeves v. C.H. Robinson Worldwide,

Inc., 594 F.3d 798, 807 (11th Cir. 2010). “[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); accord Equity Investment Partners, LP

v. Lenz. 594 F.3d 1338, 1345 (11th Cir. 2010).

As previously noted at the outset of this order, the plaintiff has not opposed

the defendant’s motion for summary judgment. Under the Local Rules of this court,

that is an adequate basis, in and of itself, to grant the motion. See N.D. Fla. Loc. R.

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7.1(C)(1) (“Failure to file a response memorandum [to a motion] may be sufficient

cause to grant the motion.”). However, I have undertaken an independent review of

the case. After reviewing the motion, supporting materials, and relevant case law, I

find that there is no genuine issue of material fact and that the defendant is entitled

to summary judgment. As the defendant accurately notes, the facts of this case are

remarkably similar to the facts presented in Spivey v. Beverly Enterprises, Inc., 196

F.3d 1309 (11th Cir. 1999), and McQueen v. AirTran Airways, 2005 WL 3591100

(N.D. Fla. Dec. 30, 2005), cases in which the courts rejected both arguments that

the plaintiff advances here. In McQueen, for example, the pregnant employee was

involuntarily put on FMLA leave because her doctor had imposed lifting restrictions

that were beyond her written job description. The employee claimed, however, that

she was “willing and able to perform her duties” and that her employer had put her

on FMLA leave merely as a “ruse” for pregnancy discrimination. The district court

noted that the job description expressly required that she be capable of lifting more

than her doctor authorized, and to require the employer to ignore that restriction

(even though the plaintiff claimed that she could do it) “‘would trap employers

between the Scylla of liability for following medical advice and the Charybdis of

different liability for ignoring the same.’” McQueen, supra, 2005 WL 3591100, at

*4 (citation omitted).2

As for the plaintiff’s claim that she should have been given a modified (or

more sedentary) position in lieu of being placed on FMLA leave, Spivey directly

forecloses that claim. See 196 F.3d at 1312-13 (holding that employers are under

no obligation to provide pregnant employees with modified job duties even though

employees injured on-the-job might be allowed such modified duty; the law “does

2

 I also note that the record contains no evidence that the lifting requirement

in the job description was not bona fide and/or not enforced against all employees

equally (as the plaintiff had impliedly alleged in her complaint).

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not require that employers give preferential treatment to pregnant employees” and,

therefore, employers are “free to provide an accommodation to employees injured

on the job without extending this accommodation to pregnant employees”). In any

event, the plaintiff testified in no uncertain terms during her deposition that she

never asked for restricted hours, modified duty, or “any special accommodations”

of any kind. If an employer is not required to provide modified duty to a pregnant

employee who asks for it (as occurred in Spivey), then clearly an employer is not

required to volunteer such modified duty.

In sum, there is no genuine disputed issue of material fact on this record and

summary judgment is appropriate.

III. Conclusion

As stated above, the defendant’s motion for summary judgment (doc. 32) is

GRANTED. The Clerk is directed to enter judgment in favor of defendant, together

with taxable costs, and close this case. 

 

DONE and ORDERED this 6th day of August, 2010.

/s/ Roger Vinson 

ROGER VINSON

Senior United States District Judge

Case No.: 3:09-cv-572-RV-MD