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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

DE-UNDRE ATKINS,

Plaintiff,

vs. CASE NO. 3:09cv561/RS-EMT

WAYNE-DALTON CORPORATION,

Defendant.

_________________________________________/

ORDER

Before me is Defendant‟s motion for summary judgment (Doc. 39). 

I. STANDARD OF REVIEW

The basic issue before the court on a motion for summary judgment is 

“whether the evidence presents a sufficient disagreement to require submission to a 

jury or whether it is so one-sided that one party must prevail as a matter of law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S. Ct. 2505, 2512 (1986). 

The moving party has the burden of showing the absence of a genuine issue as to 

any material fact, and in deciding whether the movant has met this burden, the 

court must view the movant‟s evidence and all factual inferences arising from it in 

the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 

U.S. 144 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). 
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Thus, if reasonable minds could differ on the inferences arising from undisputed 

facts, then a court should deny summary judgment. Miranda v. B & B Cash 

Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank 

& Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, 

a mere „scintilla‟ of evidence supporting the nonmoving party's position will not 

suffice; there must be enough of a showing that the jury could reasonably find for 

that party. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing

Anderson, 477 U.S. at 251). 

II. BACKGROUND

I accept the facts in the light most favorable to Plaintiff. See Galvez v. 

Bruce, 552 F.3d 1238, 1239 (11th Cir. 2008) (citing Vinyard v. Wilson, 311 F.3d 

1340, 1343 n.1 (11th Cir. 2002)). “„All reasonable doubts about the facts should 

be resolved in favor of the non-movant.‟” Id. (quoting Burton v. City of Belle 

Glade, 178 F.3d 1175, 1187 (11th Cir. 1999); Clemons v. Dougherty County, 684 

F.2d 1365, 1368-69 (11th Cir. 1982). 

Plaintiff Atkins was an employee at Wayne-Dalton and had worked there for 

approximately six years. In 2008, Plaintiff‟s wife was pregnant. She was a highrisk pregnancy, and during the course of her pregnancy her doctor directed her to 

go to the emergency room on four separate occasions because of pregnancy 
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complications. She was restricted from working during the last month of her 

pregnancy. 

On May 22, 2008, Plaintiff‟s wife was in pain and experiencing premature 

contractions. Her doctor directed her to leave her work and go straight to the 

emergency room, which she did, and she was admitted to the hospital. She 

contacted Plaintiff and told him she needed him at the hospital. Plaintiff could not 

find his supervisor, Jack Miller, so he told the stand-in supervisor, Lee Hull, about 

the situation. Hull authorized him to leave to go to the hospital. Plaintiff‟s wife 

was instructed by her doctor not to work for the next five days.

Plaintiff‟s next work day was May 27th. Upon his arrival at work, Plaintiff 

provided a doctor‟s note verifying that he had been at the hospital with his wife on 

May 22nd. Plaintiff also spoke to human resources about his absence, and 

explained to human resources that his wife was having complications with her 

pregnancy.

Later on May 27, 2008, Plaintiff‟s wife called him to inform him that she 

was experiencing further complications and her doctor had called her in for an 

unscheduled emergency appointment. Plaintiff informed Miller that he might need 

to leave work to be with his wife at the doctor, but he did not yet know. Miller 

said “okay.” During Plaintiff‟s lunch break, his wife called him again and told him 

that because of ongoing complications, she needed him there with her at her 
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emergency appointment. Plaintiff approached Miller and informed him that his 

wife was having pregnancy complications and that he needed to leave to be with 

her. Plaintiff then left to attend to his wife, who was released from the hospital and 

instructed to immediately stop working until she gave birth to her child, which was 

not for another month. 

The following day, May 28th, Plaintiff was terminated for absences. The 

department head referred to three disciplinary write-ups Miller had drafted. One 

was written on May 22nd and concerned a month-old incident that had nothing to 

do with absences and which had not resulted in any discipline in the intervening 

month. The other two documents referred to Plaintiff leaving work on May 22nd 

and on May 27th. 

Plaintiff now brings claims against Defendant for violating the Family and 

Medical Leave Act and for racial discrimination under both Title VII of the Civil 

Rights Act of 1964 and the Florida Civil Rights Act of 1992. Defendant has 

moved for summary judgment on all counts. 

III. ANALYSIS

Family and Medical Leave Act

Defendant has argued that it is entitled to summary judgment on Plaintiff‟s 

claim under the Family and Medical Leave Act (“FMLA”) because (1) Plaintiff‟s 

wife did not have a serious health condition, (2) Defendant did not know that 
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Plaintiff‟s absences were due to his wife‟s serious health condition, and (3) 

Plaintiff‟s termination was not causally related to his FMLA leave requests. 

Although a normal pregnancy might not qualify as a “serious health 

condition” under the FMLA, pursuant to 29 C.F. R. § 825.115(b) “any period of 

incapacity due to pregnancy, or for prenatal care” does qualify as a serious health 

condition. “The term “incapacity” means inability to work, attend school or 

perform other regular daily activities due to the serious health condition, treatment 

therefore, or recovery therefrom.” 29 C.F.R. § 825.113(b). Plaintiff has produced 

evidence that his wife had serious medical complications with her pregnancy and 

she was left unable to work during her pregnancy. Therefore, Plaintiff has 

produced sufficient evidence from which a jury could reasonably conclude his wife 

suffered from a serious health condition, and summary judgment is not appropriate 

on these grounds.

Next, Defendant alleges it did not know that Plaintiff‟s absences were due to 

his wife‟s serious health condition. However, Plaintiff has produced evidence that 

he notified both his supervisor as well as the Human Resources Department about 

his wife‟s serious health condition and his reason for leaving. This is sufficient 

information for an employer to reasonably determine whether the FMLA might 

apply to his leave request. See 29 C.F.R. § 825.303(b). Plaintiff has also presented 

evidence that he attempted to provide to his employer additional documentation on 
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May 28th (the day after his final absence) as to the FMLA reason for his absences, 

but his employer refused to hear the information. There is a significant dispute 

between the parties over the material facts of this situation and what Plaintiff told 

Defendant and when. These issues of fact must be resolved by a jury, and 

therefore summary judgment is not appropriate.

Finally, to establish a prima facie case of retaliation, a plaintiff must show a

causal connection between the protected conduct and the adverse employment 

action. Smith v. BellSouth Telecommunications, Inc., 273 F.3d 1303, 1314 (11th 

Cir. 2001). Defendant alleges that Plaintiff‟s termination was not causally related 

to his FMLA leave requests. However, Plaintiff disputes Defendant‟s contention 

and has presented evidence that the management at Wayne-Dalton knew about his 

FMLA requests and still terminated his employment based on his absence for 

FMLA protected activity. This disputed issue of fact clearly must be determined 

by a jury and therefore summary judgment is not appropriate.

Racial Discrimination

Plaintiff has brought a claim for racial discrimination under both Title VII of 

the Civil Rights Act of 1964 and the Florida Civil Rights Act (“FCRA”). Because 

the FCRA was patterned after Title VII, federal case law is applicable to both 

claims. Florida Dept. of Community Affairs v. Bryant, 586 So.2d 1205, 1209 (Fla. 

1st DCA 1991). 
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To establish a claim for racial discrimination, a plaintiff may use direct 

evidence or circumstantial evidence of discrimination. Burke-Fowler v. Orange 

County, 447 F.3d 1319, 1323 (11th Cir. 2006). Here, Plaintiff bases his case on 

circumstantial evidence of discrimination. The framework established by the 

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 

1817 (1973), and Texas Department of Community Affairs v. Burdine, 460 U.S. 

248, 101 S.Ct. 1089 (1981) is used in evaluating disparate treatment claims 

supported by circumstantial evidence. See Wilson v. B/E Aerospace, 376 F.3d 

1079, 1087 (11th Cir. 2004). To establish a prima facie case of discrimination, the 

Plaintiff must show that (1) he is a member of a protected class; (2) he was 

subjected to an adverse employment action; (3) his employer treated similarly 

situated employees outside of his protected class more favorably than he was 

treated; and (4) he was qualified to do the job. Burke-Fowler v. Orange County, 

Fla. 447 F.3d 1319, 1323 (11th Cir. 2006). 

In its summary judgment motion, Defendant only disputes the third prong, 

arguing Plaintiff has not presented evidence of a similarly situated comparator. 

Plaintiff concedes this point, but argues that under Jones v. Bessemer Carraway 

Med. Ctr., 151 F.3d 1321, 1323 (11th Cir. 1998), he can establish a prima facie 

case of racial discrimination based solely on “racial comments” made by his 
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supervisor Jack Miller, without showing that a similarly situated employee outside 

a protected class was treated more favorably. 

In Jones, the Eleventh Circuit assumed “for the sake of argument that a 

plaintiff might be able to establish, by circumstantial evidence, a prima facie case 

even in the absence of showing that a similarly situated, nonminority employee has 

not been dismissed.” Jones at 1323. However, the Court ultimately concluded that 

the statements at issue in Jones were not enough to establish a prima facie case

because they were not associated with the events leading to the plaintiff‟s 

discharge. Id. Thus, one could not infer that it was more likely than not that her 

termination was based on an illegal discriminatory criterion. Id. 

Here, we have absolutely no detail about Miller‟s alleged racial “jokes” or 

“comments.” Plaintiff has not presented evidence of a single specific statement 

that was made by Miller for the Court to consider. Plaintiff also gives no context 

or time frame as to when the comments were made, particularly in relation to the 

date of his termination. 

Even with specific examples of negative racial comments by a supervisor, 

the Eleventh Circuit concluded that there was insufficient evidence to establish a 

prima facie case without a demonstrable link between the comments and the events 

leading to the plaintiff‟s termination. Jones at 1323. Therefore, in the instant case 

the broad allegations of unspecified racial comments without any evidence that 
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they are linked, temporally or otherwise, to Plaintiff‟s termination are not sufficient 

evidence from which a jury could conclude that it is more likely than not that 

Plaintiff‟s termination was based on racial discrimination. Summary judgment is 

therefore appropriate for Defendants on Counts I and II.

IV. CONCLUSION

Summary judgment is granted for Defendant against Plaintiff as to Count I 

and Count II. Summary judgment is denied as to Count III.

ORDERED on October 20, 2010.

/s/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE